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iminal Appeal No. 58 of 1959. Appeal by special leave from the judgment and order dated November 7, 1958, of the orissa High Court in Original Criminal Misc. Case No. 8 of 1958. A.V. Viswanatha Sastri, H. B. Khanna and T. M. Sea, for the appellant. H. N. Sanual, Additional Solicitor General of India, B. M. Patnaik, ;section N. Andley, J. B. Dadachanji and Ramewar Nath, for respondent No. 1. 1961. March 14. The Judgment of the Court was delivered by MUDHOLKAR, J. In this appeal by special leave, the appellant who has been found guilty of contempt of court by the High Court of Orissa is challenging his conviction. To this appeal, as well as to criminal appeal 2 of 1960 in which another person is challenging his conviction for contempt of court by the same High Court, the Chief Justice and the Judges of the High Court have been made parties. The learned Additional Solicitor General who has put in an appearance for a limited purpose has raised a point that in such matters it is not at all necessary to make the Chief Justice and the Judges of the High Court parties. He points out that in England in all contempt matters the usual title of the proceeding is "in re. . . . (so and so)", that is the person who is proceeded against for contempt. The same practice, according to him, is followed in appeals. We must, however, point out that in appeals preferred to 321 the Privy Council from convictions for contempt by the High Courts in India as well as in appeals before this Court, the Chief Justice and the Judges of the High Court concerned have been made respondents. In Ambard vs Attorney General for Trinidad& Tobago (1) we find that the Attorney General was made a party to the appeal. The question raised by the learned Additional Solicitor General is of some importance and we think it desirable to decide it. In every suit or appeal persons who claim relief or against whom relief has been given or persons who have or who claim the right to be heard must undoubtedly be made parties. That is because they have an interest in the decision or the result of that case. But where Judges of a High Court try a person for contempt and convict him they merely decide a matter and cannot be said to be interested in any way in the ultimate result in the sense in which a litigant is interested. The decision of Judges given in a contempt matter is like any other decision of those Judges, that is, in matters which come up before them by way of suit, petition, appeal or reference. Since this is the real position we think that there is no warrant for the practice which is in vogue in India today, and which has been in vogue for over a century, of, making the Chief Justice and Judges parties to an appeal against the decision of a High Court in a contempt matter. We may point out that it is neither necessary nor appropriate to make the Chief Justice and the Judges of a High Court parties to a legal proceeding unless some relief is claimed against them. In a contempt matter there is no Question of a relief being claimed against the Chief Justice and the Judges of the High Court. The present practice should, therefore, be discontinued and instead, as in England, the title of such proceedings should be "in re. . (the alleged contemner)". Now we address ourselves to the merits of this case. The appellant was a Sub Divisional Magistrate at Dhenkanal in the year 1957. In a criminal matter (1)(1936) A.C. 322. 41 322 before him a Magistrate III class, Dhenkanal passed an order under section 522, Criminal Procedure Code putting the complainant, one Golam Mohammed in possession of some property. The order was actually executed Pion October 14, 1955. It was also confirmed by the Additional District Magistrate in appeal. It was, however, set aside by the High Court in revision on August 27, 1957. The opposite party, one Sarif Beg, thereupon made an application on November 20,1957 before the appellant for redelivery of possession. This application was opposed by Golam Mohammed. It was heard by the appellant on November 21, 1957, and order was reserved till November 23, 1957. Apparently the order was not ready and so the matter was adjourned to November 27, 1957. That day the application was allowed and compliance was directed by December 2, 1957. While these proceedings were going on, an application was made by the complainant to the High Court apparently for a review of its previous order. By order dated November 25, 1957 this application was admitted by P. V. Balakrishna Rao J. He also granted an interim stay of the proceedings in the case before the Sub Divisional Magistrate, Dhenkanal but did not direct that the said order should be communicated to the Sub Divisional Magistrate by telegram. On November 26, 1957 an application bearing an illegible signature was made to the Magistrate in which, amongst other things, it was stated "that the petition being not maintainable the opposite party has once more moved the Hon 'ble High Court in the matter and it has been ordered that further proceedings should be stayed until the disposal of the opposite party 's revision". Evidently, by "opposite party" the applicant meant himself and by "revision" he meant the review application made by him. Along with this application the complainant filed a telegram addressed to Mr. Neelakanth Misra, Pleader, Dhenkanal saying "Golam Mohammad 's case further proceedings stayed, Ram". It does not appear from the order sheet of the Magistrate that in the proceedings before him Mr. Neelakanth Misra represented the complainant. However, we will assume that he did so. Even then, there 323 is nothing to indicate as to who "Ram" is. There is no suggestion that he was the Advocate who represented the complainant before the High Court in the proceeding before it. It would appear that on November 7 25, 1957 the Sub Divisional Magistrate was out of,, headquarters and, therefore, the second officer directed that the application be placed before the Sub Divisional Magistrate on his return. The Sub Divisional Magistrate refused to act on this telegram but made the following endorsement on November 27, 1957 on what is said to be the complainant 's application: "No action can be taken on telegram, File." He then proceeded to deliver his/ order on the opposite party 's application for restitution. A copy of the order of the High Court was received at Dhenkanal on November 28, 1957. On that day the Sub Divisional Magistrate was absent and the second officer made the following entry in the order sheet: "Seen. A.D.M 's D.S. No. 326 dated 28 11 57. In Cr. Case No. 90/57 Hon 'ble High Court has stayed further proceedings. Stay further proceedings. Put up before S.D.M. Inform parties. " Consequent oil this endorsement no writ for re delivery of possesion was issued and thus the status quo was maintained. Upon perusal of the records on August 18, 1957 in connection with the application for review made by the complainant the High Court ordered the issue of a notice to the appellant on August 25, 1958 to show cause why he should not be committed for contempt. The appellant in a lengthily statement explained all the facts and also stated that he had not the slightest intention to disobey or go beyond the orders and directions of the High Court and that he passed the order dated November 27, 1957 because the complainant 's application for stay was not accompanied by an affidavit; nor was it signed by the complainant or his lawyer. He further stated that he should not be held liable for contempt because he had "no intention to prejudice or affect the course of justice in the disposal of the matter pending before the High 324 Court" and added that he acted in good faith in discharge of his official duties. Finally he stated that if after considering his explanation the Court found him guilty of disobeying its order he expressed his regret and tendered his apology for what he had done. This apology was regarded as merely a conditional apology and was not accepted. After an elaborate consideration of the case law on the question of disobedience of orders by subordinate courts, the High Court found the Sub bivisional Magistrate guilty of contempt and sentenced him to pay a fine of Rs. 100. By the same order the High Court dismissed the review application preferred before it by the complainant. Before a subordinate court can be found guilty of disobeying the order of the superior court and thus to have committed contempt of court, it is necessary to show that the disobedience was intentional. There is no room for inferring an intention to disobey an order unless the person charged had knowledge of the order. If what a subordinate court has done is in utter ignorance of an order of a superior court, it would clearly not amount to intentional disobedience of that court 's order and would, therefore, not amount to a contempt of court at all. There may perhaps be a case where an order disobeyed could be reasonably construed in two ways and the subordinate court construed it in one of those ways but in a way different from that intended by the superior court. Surely, it cannot be said that disobedience of the order by the subordinate court was contempt of the superior court. There may possibly be a case where disobedience is accidental. If that is so, there would be no contempt. What is, therefore, necessary to establish in a case of this kind is that the subordinate court knew of the order of the High Court and that knowing the order it disobeyed it. The knowledge must, however, be obtained from a source which is either authorised or otherwise authentic. In the case before us it is not clear as to who the person who signed the application dated November 27, 1957 was because the signature is illegible. It was not countersigned by a pleader nor is there anything to show that it was presented 325 in court by a pleader authorised to appear on behalf of the complainant. Furthermore, it was not accompanied by an affidavit. Therefore, there could be no guarantee for the truth of the facts stated there The in. No doubt, it was accompanied by a telegram and even though it was addressed to a pleader there is nothing to indicate that he was authorised to appear for the complainant. Further it is not possible to say as to the capacity of the sender. Had the telegram been received from the court or from an advocate appearing on behalf of the complainant before the High Court and addressed either to the court or pleader for the complainant different considerations would have arisen and it may have been possible to take the view that the information contained therein had the stamp of authenticity. Of course, we do not want to lay it down here as law that every telegram purporting to be signed by an advocate or a pleader is per se guarantee of the truth of the facts stated therein and also of the fact that it was actually sent by the person whose name it bears. In order to assure the Court about these matters an affidavit from the party would be necessary. Upon the materials before us we are satisfied that the Sub Divisional Magistrate was entitled to ignore the telegram as well as the application. We, therefore, hold that his refusal to act on the telegram did not amount to contempt of court. We may add that the fact that on receiving a copy of the High Court 's order through the Additional District Magistrate not only were further proceedings stayed but a writ to redeliver possession was not permitted to issue. This would show clearly that there was no intention on the part either of the Sub Divisional Magistrate or the second officer to disobey the order of the High Court. The conviction as also the fine of the appellant is erroneous and accordingly set aside. Appeal allowed.

Under an order passed by the appellant, a Magistrate, one G was put in possession of some property on October 14, 1955. in revision the order was set aside by the High Court on August 27, 1957, and the opposite party S applied, on November. 20, 1957, to the appellant for redelivery of possession. G applied to the High Court for a review of its previous order and on November 25, 1957, the application was admitted and an interim stay was granted of the proceedings before the appellant. On November 26, 1957, an application bearing an illegible signature and not Supported by an affidavit was filed before the appellant indicating that the High Court had stayed the proceedings. A telegram addressed to a pleader, not the Counsel for G, was filed along with the application. The appellant refused to act on this application and telegram and on November 27, 1957, he passed an order allowing the application of S for restitution. On November 28, 1957, a copy of the order of the High Court was received and thereupon the writ for redelivery of possession was not issued. The High Court convicted the appellant for contempt of court for passing the order for restitution on November 27, when the High Court had stayed the proceedings. The appellant appealed to the Supreme Court and impleaded the Chief justice and judges of the High Court as respondents. 320 Held, that the appellant was not guilty of cortempt of court. Before a subordinate court can be held to be guilt, of contempt of court it must be stablished that it had knowledge of the order of the High Court and intentionally disobeyed it. The knowledge must be obtained from a source which was either authorised or otherwise authentic. In the present case the appellant was entitled to ignore the application as well as the telegram. In a contempt matter the Chief justice and judges of the High Court should not be made parties and the title of such a proceeding should be "In re. . the alleged contemnor".

The appellant, against whom an offence under sec. 307 I.P.C. had been registered for giving knife blows to a person was granted bail by the Sessions Judge. On application by the State, a Single Judge of the High Court cancelled the bail. Hence this appeal by special leave. Allowing the appeal, ^ HELD: Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well settled that the power to grant bail is not to be exercised as if the punishment before trail is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. [842 D E] In the instant case the order made by the High Court is conspicuous by its silence on these two relevant considerations. The learned Judge was impressed by some of the most irrelevant considerations and misdirected himself. The circumstances found by him that the victim attacked was a social and political worker could not be considered so overriding as to permit interference by the High Court with the discretionary order of the Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation on the bail. [842 B C]

Civil Appeal No. 563 of 1975 filed in the Court was directed against the Judgment of the High Court in an Income tax Reference. The respondent (assessee) was a registered co operative Society, carrying on business of manufacture and sale of sugar. The respondent had established a fund called "Loss Equalisation and Capital Redemption Reserve Fund" to which it added, during the relevant accounting year, a sum of Rs.5,15,863 by deduction from the price payable by the respondent to its members for the supply of sugarcane received from the members. The deductions were made under bye law 50 of the Byelaws of the society, which was amended later. The Income tax Officer in assessing the respondent for the relevant assessment year held that the sum above mentioned represented a revenue receipt and was liable to be included in the taxable income of the assessee. On appeal, the Assistant Commissioner affirmed the view of the Income tax Officer, holding that the case had to be decided on the basis of the bye law as it stood during the relevant accounting year. The respondent assessee appealed to the Income tax Appellate Tribunal, which held that the amended bye law was operative even during the relevant previous year in view of the retrospective amendment thereof and that in view of the said amended bye law 50 the deposits made by the members by way of deductions from the price as contemplated in the bye law 50 were in the nature of permanent liabilities and hence they were capital receipts and not liable to be included in the taxable income of the assessee. The Tribunal directed that the said amount of Rs. 5,15,863 be deducted 1035 from the taxable income of the assessee. At the instance of the appellant, a reference was made to the High Court for the determination of the question whether the Income tax Appellate Tribunal was right in holding that the amount of Rs.5,15,863 was not a revenue receipt liable to tax. The High Court answered the question in the affirmative and in favour of the assessee. The Commissioner of Income tax moved this Court by this appeal against the decision of the High Court. The appellant contended that the amendment of the bye law 50, which was purported to be made with retrospective effect, could have no retrospective effect in law. There was no delegation of power to the respondent society to make bye laws with retrospective effect. Allowing the appeal, the Court, ^ HELD:The respondent society had no authority in law to amend its bye law 50 with retrospective effect. The amendment of bye law 50 could not have any retrospective effect and the amounts deducted from the amounts payable to members for the supply of sugarcane, would have to be dealt with as if they were deducted under the provisions of bye law 50 as it stood in the relevant accounting period. If the provisions of the unamended bye law were applied, it was clear that the amounts deducted by the respondent from the price payable to its members on account of supply of sugarcane were deducted in the course of the trading operations of the respondent and these deductions were a part of its trading operations. The receipts by way of these deductions must be regarded as revenue receipts and were liable to be included in the taxable income of the respondent. Those receipts could not be regarded as deposits. The receipts constituted by the deductions were really trading receipts of the assessee society and were liable to be included in its taxable income. The High Court was in error and the question referred must be answered in favour of the revenue. [1042A, G H;1044D E] Civil Appeal No. 564 of 1975 was filed against the judgment of the High Court in an income tax reference in which the question referred for determination was whether a sum credited during the year of account to the loss equalisation and capital redemption reserve fund by deposits received from producer members of the society under clause 50 of its bye laws was in the nature of a revenue receipt assessable to tax. Allowing the appeal, the Court, 1036 HELD:In view of its decision in Civil Appeal No. 563 of 1975, the Court answered the question referred in the affirmative and in favour of the revenue. [1045A] Income tax Officer, Alleppey vs M.C. Poonnoose and Ors., ; ; Hukam Chand etc. vs Union of India & others; , ; Co operative Central Bank Ltd. & Ors. vs Additional Industrial Tribunal, Andhra Pradesh & Ors., ; Dr. Indramani Pyarelal Gupta vs W.R. Nathu and others; , ; Chowringhee Sales Bureau P. Ltd. vs Commissioner of Income tax West Bengal, and Punjab Distilling Industries Ltd. vs Commissioner of Income tax Simla, , referred to.

The respondents were the successful bidders at an auction of forest coupes in the State of Bihar. As they defaulted in making the security deposit in respect of three coupes, the agreements with them were determined by the Conservator of Forests. The respondents thereupon filed a writ petition in the Calcutta High Court instead of in the Patna High Court and followed it up with several applications one after another both in the Calcutta and Patna High Courts towards the forest department from preventing unauthorised removal of forest produce by the respondents. Vexed by the manner in which the respondent was filing repeated applications and procuring orders of a learned single judge of the High Court necessitating the filing of as many appeals to the Division Bench, the State of Bihar moved an application for committing the respondents for contempt of court, alleging that, by their conduct the respondents were obstructing the administration of justice and interfering with the due course of judicial proceedings. The Patna High Court held that the respondent 's conduct was most unscrupulous and that there was gross abuse of the process of the Court, which could in certain circumstances amount to contempt of Court. However, the High Court dismissed the application on the ground that it was barred by limitation as it was filed beyond the period of one year prescribed by section 20 of the Contempt of Courts Act. The High Court held, on a reading of the contempt application that the material allegation in regard to the contempt committed by the respondents was that relating to the filing of the application dated April 7, 1971 before the single judge of the Calcutta High Court to circumvent and nullify the order dated March 29, 1971 of the Division Bench of the Patna High Court. As the contempt application dated 18 7 73 in OCM 7/73 was filed more than a year later, it was timeshared. In regard to the allegation relating to the filing of the petition dated December 14, 1972, the High Court observed that there was no specific allegation that any contempt of court was committed by the filing of this application. Though the respondents tendered an unconditional apology, its acceptance was not considered as the application was found to be beyond time. Hence the appeal under section 19 of the . Allowing the State appeal, the Court ^ HELD: 1. Every abuse of process of the court may not necessarily amount to contempt of Court. Abuse of process of the Court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice is a contempt of Court. [1178A B] 2. It may be that certain minor abuses of the process of the court may be suitably dealt with as between the parties by striking out pleadings under the 1173 provisions of order 6, Rule 16 C.P.C. or in some other manner. But on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of Justice. [1178B C] 3. The public have an interest, an abiding and a real interest and a vital stake, in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the administration of justice and, so, it is entrusted with the power to commit for contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but to protect and to vindicate the right of the public that administration of justice shall not be prevented, prejudiced, obstructed or interfered with. [1178C E] Offutt vs U.S.p.11, quoted with approval. It is not necessary that every allegation made should be followed then and there by the statement that the allegation established a contempt of Court Paragraph 29 of the application to commit the respondents for Contempt expressly referred to the application dated December 14, 1972 and paragraph 31 state that all the facts and circumstances enumerated in the petition established that the respondents were obstructing and interfering with the due course of administration of justice. [1180F H] In the instant case: (a) the respondents began the "game" by filing an application under article 226 of the Constitution of India in the Calcutta High Court, whereas in the normal course one would expect such an application to be filed in the Patna High Court within whose jurisdiction the subject matter of dispute was situate. A justifiable prima facie inference from this circumstance may be that the application was not bonafide but intended to harass and oppress the opposite party. [1179C E] (b) Thereafter application after application was filed before the learned single Judge, everyone of them designed to circumvent, defect or nullify the effect of the orders of the Division Benches of the Calcutta High Court and Patna High Court. The order of the Division Bench of the Calcutta High Court directing the respondents to furnish security in a sum of Rs. 1,55,000/ was never complied with. The order of the Division Bench of the Patna High Court directing the respondents to furnish security of immovable property in a sum of Rs. 75,000/ and to deposit in cash or furnish bank guarantee in a sum of Rs. 50,000/ was also never complied with. Instead, an order was obtained from the single Judge of the Calcutta High Court restraining the State of Bihar from continuing the money suit in the Court of the Subordinate Judge, Palamau. When this order was set aside by the Division Bench, an attempt was made to circumvent all earlier orders by obtaining an order of the single Judge that they may be allowed to deposit a sum of Rs. 60,000/ in cash and permitted to remove the stock from the forest Coupes. When the State of Bihar moved the learned Subordinate Judge, Palamau for a direction to auction the attached stock, the respondents moved an application on December 14, 1972, and obtained an order from the Single Judge of the Calcutta High Court staying the proceedings in the 1174 money suit in the Court of the Subordinate Judge, Palamau. In considering the question whether the filing of the application dated December 14, 1972, amounts to a Contempt of Court, the Court must take into account the whole course of the continuing contumacious conduct of the respondents from the beginning of the 'game '. Clearly, not a single application made to the Single Judge was bonafide. Every application was a daring 'raid ' on the Court and each was an abuse of the process of the Court. The application dated December 14, 1972 praying that the proceedings in the money suit in the Court of the Subordinate Judge should be stayed was made despite the fact that earlier, on January 10, 1972 the Division Bench of the Calcutta High Court had expressly permitted the proceedings in the money suit to go on. The application of the respondents clearly showed that they were intent upon obstructing the due course of the proceedings in the money suit in the Court of the Subordinate Judge, Palamau and to obstruct the administration of justice by abusing the process of the Court. [1179GH, 1180A E] (c) The application dated December 14, 1972 was an abuse of process of the Court, calculated to obstruct the due course of a judicial proceeding and the administration of justice and was therefore, a criminal contempt of Court; [1180H, 1181A] (d) though the respondents had expressed an unconditional apology to the Patna High Court, the conduct of the respondents is so reprehensible as to warrant condemnation by the imposition of a sentence. [1181A]

The State filed an application under section 378(3) of the Cr.P.C, 1973, for leave to appeal against the acquittal of the respondents, of the charges under section 302 and 302/149 I.P.C., by the Trial Court. The application, although made under section 378(3) contained all the requisites for a memoran dum of appeal. The High Court granted the appellant leave to the appeal, but dismissed the appeal filed thereafter, on the ground that it had not been filed within ninety days of the date of judgment appealed from, and was therefore time barred under article 114(a) of the . Allowing the appeal by special leave the Court, HELD (1) The High Court has not laid down any rules in the matter of application for leave to appeal by the State. The matter will have to be decided in terms of section 378(1) and (3) of the Code of Criminal Procedure, 1973. An appeal can be filed by the State within ninety days from the date of the order of acquittal, and a prayer may be included in that appeal for entertaining the appeal under sub section (3) of section 378 Cr. The appeal may otherwise become time barred if the High Court takes more than ninety days for disposal of the application for leave, and refuses to exercise its jurisdiction to condone the delay. The right conferred under the section cannot be put in peril by an interpretation of section 378, Cr. P.C. which is likely to affect adversely or even perhaps to destroy that right. [141 C H] (2) The fact that the appellant 's application mentioned section 378(3) is not decisive of the true character of the application which to all intents and purposes was a memoran dum of appeal. [142 C D]

The respondents filed a suit against the petitioner in 1954 for the possession of certain property and for mesne profits and obtained decree in their favour. The petitioner 's appeal to the High Court was dismissed in April 1959 and a petition for special leave to appeal to this Court was granted in June, 1959. Thereafter, the 7th respondent died in November 1959. The petitioner filed the present applications in October 1964 for bringing on record the legal representatives of the 7th respondent and for condonation of delay on various grounds. It was also contended on behalf of the petitioner that in view of the fact that after the preliminary decree for mesne profits had been passed, the respondents/plaintiffs brought the heirs and legal representatives of the deceased 7th respondent on record in the final decree proceedings within the time prescribed, and as the legal representatives were brought on record at one stage of the suit on the basis of the rule laid down by the Privy Council in Brij Inder Singh vs Kanshi Ram, 44 I.A. 218, no question of abatement would arise in respect of the appeal; that the final decree proceedings are a stage in the suit and the appeal is another stage in the suit and, therefore, the bringing on record of the legal representatives in one stage of the suit will enure for all stages of the suit. HELD: (i) On the facts of the case there were no sufficient grounds for condoning the delay in bringing the legal representatives of the 7th respondent on the record. (ii) The order bringing the legal representatives of the respondent on record in the final decree proceedings cannot enure for the benefit of the appeal filed against the preliminary decree. The appeal therefore abated so far as the 7th respondent was concerned. [217D] An order bringing the legal representatives of a deceased party on the record passed at the stage of an interlocutory application in a suit, or passed while an appeal is pending where the suit is subsequently remanded to the trial court or if passed while an appeal is pending against an interlocutory order in passed while an appeal the subsequent stages of the suit ' in all that suit, would enure for made at one stage of the suit be it the suit these. cases the order is final appeal against the interlocutory order or final order in the suit, for here the appeal is only a continuation of the suit. But the same legal position cannot be invoked where an order is made in a suit subsequent to the filing of an appeal at an earlier stage. Such an order cannot be Projected,backwards into the appeal that has already been filed so as to become an order in that appeal [216F 217D] Brij Inder Singh vs Kanshi Ram, 44 I.A. 218 distinguished. Shankarnaraina Saralaya vs Laxmi Hengsu, A.I.R. 1931 referred to. N)3S.C.I. 1 212

The appellant, an Advocate whose name was borne on the rolls of the Madras High Court and of the Supreme Court, was found guilty of gross professional misconduct by the Madras High Court on the report of the Bar Council Tribunal and debarred from 1093 practising in that Court. The charge against him was that he did not utilise a particular sum of money entrusted to him by his client to clear a mortgage in order to secure a clear title for him in completion of a transaction of sale, for that purpose nor account for it. The appellant preferred an appeal by special leave and this Court, being apprised of the order passed by the ' Madras High Court, issued a Rule under r. 30, 0. IV of the Supreme Court Rules. It was found by this Court that the charge against the appellant was fully supported by a large volume of evidence on record, both oral and documentary. Held, that the appeal must be dismissed and the Rule made absolute and the appellant 's name removed from the roll of Advocates of this Court. It is a great privilege to be an Advocate of this Court and only such persons as can satisfy a very high standard of integrity of character can be enrolled as such. An Advocate who is found to have fallen from that standard and is debarred by the High Court cannot be considered fit to practise in this Court. Proceedings under r. 30, 0. IV Of the Supreme Court Rules should be treated as a natural sequel to proceedings in the High Court under the Bar Councils Act and although an order made by the High Court under that Act is not to be automatically followed by this Court, it is not necessary that this Court should start a fresh inquiry on evidence. It would be enough for it to generally examine the record prepared by the Bar Council Tribunal and take into account the findings of the High Court based on such report. Reasonable opportunity must, however, be afforded to the Advocate of being heard against the action proposed to be taken against him and adducing such additional evidence as this Court may think proper. The Attorney General or any other Advocate representing the Legal Profession generally or the complainant or the aggrieved party may also be heard before the final decision is arrived at. In the matter of an Advocate, Case No. XVI of 1942, decided on March 23, 1943, In Ye: D. A. Shammugasundaraswami, an Advocate Misc. Case No. X of 1948, decided on January 24, 1949, In the matter of Mr. 'G ', a Senior Advocate of the Supreme Court, and In the matter of 'D ', an Advocate of the Supreme Court; , , referred to.

The appellant filed a suit for evicting his tenant Bhagwandas Kanu etc. after giving them a notice to quit. The Trial Court dismissed the suit but on appeal, the First Appellate Court passed a decree for eviction against the respondents. In second appeal before the High Court, the respondents assailed the validity of the notice to quit, on the ground that it did not conform with the requirements of section 106 of the Transfer of Property Act. The High Court allowed the appeal holding that the notice to quit did not clearly terminate the tenancy on the expiration of the, month of the tenancy, and was invalid. Allowing the appeal by special leave, the Court, HELD: A notice to quit must be construed ut res magis valeat quam pereat. It must not be read in a hyper critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it should be construed in a common sense, way. The notice to qui re quired the respondents to vacate "within the month of Octo ber 1962", otherwise they would be treated as trespassers from 1st November, 1962. This makes the intention of the authors of the notice clear that they were terminating the tenancy only with effect from the end of the month of October 1962 and not with effect from any earlier point of time during the currency of that month. Sidebotham vs Holland ; Harihar Banerji vs Ramsashi Roy 45 I.A. 222, applied.

399 of 1952. Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus, Godavari Parutekar, the petitioner, in person. M. C. Setalvad, Attorney General for India, (G.N. Joshi and P. A. Mehta, with him) for the respondent. December 5. The Judgment of the Court was delivered by BosE J. This is a habeas corpus petition under article 32 of the Constitution. The petitioner was detained the, 16th of October, 1951, under the of 1950 as amended in 1951. Her detention was actually longer than this but the earlier detentions were under a different set of orders which are not relevant to the present matter. The present detention is based an order of the District Magistrate, Thana, and merely says that the petitioner be detained, without specifying any period. The order of confirmation was passed the 4th of January, 1952, and there again no period was specified. The petitioner 's case is that as no period was specified in the order her period of detention expired the 31st of March, 1952, because of the amending Act of 1951 ; or at the outside the 30th of September, 1952, because of Act XXXIV of 1952 which effected a further amendment. The reply behalf of the State of Bombay is that the of 1950 was again amended by Act LXI of 1952 and that the effect of this amendment was to carry the petitioner 's detention to the 31st of March, 1953, because of section 11 A which was added to the original Act of 1950. The petitioner counters by saying that the new Act does not apply to cases in which the order of detention is not silent about its duration and so section 11 A does not serve to extend the period of her detention. She relies the following portion of section II A (2) ". every detention order which has been confirmed under section 11 before the commencement of the Preventive Detention (Second Amendment) Act 1952, shall, unless a shorter priod is specified in the order, continue to remain in force until the Ist day of April, 1953. " The petitioner concedes that no shorter period is specified in her order of detention but contends that as her detention would have expired either the 31st of March, 1952, or the 30th of September, 1952, one of those two dates must now be read into the order and when that is done we have an order which specifies as shorter period, therefore section 11 A (2) does not serve to extend her detention. We are unable to accept this contention. The section is clear and unless a shorter period is specified in the order, section I 1 A(2) applies. We cannot add the words "or must be deemed to have been specified by reason of the expiry of the earlier Act" into the section. We hold therefore that section 11 A(2) validly extended the period of detention till the Ist of April, 1953. 1 The petitioner 's next point is based articles 14 and 22(i)(b) of the Constitution. ' It arises in this way. Section 3 (1) (a) of the of 1950 classifies grounds of permissible detention into three categories. Article 22 (7) (b) empowers Parliament to prescribe the maximum period for which any person may "in any class or classes of cases" be detained. The petitioner argues that this permits only one maximum for each class and that if different maxima are provided for "equals" within a class it offends not only article 22 (7) (b) but also article 14 as interpreted by the decisions of this Court, She next argues that section 11 A, now introduced by the second amending Act of 1952 (Act LXI of 1952), does just that and so is ultra vires. Her point is put as follows. Sub section (1) of section 11 A states that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 1 1 shall be twelve months from the date of detention. But sub section (2) qualifies this by dividing detentions into two classes; 213 (a) those in which the detention order was confirmed before 30th of September, 1952, and (b) those in which the confirmation was after that date, and it provides that. in the former case, unless a shorter period is specified in the order, the detention shall continue either till the 1st of April, 1953, or for twelve months from the date of detention, whichever expires later. This, she says, introduces a fresh classification which divides detentions into those before the Act and those after. That, she says, is ultra vires, first, because it introduces a discriminatory classification in the class to which she belongs under section 3 of the Act and, second, because it entails discrimination even in the fresh class into which she has been thrown by the new sub division, made by the second amending Act of 1952. As regards the first point, the ratio decidendi in Shamrao V. Parulekar vs The District Magistrate, Thana, and Others(1) applies here. In that case, detentions were divided into those which had already been considered by an Advisory Board and those which had not. This was upheld. The dividing line here is different, namely a certain date, but the principle is the same and its reasonableness is apparent from a consideration of the various amendments which have been made from time to time. The life of the Act of 1950, which was the principal Act, was extended till the 1st of October, 1952, by section 2 of the amending Act (Act XXXIV of 1952), and the effect of section 3 was to prolong the ' life of all detentions in force on 14th of March 1952, (provided they had been confirmed before that date) for so long as the principal Act was in force. At that date this meant till the 1st of October, 1952. But the second amending Act of 1952 extended the life of the principal Act till the 31st of December,1954. Therefore, in the absence of section 11 A all those detentions would have been extended till that date. But section 11 A modified that and put 1st of April,1953, as the latest date for these old detentions, (1) ; at 691 and 693. 214 It therefore conferred a benefit and cannot be deemed unreasonable. Sub section (3) of 'section 11 A shows that that was the object. But the petitioner attacked the provisions on the ground of discrimination. She said that even assuming the new classification of detentions into those before and after the 30th of September, 1952, to be good, section 11 A is nevertheless discriminatory because it discriminates amongst those in her class,, namely those whose detentions were made and confirmed before the 30th of September. She put it in this way. Taking the case of her own detention, she pointed, out that if section II A is good, it will continue till the 1st of April, 1953, that is to say, her detention will have been for a period of 17 1/2 months from the 16th of October, 1951, till the 1st of April, 1953. 'On the other hand, a person detained after her on, say, the last of September, 1952, would also be due for release on the 1st of April, 1953, and so would have had only six months ' detention. This, in our opinion, is not discrimination within the meaning of article 14. A maximum can be fixed, either by specifying a particular period, such as twelve months, or by setting an outside limit, land it is inevitable in such a case that the length of detention will vary in each individual case. Those taken into detention at a later date are bound to be detained for a shorter time. Government is not bound to detain everybody for the same length of time. , It has a discretion. Moreover, the appropriate Government has boon left power to revoke or modify the detention order at any earlier time. This point was considered in Shamrao V. Parulekar vs The District Magistrate, Thana, & Others (1) and was decided against the detenu. The petitioner endeavoured to have her application reopened on the merits contending again that the grounds of detention are vague. She relies on Shamrao V. Parulekar vs The State, of Bombay (2) where (1) ; at 691 at 693. (2) Petition No. 86 of 1952. 215 another detenu was released by another Bench of this Court in circumstances which., according to her, are very similar. We are unable to allow this as her petition has already been rejected on the merits. She was only allowed to appear on constitutional points. We understand that in the other petition this fact was not brought to the notice of the Court. The application is dismissed. Application dismissed.

Section 11 A which was inserted in the of 1950 by the Preventive Detention (Second Amendment) Act, 1952, provided that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 11 shall be twelve months from the date of detention. But subs. (2) qualified this by dividing do tentions into two classes: (a) those in which the detention order was confirmed before the 30th September, 1952, and (b) those in which the confirmation was after that date, and it provided that in the former case, unless a shorter period was specified in the order, the detention shall continue either till the 1st of April, 1953, or for twelve months from the date of detention, whichever expires later: I Held, (i) that the section did not contravene article 14 or article 22 (7) (b) of the Constitution merely because it introduced a fresh classification which divided detentions into those before the Act and those thereafter, as the classification was a reasonable one. The section did not involve any discrimination between persons whose detentions were confirmed before the 30th September, 1952, Merely because, as a result o f the section, in the case of some persons the period of detention may be longer and in the case of others it may be shorter; Shamrao Parulekar vs The District Magistrate, Thana and Others ( ; followed. (ii)that a detention order made the 16th October, 1951, which did not specify any period of detention was not a case where " a shorter period was specified in the order " within the meaning of section 11 A (2) merely because the detention would have expired either ' the 31st March, 1952, or 30th September, 1952, but for the Amendment Act.

The appellants, upon conviction under the relevant sections of the Indian Penal Code, Explosive Substances Act and Arms Act, were sentenced to various terms of imprison ment. The total sentence of imprisonment to be undergone for some of the appellants was two years while in the case of other appellants it was one year. The High Court dis missed the appeal in view of the appellants ' entitlement to set off the period of their pre trial detention against the entire sentence of imprisonment imposed upon them after observing that it was not necessary to go into the matter as it would be only of an academic interest. Accepting the appeal by Special Leave and remanding the cases to the High Court for disposing of on merits, the Court, HELD: (1 ) The High Court was in error in so far as it declined to go into the validity of the conviction of the appellants. [600 F] (2) The object of a challenge to conviction is to avoid certain consequences flowing from conviction and also to erase the stigma resulting from the conviction. The fact that the convicted person has already Undergone the sentence or is otherwise entitled to be set at liberty because of the length of the period during which he has been under deten tion during the course of investigation, enquiry and trial cannot prevent the accused from challenging his conviction in appeal. [600 C F]

An application for leave to appeal to the High Court under section 417(3) Code of Criminal Procedure against an order of acquittal by a Magistrate dated August 31, 1965 was filed on November 1, 1965. It was claimed that two days were necessary for obtaining the certified copy of the order of the Magistrate. The application would be in time if these two days were deducted. The High Court accepted the appeal and convicted the appellant. In appeal to this Court against his conviction the appellant contended that the period of 60 days mentioned in section 417(4) was not a period of limitation within the meaning of section 12 of the Limitation Act and that the sub section barred the jurisdiction of the High Court to deal with the application if a period of 60 days had expired from the date of the order of acquittal. HELD : The application under section 417(3) to the High Court was within time. Section 417(4) itself prescribes a period of limitation; it was open to the legislature to prescribe a period of limitation in the code itself. In the context of section 417(4) the word "entertain" means "file or receive by the court" and it has no reference to the actual hearing of the application for leave to appeal; otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put up for hearing before the High Court within sixty days of the order of acquittal. [901 D F] Kaushalya Rani vs Gopal Singh, , 987, Anjanabai vs Yeshwantrao Daplatrao Dudhe, I.L.R. (1961) Bom. 135, 137 and Lakshmi Rattan Engineering Works vs Asstt. Commissioner Sales Tax; , , referred to.

The petitioner was detained under an order dated March 2, 1971 passed by the District Magistrate, 24 Pargana, West Bengal, under sub section (i) read with sub section (3) of section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970. The order stated 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 pre judicial to the security of the State or the maintenance of public order as provided in section 3(1). In the grounds of detention supplied to the petitioner three incidents of violence at railway stations in which the petitioner was alleged to have participated and used explosives were men tioned. In his representations against being detained the petitioner did not allege any mala fides against the administration but only denied that he took part in the violent activities. In 'support of the writ petition under article 32 of the Constitution challenging the order of its detention it was urged that while the impugned order mentioned his activities as being prejudicial to public order as well as security of the State, the instances given in the grounds of detention only mentioned activities pre judicial to public order. The detaining authority had thus taken into account extraneous and irrelevant matters in passing the order of detention. ' According to the appellant it is only matters referred to in sub c. (i) of c1. (a) of section 3(2) of the Act which will relate to the activities adversely affecting the security of the State, and none of these matters had been mentioned in the grounds of detention furnished to the petitioner. HELD : The contention of the petitioner that it is only sub cl. (1) of cl. (a) of section 3(2) which deals with matters adversely affecting the security of the State could not be accepted. In fact that very sub clause refers to the matters herein as affectingthe security of the State or the maintenance of public order. Thereforein this case the grounds of detention could not be held to be vague norcould the order of detention be held to be invalid on the ground thatthe petitioner must have been detained only to prevent him from actingin 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. Further the said grounds clearly bring the activities of the petitioner under section 3 of the . [523 H 524 E] Accordingly the detention of the petitioner must be held to be valid and the petition under article 32 must be dismissed.

The respondents in the civil appeals and the petitioner in the writ petition were landlords in Goa, whose lands were in the possession of the cultivating tenants. Prior to the enactment of the Goa, Daman and Diu Agricultural Tenancy (5th Amendment) Act, 1976 the nature of the rights of the landlords and tenants were governed by the Goa. Daman and Diu Agricultural Tenancy Act, 1964. By Chapter III of the 1964 Act the landlord was permitted to resume his land for bona fide personal cultivation, subject to a ceiling. Chap ter III, however, was to come into force only on a notifica tion for the purpose, which was never issued. The impugned 5th Amendment omitted Chapter III from the 1964 Act and in its place included Chapter IIA. By the provisions of section 18A of Chapter IIA the land belonging to a landlord not in his cultivating possession on the tiller 's day got trans ferred to the tenant in possession for a price to be paid to the landlord. The respondents filed writ applications in the Court of the Judicial Commissioner challenging the validity of the 5th Amendment Act. The writ petitions were allowed by the Judicial Commissioner who held that the Amendment Act vio lated Articles 14 and 19 of the Constitution and that the protection of Article 31A was not available as the scheme of the Amendment Act did not constitute agrarian reform. 498 During the pendency of the present appeals the impugned Amendment Act along with the main Act were included in the 9th Schedule of the Constitution. The writ petition filed in this Court under Article 32 has challenged this constitu tional amendment as illegal and ultra vires. Before this Court it was contended on behalf of the respondentslandlords that fixation of ceiling was the heart and soul of agrarian reform; that provisions regarding ceiling were essential for a statute enacted as a measure of agrarian reform and in their absence the same could not claim protection of Article 31A of the Constitution; that in the absence of provisions for ceiling the impugned Amendment Act had bestowed undeserved benefit on the tenants at the cost of the landlords, without reference to the respective areas in their possession. In this connection it was submit ted that in many a case, a cultivating tenant in possession of lands under different landlords might be having far larger area of land than his landlords and there could not be any preference to clothing such a tenant with title to the land at the cost of his comparatively poor landlords. Allowing the appeals and dismissing the writ petition this Court, HELD: (1) It is well settled that the protection of Article 31A is limited to the laws which serve the purpose of agrarian reform. [504D] (2) It cannot be denied that the appropriately enacted statutes having provisions for fixing ceiling of holdings do fall in the category of legislation for agrarian reform, but that proposition does not say and cannot be interpreted as holding that fixing ceiling areas is a basis and essential feature of agrarian reform without which a law cannot be included in the category. A proper statute even without including provisions regarding ceiling may be entitled to the protection of Article 31A provided it is otherwise a measure of agrarian reform. [505C, F] Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 SCR 489; Godavari Sugar Mills Ltd. vs S.B. Kamble & Ors., ; and Balmadies Plantations Ltd. & Ant. vs State of Tamil Nadu; , , referred to. (3) The title to the land shall vest in the tiller and the landlord shall get the compensation. Earlier also his right to resume the land for personal cultivation was con siderably restricted by the provisions of the 1964 Act. As a result of the impugned 5th Amendment Act he has been 499 divested of this limited right for a price, and the tiller shall no more be under a threat of dispossession. The im pugned provisions must therefore be accepted as a measure of land reform. [509G H; 510A] (4) The argument of the respondents that in absence of provisions fixing ceiling on the area of land which can be held by a person a statute cannot be accepted as a measure of land reform is, accordingly, rejected. The 5th Amendment Act is. therefore, entitled to the protection of Article 31A and it cannot be struck down on the ground of violation of Articles 14 and 19 of the Constitution. [510A B] Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 SCR 489; Sonapur Tea Co. Ltd. vs Must. Mazirunnes sa; , ; Purushothaman Nambudiri vs The State of Kerala, [1962] Supp. 1 SCR 753; Fida Ali & Ors. vs State of Jammu & Kashmir, ; ; Dattatraya Govind Mahajan vs State of Maharashtra, ; ; K.K. Kochuni vs The State of Madras, and Sanjeev Coke Manufacturing Company vs Bharat Coking Coal Ltd. & Anr., ; , distinguished.

The petitioners are carrying on business on a very large scale of making and selling bidis having their head office in Jabalpur in the State of Madhya Pradesh and are registered as "dealer" for the purposes of the Central Provinces and Berar Sales Tax Act, 1947. In the course of their said business, the petitioners import tobacco from the State of Bombay in very large quantities after it is blended in that State by the vendors with various other types of indigenous tobacco by an elaborate process. This finished tobacco, after its import within the State of Madhya Pradesh is rolled into bidis which are exported to various other States, largely to the State of Uttar Pradesh. The dealers in the State of Uttar Pradesh and such other States who buy bidis from the petitioners sell the same to various other dealers and consumers in those States. The Sales Tax authorities in the State of Madhya Pradesh required the petitioners under threat of criminal prosecution to file a statement of return of the total purchases of tobacco made by them out of Madhya Pradesh and delivered to them in Madhya Pradesh with a view to assess and levy purchase tax on the transactions of purchases made by the petitioners as stated above. Held, that the State of Madhya Pradesh had no authority to impose or to authorise the imposition of such a tax and that the action of the State authorities contravened the provisions of article 286(2) of the Constitution inasmuch as the transactions in question were in the course of inter State trade or commerce as the finished tobacco which was supplied to the petitioners moved from the State of Bombay to the State of Madhya Pradesh. 510 The contention that not only the petitioners were the registered dealers under Rule 8 of the Central Provinces and Berar Sales Tax Rules, 1947 but the dealers in Bombay who sell or supply tobacco to them were registered as "dealers" for the purpose of the Central Provinces and Berar Sales Tax Act, 1947 and therefore the transactions were between two registered dealers in the State of Madhya Pradesh and thus constituted purely internal sales of the goods was without force because what one has to look at is the real nature of the transactions and not the outside form and as the trans actions in dispute involved movement of the goods across the border they were clearly transactions of sales of goods in the course of interState trade or commerce and were hit by the ban under article 286(2) of the Constitution.

On the application for pre mature release, made by the respondent, who was undergoing sentence of life imprisonment and had served a period of eleven and a half years the High Court directed that the respondent 's mercy petition pending before the Governor, should be decided within three months. Since this was not done, the High Court directed his release on bail, observing that if his mercy petition was dismissed he would have to surrender. Against this decision the State filed an appeal before this Court. Allowing the appeal, this Court, HELD: The High Court has not taken into consideration the provisions of Section 433A of the Criminal Procedure Code, 1973 while passing the order for the respondent 's release on bail. The judicial proceeding dealing with the conviction and sentence of the accused had been earlier concluded, and the order was passed while finally disposing of the writ petition alleging delay in disposal of the mercy petition. Thus, no case is now pending before the court. The order for the respondent 's release on bail has not therefore, been passed as an interim measure pending the decision of a case before the Court. In such a situation the provisions of Section 433A are attracted. The words "such person shall not be released from prison" are wide in their application and cannot be restricted only to case where the person has been released finally. The judgment in question is set aside and the case remitted to the High Court for reconsideration of writ petition confined to its limited scope.

The appellants were the judgment debtors while the respondent bank was the decree holder. In execution of the decree a warrant for arrest and detention in civil prison was issued to the appellants under section 51 and order 21, rule 37 of the Code of Civil Procedure. On an earlier occasion there had been a similar warrant for arrest in execution of the same decree. The decree holders also proceeded against the properties of the judgment debtors and in consequence all their immovable properties had been attached for the purpose of sale in discharge of the decree debts. A receiver was appointed by the execution court to manage the properties under attachment. Even so, the court had issued a warrant for the arrest of the judgment debtors because on an earlier occasion a similar warrant had already been issued without any investigation as regards the current ability of the judgment debtors to clear off the debts or their mala fide refusal, if any, to discharge the debts. On the question whether under such circumstances personal freedom of the judgment debtors can be held to ransom until repayment of the debt. Allowing the appeal, ^ HELD: 1. The words in section 51 which hurt are "or has had since the date of the decree the means to pay the amount of the decree. " Superficially read this implies that if at any time after the passing of an old decree the judgment debtor had come by some resources and had not discharged the decree he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position, apart from being inhuman going by the standards of Article 11 of the International Covenant on Civil and Political Rights and Article 21. A simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or alternatively current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Considerations of the debtor 's other pressing needs and straitened circumstances will play prominently. [922E G] 2. Unless there be some other vice or mens rea apart from failure to foot the decree, international law frowns on holding the debtor 's person in civil prison, as hostage by the court. India is now a signatory to this Covenant and Article 51(c) of the Constitution obligates the State to "foster respect for 914 international law and treaty obligations in the dealings of organised peoples with one another". Even so, until the Municipal Law is changed to accommodate the Covenant what binds the courts is the former not the latter. [918A B] 3. Quondom affluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with Article 11 of the Covenant because then no detention is permissible under section 51 of the Code of Civil Procedure. [921G] 4. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Articles 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. To cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor is no crime and to "recover" debts by the procedure of putting one in prison is flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant. But this is precisely the interpretation put on the proviso to section 51 C.P.C. and the lethal blow of Article 21 cannot strike down the provision as interpreted. [922A D]

200 of 1955. 439 Petition under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. section K. Kapoor and Ganpat Rai, for the petitioner. G. C. Kasliwal and D. Gupta, for the respondents. St 1961. March 17. , J. Section 4 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (which will be hereafter referred to as the Rajasthan Act), enacts: "4. All lands liable to pay land revenue. Not withstanding anything contained in any existing jagir law or any other law, all jagir lands shall, as from the commencement of this Act, be liable to payment of land revenue to the Government; and as from such commencement, the liability of (a) all Jagirdars to pay tribute to the Government under any existing Jagir Law shall cease, and The expression 'tribute ', the liability to pay which was thus extinguished from and after the commencement of the Act, was defined in section 2(r) of that Act in the following terms: 'Tribute ' in relation to a jagir, includes rekh, rakam, chatund, chakri or other charge of a similar nature; and" In the absence of the above provision the petitioner would have been under an obligation to pay to the Government 'hukamnama ' under section 190 of the Marwar Land Revenue Act, 1949 (referred to hereafter as the Marwar Act) which codified the earlier law irk that State. The short question that is raised by this petition under article 32 of the Constitution is whether the liability of the petitioner to pay 'hukamnama, the nature of which we shall explain later, has been extinguished by the provision of the Rajasthan Act above extracted which, as would be seen, turns on whether such a payment could be comprehended within the expression 'tribute '. Relying on section 4(a) of the Rajasthan Act, the petitioner resists the demand of he same made by the respondent State and impugns the legality of the claim. 440 It is necessary to set out a few facts and certain provisions of the Marwar Act to appreciate the matter in controversy. Thakur Nathu Singh, the Jagirdar of Ras a "Scheduled Jagir" under the Marwar Act died in July 1946 leaving the petitioner, Thakur Bahadur Singh as his next heir. "Scheduled Jagirs" are, under the Marwar Act, impartable and their line of devolution was prescribed by section 182 thereof which ran: "Succession shall be governed in the case of Scheduled Jagirs by the rule of primogeniture. " The succession, " however, was not automatic but had to be recognised by the Government and a renewal granted in favour of the successor before his title to the jagir was perfected. Sections 183 185 of the Marwar Act which are of relevance in this connection, ran: "section 183. All grants of Scheduled Jagirs are only for the life time of the holder, and no person is entitled to succeed to such jagir until his succession is recognized and the grant is renewed in his favour by His Highness. section 184. Subject always to His Highness pleasure, the grant of a Scheduled Jagir, on the death of the holder, shall be renewed in favour of the person entitled to succeed him in accordance with the provisions of this Act. section 185(1). A Scheduled Jagir, on the death of the holder, and until the renewal of the grant in favour of his successor, shall be resumed by the Government and taken under direct management. Provided that the claimant to succession shall, in the, absence of special orders of His Highness be permitted to retain possession pending orders of His Highness regarding the claim, if he is a direct lineal descendant in the male line of the last holder. (2). . . . (3). . . . (4). . . . The title of the petitioner to succeed to the jagir as the next heir of his father was recognised and a renewal granted in his favour by the Government by an 441 order dated March 18, 1952. Section 190 of the Marwar Act imposes an obligation on a succeeding heir whose title has been recognised and to whom a renewal of the jagir has been granted, to make certain payments. This section runs: "section 190(1). When succession to a Scheduled Jagir is recognised by His Highness and renewal of the grant ordered, the person in whose favour the grant is ordered to be renewed shall execute within one month of the communication to him of the orders, a 'Kabuliyat ' for payment of Hukamnama and other fees payable in accordance with sub sections (2) and (3). (2). . . . . . (3). . . . . . The amount payable by the petitioner, according to the scale of fees prescribed under the Act, came to Rs. 30,000 and the respondent State demanded this sum. Before, however, the date of the order according recognition and granting renewal in favour of the petitioner, the Rajasthan Act of 1952 had been passed and having received the assent of the President on February 13, 1952, came into force on publication in the Gazette on February 16, 1952, and under section 4 of this Act, whose terms have been set out already, the liability on the part of Jagirdars to pay "all tribute" to Government got extinguished. The question debated in this petition is whether the liability to pay 'hukamnama ' or other fees under section 190 of the Marwar Act is a 'tribute ' from the payment of which the Jagirdars are thus relieved. It is common ground, subject to a submission of the learned Advocate General for the respondent State, which we shall refer to a little later, that if the 'hukamnama ' which the petitioner has been required to pay to the Government was a 'tribute ' within section 4 of the Rajasthan Act, it would cease to be exigible and cannot be enforced from and after February 16, 1952, because it is not in dispute that the petitioner is a Jagirdar and 'hukamnama ' regarding which the demand has been made on him "is a demand which 56 442 is due under an existing Jagir law", viz., the Marwar Act. The precise question which now arises for our decision came up before the High Court of Rajasthan in 1955 on facts exactly parallel with the case before us and a Bench of that Court held in a case reported as Thakur Narpat Singh vs The State of Rajasthan (1) that 'hukamnama ' and the fees payable under section 190 of the Marwar Act were not within,%. 4(a) of the Rajasthan Act. Consequently, the arguments on either side before us took the form of either supporting the reasoning contained in that judgment or in disputing its correctness. It therefore becomes necessary for us to examine the reasoning upon which the learned Judges of the Rajasthan High Court reached a conclusion adverse to the contention of the petitioner now before us. Before doing so, however, it is necessary to advert to a point sought to be raised by the learned Advocate General for Rajasthan for the respondent which would cut across all this debate. He sought to urge that section 4 of the Rajasthan Act was not retrospective and that as the recognition of the title of the Petitioner and the renewal of the grant of the jagir in his favour related back to July 1946 when the succession opened, the Rajasthan Act could not be invoked to put an end to the obligation which had accrued years before it came into force notwithstanding that the orders of recognition and renewal were passed only in March 1952. In the circumstances of this case, however, and also regard being had to the point not having been raised in the answer filed by the State to the writ petition, we did not consider it proper to permit the Advocate General to pursue the submission. We will now proceed to consider the correctness or otherwise of the conclusion reached by the learned Judges of the Rajasthan High Court in the case just now referred to. Stated briefly, the ratio of their decision was as follows: Under the law governing jagir grants and the tenure on which they are held in Marwar, a 'hukamnama ' is a levy chargeable for recognition of the succession of a person to a Scheduled Jagir (1) I.L.R. 443 of his deceased ancestor. The specific dues, Rekh and Chakri enumerated in the definition of section 2(r) of the Rajasthan Act are those levied in Marwar, the former being 8 per cent of the gross rental value of an estate and the second the cash equivalent of the obligation to supply horsemen or camelsowars or foot soldier, , by Jagirdars dependent upon the value of the estate. Similar payments are known as 'Rakam ' in the State of Bikaner and 'Chatund ' in the State of Udaipur, these States being the components of the State of Rajasthan. All these dues, Rekh, Rakam, Chatund and Chakri were annual and recurring payments made by Jagirdars. When therefore the definition in section 2(r) concluded with the words other charges of a similar nature ', it must necessarily be held that these general words should be confined to charges which were also recurring. The 'hukamnama ' and other dues payable under section 190 of the Marwar Act, however, were not recurring payments and were in consideration of the ruler exercising his discretion to recognise a succession and grant renewal of the jagir in favour of the next heir. In other words, these were payments due to the ruler in recognition of his sovereign right to the ownership of the land which was statutorily embodied in sections 169 170 of the Marwar Act which ran: "section 169. The ownership of all land vests in His Highness and all jagirs, bhoms, sansans, dolis or similar proprietary interests are held and shall be deemed to be held as grant, from His Highness. and section 170. All grants shall be held by the original grantee or his successors during His Highness ' pleasure. " The payments under section 190 of the Act therefore were not of the same category as the payments enumerated in section 2 (r) of the Rajasthan Act and hence could not be comprehended within the meaning of the expression 'tribute '. The same matter was also put in a slightly different form by saying that whereas the payments enumerated in the definition of 'tribute ' were those made by Jagirdars as such, i.e., after they got into possession, a 'hukamnama ' was a payment made not by a 144 Jagirdar but by a person who was merely a claimant to a jagir and as a condition of his title to it being recognised. The correctness of this reasoning was challenged before us by learned Counsel for the petitioner who urged that the learned Judges of the High Court did not accord sufficient consideration to the fact that the definition in section 2(r) was an 'inclusive ' definition and could, therefore, include others not falling within the enumerated types. In this connection, learned Counsel relied upon the meaning of the word 'tribute ' in Webster 's New International Dictionary and in the Oxford English Dictionary, Volume IT. In the former, one of the meanings given is: "A tax, impost, duty, rental, or the like, paid by a subject vassal to his sovereign or lord". and in the latter: "A tax or impost paid by one prince or state to another in acknowledgement of submission or as the price of peace, security and protection". He therefore urged that the expression 'tribute ' in section 2(r) would include those which fell within the ordinary dictionary meaning of the term , in addition to those specifically enumerated therein. If the word were understood in its ordinary dictionary meaning without any statutory definition, learned Counsel added, the incidence of recurrence would not be a necessary attribute of the concept of a 'tribute '. The submission was that the learned Judges of the Rajasthan High court erred in confining the meaning of 'tribute ' to the enumerated payments and "other charges of a similar nature", without taking into account the fact that this was an inclusive and not an exhaustive or even an illustrative definition. We see force in these submissions and it must also be said that the argument in this form and the construction of section 2(r) from this aspect has not been considered by the learned Judges of the Rajasthan High Court. We have, therefore, to examine whether the submission can be sustained. Our task is, to discover whether the expression 'tribute ', as it occurs in the Rajasthan Act, includes payments of the type now in 445 controversy. Apart from the usual express saving contained in the opening words of section 2 that the definitions set out are to be applied "unless the context otherwise requires", the meaning of the word 'tribute ' has to be ascertained from a consideration of the various provisions of the Act and not merely from section 4(a) of the Act read in the light of the definition. It would be seen that in ultimate analysis the question of construction posed for our decision may be thus set out: The four specific enumerated dues in the definition in section 2(r) are recurring annual payments. "Other charges of a like nature" which follows this enumeration, would obviously partake of that character and they would also have to be similarly annual. and recurring. This was the basis of the decision of the learned Judges of the Rajasthan High Court and the correctness of this view up to this point cannot be and has not, been disputed. The definition, however, being "inclusive" and not "meaning" these, it is said it must "include" something else. It must, however, be added that the possibility cannot be ignored that the definition was made inclusive out of caution and with a view not to exclude any payment which jagirdars were making or were under an obligation to make, to Government, seeing that the Act was to apply to an integrated State composed of several States in which there might have been great diversity of nomenclature in designating these payments, and so as not to exclude any payment which would squarely fall within the category regarding which provision was made in the operative portion of the enactment. Learned Counsel for the petitioner urges that every payment by a Jagirdar to the Government, whatever be the nature of the payment and whatever be the consideration therefore, is included in the expression. If the expression 'tribute ' occurred only in section 4(a) in the operative provisions of the Act, there might be much to be said for the view presented by learned Counsel for the petitioner and for invoking its dictionary meaning to ascertain the content of that word. The Act, however, has used the word 'tribute ' in several other sections and in different contexts and we 446 consider that the precise ambit of this expression of rather indefinite import as contemplated or intended by the framers of this Act has necessarily to be gathered from the entirety of the provisions. The ,word tribute ' was apparently no equivalent in the local languages, so that it was obviously used as a convenient and compendious expression to designate certain imposts which were levied by the rulers of the several States which integrated to form the State of Rajasthan. Further, this circumstance should obviously induce some caution before the dictionary meaning of the English word tribute ' is treated as expressing the intention of the framers of the Rajasthan Act. We shall therefore proceed to set out and consider the other provisions of the enactment in which the word is used to discover the intentions of the framers of the Act as to what they meant by it. Before proceeding further, we should add, that as under section 4(a) of the Rajasthan Act, the payment of Land Revenue computed under it is to be the substitute for the 'tribute ' previously demandable or paid, the manner in which the land revenue under the Act is determined would be relevant as throwing light on for what it is substituted. We have already set out the terms of section 4 of the Rajasthan Act under which in substitution of the payment of 'tribute ' all lands are made liable to the payment of land revenue. The amount of land revenue payable by a Jagirdar is fixed by section 8 and this is based in part on the annual rental income which could be derived from the jagir computed in the manner set out in sections 6 and 7. For our present purpose section 8 is of importance, because the amount of 'tribute ' payable forms one of the factors for determining the amount of 'land revenue payable '. Section 8 enacts: "section 8. Amount of land revenue payable. The land revenue payable by a Jagirdar in respect of his jagir lands shall be (a) for the agricultural year 1951 52, an amount equal to the amount of tribute payable by him to the Government for that year; (b) for the agricultural year 1952 53 and each of the six succeeding agricultural years 447 (i) in the case of jagir lands the annual rental income of which as determined under section 6 or section 7, exceeds five hundred rupees but does not exceed five thousand rupees, one sixteenth of such rental income or the amount of the tribute which was payable by the Jagirdar for the agricultural year 195051, whichever is greater; (ii) in the case of jagir lands the rental income of which as determined under section 6 or section 7 exceeds five thousand rupees, one eighth of such annual rental income or the amount of the tribute which was payable by the Jagirdar for the agricultural year 1950 51, whichever is greater. Explanation. For the purpose of this clause the amount of tribute payable by a Jagirdar to the Government for the agricultural year 1950 51 shall be deemed to be the amount of such tribute less the amount of any tribute payable to such jagirdar by any person to whom the Jagirdar may have granted any of his jagir lands; (c) for the agricultural year 1959 60 and subsequent years, one fourth of the rental income from the jagir lands as determined under sections 6 and 7; Provided that (i) where no tribute was payable by the Jagirdar before the commencement of the Act or where the whole of the tribute has been paid before such commencement, the jagir lands shall be deemed to be exempt from the payment of land revenue for the agricultural year 1951 52; (ii) where the jagirdar has paid a part of the tribute before the commencement of this Acts, the land revenue payable by him for the agricultural year 1951 52 shall be an amount equal 'to the balance of the tribute which would have been payable by him for that year if this Act had not been passed; and (iii) the Government may direct that for the purposes of clauses (b) and (e) of this section, the rental income of any jagir land for all or any of the agricultural year mentioned in those clauses shall be 448 determined or redetermined on the basis of the rental income which actually accrued to the jagirdar from the jagir in such year or years, as the case may be." It will be seen that this section speaks of tribute payable for the, year specified 1951 52 or 1950 51and it is obvious that the tribute here referred to could only be the recurring payments like those enumerated in the definition in section 2(r) to which could be attributed the character of being a payment for a specific year. Besides, it will be, seen that under section 8(b) the land revenue payable for the seven agricultural years 1952 53 to 1959 60 is to be either a fraction of the annual rental income or "the amount of the tribute which would be payable by the Jagirdar for the year 1950 51 whichever is greater". Surely it would be most unreasonable to hold that if during the year 1950 51 a Jagirdar made a payment of 'hukamnama ' this ad hoe payment should be treated as part of the tribute for that year and the Jagirdar made liable to pay sums including 'hukamnama ' for the seven years 1952 53 to 1959 60. The main object of the Rajasthan Act was to effect resumption of jagir lands by eliminating intermediaries and the 'tribute ' payable by the erstwhile Jagirdars enters into the calculation for computing the compensation payable to them on such resumption. The second schedule to the Act sets out the principles governing the compensation payable to Jagirdars. It may broadly be stated that the compensation payable, to Jagirdars is determined on the basis of a multiple of the net income of the basic year as determined under r. 1 of the second schedule. The net income is computed by first determining the gross income of the Jagirdars under various heads including the rental income and deducting therefrom certain outgoing which included the "tribute ' Rule 4 of schedule 2 provides: "4. Net income. The net income of a Jagirdar for the basic year shall be calculated by deducting from his gross income therefore, (i) the amount that the Jagirdar would have 449 been liable to pay to the Government as tribute, and, in the case of grantee from a Jagirdar, to the Jagirdar in respect of such grant, for the basic year if this Act had not been passed; (ii) any sums of recurring nature due to the Government from the Jagirdar, or in the case of grantee from the Jagirdar to the Jagirdar, for the basic year on any account other than land revenue,; and . . . . . . It is impossible to conceive that the framers of the Act would have intended that the payment of a 'hukamnama ' in the basic year should have a permanent effect on the quantum of compensation payable to a Jagirdar under the provisions above extracted. In addition to the compensation for the presumption of the jagir under the provisions of the Rajasthan Act, the Jagirdars are entitled to be paid a rehabilitation grant under Chapter VIII A of the Act. The method of calculation of this amount is set out in Schedule III of the Act and for this purpose Jagirdars are classified on a graduated scale into various categories depending on the gross income from the estate. This is followed by a proviso in these terms: "Provided that for the purpose of calculating the rehabilitation grant payable to a Jagirdar falling in this category such marginal adjustments shall be made as will ensure that a Jagirdar having a higher net income does not get an amount by way of rehabilitation grant which is less than that payable to a Jagirdar having a lower net income. Provided further that, in comparing Jagirdars with different amounts of income for the purpose of the first proviso to this sub clause, (i) Jagirdars who were riot paying tribute shall be compared only with Jagirdars who were not paying tribute, (ii) Jagirdars who were paying tribute shall be compared only with Jagirdars who were paying ' tribute, (iii) Jagirdars who were paying any sums of 57 450 recurring nature referred to in sub clause (ii) of clause 4 of the Second Schedule shall be compared only with Jagirdars Who were paying such sums, and (iv) in respect of Jagirdars who were paying tribute or any sums of recurring nature referred to in sub. clause (ii) of clause 4 of the Second Schedule at different scales, the Government shall prescribe a percentage of the gross income at which the amount of tribute or such sums in respect of each Jagirdar shall be calculated irrespective of whether the amount of tribute or such sums of recurring nature that were being actually paid by him. " What we have said earlier about the construction of the word 'tribute ' in r. 4 of Schedule II would equally apply to the construction of that expression as it occurs in the provision extracted from Schedule III. Notwithstanding therefore that the definition in section 2(r) of the Rajasthan Act is 'inclusive ' it appears to us from an examination of the meaning of the word as used in the operative provisions of the Act, that it could refer only to recurring payments which could be said to be attributable to particular years and not to the type of ad hoc payments of which hukamnamas and patta fees are examples. It might very well be that the words at the end of section 2(r) "other charges of a similar nature" might not exhaust all the payments which a 'tribute ' connotes but still if the rest of the Act indicates unmistakably the intention, that the word 'tribute ' has been used in a special sense taking into account the law and usage obtaining in the locality, these cannot be disregarded in favour of a wider construction based merely upon the dictionary meaning of the expression. We need hardly add that the provision to which we have adverted should suffice to show that the construction put forward by learned Counsel for the petitioner would work to the grave disadvantage of the Jagirdars and would cause them deprivation which could never have been intended. We have thus reached the same conclusion as the learned Judges of the Rajasthan High Court, though on a different line of reasoning. 451 On the construction which we have adopted of the expression 'tribute ' in section 4 of the Rajasthan Act the petitioner can have no legal or legitimate grievance against the enforcement of the payment made against him. The petition fails and is dismissed. There will st, be no order as to costs. Petition dismissed.

The title of the petitioner to succeed to the jagir as the next heir of his father who died in July 1946 was recognised and a renewal granted in his favour by the Government by an order dated March 8, 1952. Section 190 of the Marwar Land Revenue Act, imposed an obligation on the succeeding heir to 1949, execute within one month of the communication to him of the order a kabuliyat for payment of hukammama and other fees according to the scale of fees prescribed under the Act, and the amount payable by the petitioner thereby which came to Rs. 30,000 was demanded by the respondent State. In the meantime, the Rajasthan Land Reforms and Resumption of jagirs Act, 1952, had been passed and came into force on February 16, 1952, and section 4(a) of this Act enacted that "the liability of all jagirdars to pay tribute to the Government under any existing jagir Law shall cease", while "tribute" was defined by section 2(r) in the following terms . "Tribute ' in relation to a jagir, includes rekh, rakam, chatund, chakri or other charge of a similar nature". The petitioner challenged the legality of the demand on the ground that the liability to pay hukamnama was a tribute within the meaning of that word in section 4(a). Held, that notwithstanding that the definition of the ex pression "tribute" in section 2(r) of the Rajasthan Land Reforms and Resumption of jagirs Act, 1952, is inclusive, on an examination of the meaning of the word as used in the operative provisions of the Act, it could refer only to recurring payments which could be said to be attributable to particular years and not to the type of ad hoc payments of which hukamnama was an example. Accordingly, the liability to pay hukamnama is not compre hended within the expression "tribute" under section 4(a), and, consequently, was not extinguished by the provisions of the Rajasthan Act of 1952. Thakur Narpat Sinah vs The State of Rajasthan, I.L.R. , referred to.

% The Deputy Assessor and Collector of the Assessment and Collection Department of the Municipal Corporation of Delhi, issued an order to the petitioners, demanding payment of Rs.14,07,328 as composite arrears of the property tax, fire tax, water tax, scavenging tax and education tax. The petitioners moved this Court under Article 32 of the Constitution for the issuance of a writ of certiorari, quashing the demand order. Disposing of the Writ Petition, without expressing any opinion on the merits of the case, and allowing liberty to the petitioners to file, if so advised, a writ petition before the High Court under Article 226 of the F. Constitution, the Court, ^ HELD: The scope of the powers of the High Courts under Article 226 of the Constitution is wider than the scope of the powers of this Court under Article 32 of the Constitution. The relief prayed for in the petition is one which may be granted by the High Court. Any party aggrieved by the decision of the High Court can appeal to this Court. That some case involving the same point of law is pending in this Court, is no ground for this Court to entertain a petition, by passing the High Court. If the parties get relief in the High Court, they need not come to this Court, and, to that extent, the burden on this Court is reduced. This Court has no time today even to dispose of cases which have to be decided by it alone. A large number of cases have been pending in this Court for ten to fifteen years. If no fresh cases are filed in this Court thereafter, this Court, with its present strength of Judges, may take more than 15 years to dispose of all the pending cases. If the cases, which can be filed in the High Courts, are filed there and not in this Court, the work of this Court in its original Jurisdiction, which is a time consuming process, can be avoided, and the time saved by this 733 Court by not entertaining the case which may be filed in the High Courts, can be utilized to dispose of the old matters, [734E H; 735A E] This Court will also have the benefit of the decisions of the High Courts when it deals with an appeal against such a decision. The High Courts have judges of eminence, who have initiative, skill and enthusiasm. Their capacity should be harnessed to deal with every type of cases, arising from their respective areas, which they are competent to dispose of. If the cases, which may be filed in the High Courts are filed in this Court, this will affect the initiative of the High Courts. The dignity, majesty and efficiency of the High Courts should be preserved. The taking over by this Court of the work which the High Courts can handle, may undermine the capacity and efficiency of the High Courts, which should be avoided. [735E F] The hearing of a case at the level of a High Court is also more convenient from several angles and will be cheaper to the parties. That saves a lot of time too. It is easier for the clients to give instructions to the lawyers. There are eminent lawyers practising in the High Courts, with wide experience in handling different kinds of cases. The lawyers there are fully aware of every legislation in their States. [734G]

These petitions by the holder of Kavalappara Sthanam, his wife, daughters and soil challenged the constitutional validity of the Madras Marumakkathayam (Removal of Doubts) Act, 1955 passed by the Madras Legislature soon after the Privy Council had declared the properties in possession of the Sthanee to be Sthanam properties in which the members of the tarwad had not interest. Section 2 Of the Act, which contained the substantive provision, was as follows: " 2. Notwithstanding any decision of Court, any sthanam in respect of which: (a) there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarwad, or (b) the members of the tarwad have been receiving main. tenance from the properties purporting to be sthanam properties as of right, or in pursuance of a custom or otherwise, or (c)there had at any time been a vacancy caused by there being, no male member of the tarwad eligible to succeed to the Sthanam, 888 shall be deemed to be and shall be deemed always to have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which .he provisions of the Madras Marumakkathayam Act, 1932 (Mad. XXII of 1933), shall apply. " The question for decision was whether the impugned Act infringed the fundamental rights of the petitioners guaranteed by articles 4, 19(1)(f) and 31 of the Constitution. Held (per Sinha, C. J., Subba Rao and Shah, JJ.) that the three tests laid down by the Act were contrary to the well settled principles of Marumakkathayam Law with regard to which there could be no scope for doubt and as such not only not germane but extraneous to the object it sought to achieve. They were a device to deprive the sthanam of its properties and vest them in the tarwad and as such directly hit by article 19(1)(f) and could not be saved by article 19(5). Assuming that the Sthanam properties were held in janmam right and as such were estates within the meaning of article 31A, the impugned Act was immune from challenge. That Article, properly construed, envisages agrarian reform and provides for the acquisition, extinguishment or modification of proprietary and various other kinds of subordinate rights in a tenure called the estate solely for that purpose and must be limited to it. Although it may not be permissible to refer to the statement of objects and reasons of its amendment for purposes of construction, it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time and purpose underlying the amendment. Aswini Kumar Ghose vs Arabinda Bose, [19531 S.C.R. 1, con sidered. There is no substance in the argument that since the impugned Act seeks to regulate the rights of the Sthanee and the junior members of the tarwad inter se it falls within by cl. (2)(b) of article 31A. That clause has to be read with cl. (1)(a) of the Article and since the impugned Act does not contemplate any agrarian reform or seek to regulate the rights inter se between landlords and tenants or modify or extinguish any of the rights appertaining janmam right, leaving all its characteristics intact, it does not come within the purview of article 31A of the Constitution. Sri Ram Ram Narain vs State of Bombay, [1959] SUPP. 1 S.C.R. 489, and Atma Ram vs State of Punjab, [1959] SUPP. 1 S.C.R. 748, referred to. Fundamental rights have a transcendental position in the Constitution and before an Article embodying a fundamental right can be construed to exclude another every attempt should be made to harmonize them and not until it is found impossible to do so, can one be made to yield to the other. Barring such exceptional cases, any law that infringes any of the fundamental rights must be void. 889 The word 'law ' in article 31(1) must mean a valid law, and such a law must satisfy two tests, (1) that the legislature must be competent to enact it and (2) that it must not infringe any fundamental rights. A law that deprives a citizen of his property must, therefore, be invalid if it infringes article 19(1)(f) of the Constitution. Deep Chand vs State Of U. P., [1959] SUPP. (2) S.C.R. 8, and Basheshway Nath vs Commissioner of Income tax, Delhi, [1959] Supp. 1 S.C.R. 528, referred to. Article 31 Of the Constitution, since its amendment by the Constitution (Fourth Amendment) Act, 1955, is no longer a selfcontained Article providing for a subject different from that dealt with by article 19, but deals with two different subjects, CIS. (2) and (2A) dealing with acquisition and requisition and cl. (1) with deprivation of property by authority of law, and can no longer be construed on the analogy of article 2 1 so as to exclude the operation of article 19. The State of West Bengal vs Subodh Gopal Bose, [1954] S.C.R. 587, A. K. Gopalan vs The State of Madras, ; , referred to. State of Bombay vs Bhanji Munji and Any., [1955] 1 S.C.R. 777, held inapplicable. Nor does article 31(1) deal with police power. Although such power, as understood in America, is no arbitrary power divorced from social control and public good, there can be no need of importing such a doctrine into the Indian Constitution. The word 'law ' used by article 31(1) indicates its limitation and refers back to article 19 and any law made under article 31(1) can be sustained only if the restrictions it imposes are reasonable and in the interest of the general public. The Constitution does not confer on the Indian Parliament the same power which the Parliament of England possesses and while it does contemplate a welfare State, that has to be brought about within its frame work of the Constitution itself. The correct approach should, therefore, be first to ascertain the fundamental right and then to see whether the law infringes that right. If ex facie it does so, it has to stand the test of article 19(5). In certain circumstances, however, deprivation of fundamental right to property may also amount to a reasonable restriction under the Article. Narendra Kumar vs The Union of India, [196O] 2 S.C.R. 375, referred to. Individual proprietary rights being ordinarily inviolable unless a clear case is made out for restricting them, there must be a harmonious balancing between the fundamental rights declared by article 19(1) and social control permitted by article 19(5). It is implicit in the nature of restrictions that no inflexible standard can be laid down and each case must be decided on its own facts. But the restrictions must not be arbitrary and must have a reasonable relation to the object sought to be achieved and shall be in the interest of the general public. 890 State of Madras vs V. G. Rao, ; , Henry Webster vs Peter Cooper, ; , and The Citizens ' Savings and Loan Association and Cleaveland, Ohio vs Topeka City, ; , referred to. Although the redress of a real and genuine grievance of a section of the community may be in public interest, it is impossible to hold that the impugned legislation was either justified or in such public interest. Iswari Prosad vs N. R. Sen, A.I.R. 1952 Cal. 273, held in applicable. Marumakkathayam Law is a body of customs and usages that have received judicial recognition, and is fundamentally different from Hindu Law, being a matriarchal system. The family, called tarwad, consists of all the descendants of one common ancestor. It consists of a mother and her male and female children and the children of those female children and so on. Only the senior most male member can attain the sthanam, which is a position of dignity with specific properties attached to it. When he does so and becomes the Sthanee he ceases to have any interest in the tarwad properties. Occasionally a female member also becomes the Sthanee. Like a Hindu widow or an impartible estate holder the Sthanee has an absolute interest in the income of the Sthanam properties or acquisitions therefrom. A member of the tarwad has no right to maintenance from out of the Sthanam properties nor can such property be converted into tarwad property by the grant of such maintenance by custom or otherwise or intermingling of the Sthanam properties with the tarwad properties by the Sthanee. His position approximates to that of a member separated from a Hindu family and there can be no scope for the application of the doctrine of blending. Like the Sthanee who ceases to have any present proprietary interest in the tarwad, the members of the tarwad also can have no present proprietary interest in the sthanam property. They continue to be blood relations with a contingent right of succession to each others ' property that is no more than a spies successions. The right of a subsequently born male member of the tarwad to succeed to the Sthanam and its property is judicially recognised. Case law reviewed. Per Imam and Sarkar, JJ. The impugned Act is protected by article 31A and is not open to question in the ground that it violates articles 14, 19(1)(f) and 31(1) Of the Constitution. There is no basis for the contention that article 31(1)(a) contemplates a law relating to agrarian reform only. The Article makes no mention of any such reform and there can be no doubt that under it a janmam right may be acquired, extinguished or modified whether the land held in such right is agricultural or not. It is not permissible to refer to the objects and reasons stated in the Bills, by which the Acts amending article 31A of the Constitution were introduced, for the construction of the statute and, therefore, the word 'law ' in article 31A(1) cannot be read in relation to sub cl. (a) only as a law intended to achieve agrarian 891 reform on the basis of the supposed object of the Legislature in enacting article 31A. Aswini Kumar Ghose vs Arabinda Bose, ; referred to. It is not correct to say that the impugned Act does not effect any modification of janmam rights and therefore it does not come within article 31A. When the Article speaks of modification of janmam rights, it does not speak of such rights in the abstract but contemplates the modification of such rights held by a person. It would be as much modification of janmam rights, if such rights held by one person are directed to be held by a number of persons jointly, as when the incidents of such rights are altered. Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 S.C.R. 489, and Atma Ram vs State of Punjab, [1959] Supp. 1 S.C.R. 748, relied on. It is not correct to say that the Legislature in giving the provisions of the impugned Act retrospective operation or in providing that they should prevail notwithstanding any decision of the court to the contrary, was acting judicially and not in a legislative capacity and that the Act was on that ground invalid. The rule obtaining in America that legislative action cannot retract on past controversies and reverse decisions of courts and the relevant American decisions can have no application in India. Piare Dusadh 's case, , referred to.

The petitioners challenged the constitutional validity of Jammu and Kashmir Agrarian Reforms Act, 17 of 1976 on the ground that the Act violated Articles 14, 19 and 31 of the Constitution. The petitioners contended that as the Act contained certain provisions which were not co related to agrarian welfare, the Act could not be said to be a measure of agrarian reform and therefore not saved by Article 31A of the Constitution. Dismissing the petitions, ^ HELD: The Act is a measure of agrarian reform and is saved by article 31A from the challenge under articles 14, 19 or 31 of the Constitution. [541 D] The question as to whether any particular Act is a measure of agrarian reform has to be decided by looking at the dominant purpose of that Act. In the instant case the dominant purpose of the statute is to bring about a just and equitable redistribution of lands, which is achieved by making the tiller of the soil the owner of the land which he cultivates and by imposing a ceiling on the extent of the land which any person, whether landlord or tenant, can hold. The matters which are dealt with by the Act are essential steps in any well conceived scheme of agrarian reform. The decision in Kochuni was treated in Ranjit Singh as a special case which cannot apply to cases where the general scheme of legislation is definitely agrarian reform and under its provisions, something ancillary thereto in the interests of rural economy has to be under taken to give full effect to those reforms. [541 A D, 541 D] Ranjit Singh vs State of Punjab, ; and Kavalappara Rottarathil Kochuni & Ors. vs State of Madras & Ors., , referred to. The circumstance that the Act is made applicable to agricultural lands situated within the limits of local authorities will not affect its character as a measure of agrarian reform. If any land situated in a developed area is used predominantly for the purpose of agriculture, it is open to the legislature to 537 include that land in a scheme of agrarian reform so as to make the tiller of that land its owner. The hypothetical possibility that after becoming statutory owners of agricultural lands situated in developed areas on payment of a paltry price, the tillers will part with those lands at a high price which lands in developed areas like urban areas fetch, cannot affect the basic position that the Act is conceived in the larger interest of agrarian reform. The payment of a larger compensation to land holders under a land reform law than what would be payable under an Act like the Urban Ceiling Act does not lead to the conclusion that the former is not a measure of agrarian reform. [543 A F] Section 7(2)(b) of the Act creates an anomalous situation, especially in the context of the definition of 'personal cultivation ' in section 2(12) of the Act. If it is permissible to cultivate a land through another person as specified in clauses (b) to (g) of section 2(12), there is no reason why residence in the village where the land is situated or in an adjoining village should be compulsory for all persons, even for minors, widows, insane persons and persons in detention. The exception made by the legislature in favour of the members of defence forces ought to be extended to these other persons also. The exclusion of a constitutional challenge under Articles, 14, 19 and 31 which is provided for by Article 31A does not justify in equity the irrational violation or these articles. [543 G, 544 B D] Waman Rao & Ors. vs Union of India & Ors. ; , referred to.

The lands in question which were within the permanently settled Zamindari in the then presidency of Madras, belonged to T who, during his lifetime, was cultivating the lands. He died in 1885 leaving behind, inter alia, three daughters. After the death of the three daughters, the last having died in 1935, the sons of one of them instituted a suit against the descendants of the other two for partition and separate possession of a third share, inter alia in the lands in question on the footing that T owned occupancy rights in the lands. The suit was resisted on the plea that T had, no proprietary right in the lands, that he was only an annual tenant of the Zamindar, that after his death the lands were held on similar tenure by different members by his family and that occupancy rights were acquired by those members of his family who were in possession of the lands when the Madras Estates Land Act, 1908, came into force in 1908. There was no evidence to show that the occupation of the lands by T commenced under the Zamindar, nor was there any evidence as to the terms on which he or his predecessors were inducted on the lands, the commencement of the tenancy and the terms thereof being lost in antiquity, but he and his descendants were proved to have continued in possession of the lands uninterruptedly till the enactment of the Madras Estates Land Act, 1908. Held, that in cases in which a ryot 's holding is not shown to have commenced subsequent to the permanent settlement, the presumption is that Zamindar was only the holder 654 of the melvaram being the assignee of the Government revenue, and that the kudivaram in the land belonged to the ryot who Was entitled to continue in possession as long as he paid the rent regularly; and that this principle was applicable equally in a Suit between persons claiming under the ryot as in a suit against the ryot by the Zamindar. Case law relating to the rights of ryots in Zamindaries in the Madras Presidency reviewed. Held, further, that T was the holder of the occupancy rights in the lands, , that these rights devolved upon his successors and that the said occupancy rights were not acquired by virtue of the provisions of the Madras Estates Land Act, 1908.

The respondent was the tenant of a tract of land which formed part of a forest and continued to remain in possession thereof after the Zermindari interest of the proprietor became vested in the State Government under the Bihar Land Reforms Act, 1952. The Government notified its intention to constitute the forest a private protected forest and by a subsequent notification under section 30 of the Indian Forest Act prohibited the breaking up or cleaning the land of this and certain other "protected forests" for cultivation whereupon the employees 'of the Forest Department started interfering with the agricultural operations carried on by the respondent. The respondent then sought the permission of the Collector to start reclamation and cultivation of this area and the Collector gave him permission to "go ahead with the work of reclamation and cultivation of this area. " The forest officer disregarded the Collector 's order and made the respondent stop reclamation. Ultimately the Government interfered insisting on the withdrawal of the Collector 's order. The questions which arose for decision in this case was whether (1) the order passed by the Forest officer on the basis of rule of the Bihar Protected Forest Rules,which prohibited the cutting or removal of trees without the permission of the Forest Officer should prevail over the permission granted by the Collector under r. 8 and (2) whether the respondent 's right to the land had ceased under section 19 of the Bihar Private Forests Act. Held, that rr. 1 to 4 apply to the cutting or removal of trees where inspite of such cutting the forest would remain a forest but those rules did not control the cutting of trees which would be necessary for clearing the land for cultivation or any other purpose which was controlled only by r. 8. In the present cast the permission given by the Collector under r. 8 was in accordance with law and neither the Forest Officer nor the Government had any authority in law to interfere with that permission for the clearing or cultivation of the land. The extinction of rights under section 19 of the Act could take place only after the publication of the final notification 728 under section 30 and not by a notification under the proviso thereof pending the completion of enquiries under the provisions of the Act.

By an unregistered document the husband of the petitioner granted her the right to take and appropriate all kinds of wood from certain forests in his Zamindary. With the passing of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, all proprietary rights in land vested in the State under section 3 Of that Act and the petitioner could no longer cut any wood. She applied to the Deputy Commissioner and obtained from him an order under section 6(2) of the Act permitting her to work the forest and started cutting the trees. The Divisional Forest Officer took action against her and passed an order directing that her name might be cancelled and the cut materials forfeited. She moved the State Government against this order but to no effect. Thereafter she applied to this Court under article 32 of the Constitution and contended that the order of Forest Officer infringed her fundamental rights under articles 19(i)(f) and 19(1)(g) : Held (per curiam), that the order in question did not infringe the fundamental rights of the petitioner under articles 19(1)(f) and 19(i)(g) and the petition must be dismissed. 34 266 Ananda Behera vs The State of Orissa, [1955] 2 S.C.R. gig, followed. Chhotabai jethabai Patel and Co. vs The State of Madhya Pradesh, ; , not followed. Held (per Das C. J., Venkatarama Aiyar, section K. Das and A. K. Sarkar, jj.), that it was not necessary to examine the docu ment minutely and finally determine its real character for the purpose of deciding the matter in controversy, for whatever construction might be put on it, the petition must fail. If the document purported to transfer any proprietary interest in land, it would be ineffective both for non registration under the Registration Act and under section 3 of the Madhya Pradesh Abolition of Proprietary Rights Act which vested such interest in the State. If it was a profits a prendre that was sought to be transferred by it, then again the document would be compulsorily registrable as a profits a prendre was by its nature immoveable property. If it was a contract that gave rise to a purely personal right, assum ing that a contract was property within the meaning of article 19(i)(f) and 31(1) Of the Constitution, the petitioner could not complain as the State had not acquired or taken possession of the contract which remained her property and she was free to dispose of it in any way she liked. The State not being a party to that contract would not be bound by it, and even if for some reason or other it could be, the remedy of the petitioner lay by way of a suit for enforcement of the contract and compensation for any possible breach of it and no question of infringement of any fundamental right could arise. Per Bose, J. The document conferred a right on the peti tioner to enter on the lands in order to cut down and carry away, not merely the standing timber, but also other trees that were not in a fit state to be felled at once. The grant was, therefore, not merely in respect of moveable property but immoveable property as well. Being valued at Rs. 26,ooo, the document was compulsorily registrable under the Registration Act otherwise no title or interest could pass ; and in absence of such registration the petitioner had no fundamental rights that could be enforced, as held by this court in Ananda Behera 's case. Although standing timber is not immoveable property under the Transfer of Property Actor the Registration Act, trees attacked to the earth which are immoveable property under section 3(26) of the General Clauses Act, as also section 2(6) of the Registration Act, must be so under the Transfer of Property Act as well.

The petitioners who were displaced persons from West Pakistan put forward certain claims in regard to village houses which they had left there, but which were rejected by the Rehabilitation authorities. The claims were for amounts above Rs. 20,000 in the case of some of the petitioners and above Rs. 10,000 in the case of the others. By r. 5 framed under the , claims could be verified provided, inter alia, that where a claimant had been allotted any agricultural land in India and such land so allotted exceeded four acres, the value of the building in respect of which the claim was made shall not be less than Rs. 20,000 and where it did not exceed four acres the claim made was not less than Rs. 10,000 Rule 65 of the , provided that any person to whom more than four acres of agricultural land had been allotted shall not be entitled to receive compensation separately in respect of his verified claim for any rural building the assessed value of which was less than Rs. 20,000, and any person allotted four acres or less was not entitled to receive compensation where the value was less than Rs. 10,000 The petitioners challenged the validity of the aforesaid rules as being discriminatory and thereby contravening article 14 of the Constitution of India on the grounds that the object of the various Acts and the rules made thereunder was to rehabilitate displaced persons but by the rules, classifications had been made with reference to houses in rural areas which were discriminatory as neither the classes were based on intelligible differentia nor was there a rational nexus between that differentia and the object sought to be achieved. It was found that the impugned rules were made in pursuance of an Inter Dominion Agreement between the two Governments with regard to evaluation of evacuee property, which had received recognition in article 31(5) (b)(iii) of the Constitution. Held, that the impugned rules afforded a reasonable justifi cation for the classification and did not contravene article 14 of the Constitution.

4,36 and 37 of 1958. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. R. Ganapathy Iyer and K. L. Hathi, for the petitioners. C. K. Paphtary, Solicitor General of India, B. R. L. Iyengar an(! P. M. Sen, for the respondents. 280 1961. March 14. The Judgment of the Court was delivered by KAPUR, J. These are three petitions under article 32 of the Constitution challenging the imposition of sales tax on betel leaves by the Sales Tax Officer, Akola. The question raised in all the three petitions is the same and can conveniently be disposed of by one judgment. The petitioners in the three petitions are dealers in betel leaves at Akola, now in the State of Maharashtra and at the relevant time in the State of Madhya Pradesh. The Assistant Sales Tax Officer at Akola assessed the petitioners under the provisions of the C. P. & Berar Sales Tax Act, 1947 (Act XXI of 1947), hereinafter termed the "Act" to the payment of gales tax as follows: Writ Petition period Amount No. W.P. No. 4/58 7 11 53 to 26 10 54. Rs. 1882 9 0 & 27 10 54 to 14 11 55. Rs. 1885 13 0 W.P. No. 36/58 27 10 54 to 26 10 55. Rs. 1890 3 0 W.P. No. 37/58 27 10 54 to 14 11 55. Rs. 3530 4 0 The petitioners in W. P. Nos. 4 and 36 did not appeal under section 22 of the Act but the petitioner in W. P. No. 37 did appeal under that section. As he did not deposit the amount of tax the petition was dismissed. He then filed a petition under article 226 in the High Court of Nagpur but that petition was withdrawn and therefore no decision was given on the merits of the case. In all the petitions the submission of the petitioners is that the order demanding tax was without authority of law inasmuch as betel leaves were not taxable under section 6 read with the second Schedule of the Act. The imposition of the tax, it is alleged. is an infringement of the petitioners ' right to carry on trade 281 or business guaranteed under article 19(1)(g) of the Con stitution and the prayer is for the issue of a writ of certiorari quashing the order of the Assistant Sales Tax Officer and for prohibition. Section 6 of the Act under which the exemption is claimed provides: S.6(1) "No tax shall be payable under this Act on the Sale of goods specified in the second column of Schedule II, subject to the conditions. and exceptions, if any, set out in the corresponding entry in the third column thereof (2)The State Government may, after giving by notification not less than one month 's notice of their intention so to do, by a notification after the expiry of the period of notice mentioned in the first notification amend either Schedule,, and thereupon such Schedule shall he deemed to be amended accord ingly." Thus under the Act all articles mentioned in the Schedule were exempt from Sales Tax and articles not so specified were taxable. In the Schedule applicable there were originally two items which are relevant for the purposes of the case. They were items Nos. 6 and 36: Item 6 Vegetables Except when sold in sealed containers. Item 36 Betel leaves. The Schedule was amended by the C. P. & Berar Sales Tax Amendment Act (Act XVI of 1948) by which item No. 36 was omitted. It is contended that in spite of this omission they were exempt from Sales Tax as they are vegetables. The intention of the legislature in regard to what is vegetables is shown by its specifying vegetables and betel leaves as separate items in the Schedule exempting articles from Sales Tax. Subsequently betel leaves were removed from the Schedule which is indicative of the legislature 's intention of not exempting betel leaves from the imposition of the tax. But it was submitted that betel leaves are vegetables and therefore they would be exempt from Sales Tax under item 6. Reliance was placed on the 36 282 dictionary meaning of the word "vegetable" as given in Shorter Oxford Dictionary where the word is defined as "of or pertaining to, comprised or consisting of, or derived, or obtained from plants or their parts". But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not been defined in the Act and being a word of every day use it must be construed in its popular sense meaning "that sense which people conversant with the subject matter with which the statute is dealing would attribute to it. " It is to be construed as understood in common language; Caries on Statute Law, p. 153 (5th Ed.). It was so ' held in Planters Nut Chocolate Co. Ltd. vs The King (1). This interpretation was accepted by the High Court of Madhya Pradesh in Madhya Pradesh Pan Merchants ' Association, Santra Market, Nagpur vs The State of Madhya Pradesh (Sales Tax Department) (2) where it was observed: "In our opinion, the word "vegetables" cannot be given the comprehensive meaning the term bears in natural history and has not been given that meaning in taxing statutes before. The term "vegetables" is to be understood as commonly understood denoting those classes of vegetable matter which are grown in kitchen gardens and are used for the table. " In that case the word "vegetables" was construed and in our opinion correctly construed in relation to the very provisions of the Act which are now in controversy before us. In cases under the U. P. Sales Tax Act betel leaves have been held not to be within the expression "green vegetables"; Brahma Nand vs The State, of Uttar Pradesh(3); Firm Shri Krishna Chaudhry V. Commissioner of Sales Tax (4). In Bhairondon Tolaram vs The State of Rajasthan (5) they were held not to be plants and in Kokil Ram & Sons vs The State of Bihar (6), it was held that vegetables meant plants cultivated for food and Paw are not foodstuffs. in Dharamdas Paul vs Commissioner of Commercial (1) 389. (3) [1956]7 S.T.C 2o6. (5) [1957] 8 S.T.C. 798. (2) [1956]7 S.T.C. 99, 102. (4) [1956] 7 S.T.C. 742. (6) [1949]1 S.T.C. 217 283 Taxes also they were held not to be vegetables which specifically meant Sabzi, Tarkari and Sak. Therefore &part from the fact that the legislature by using two distinct and different items i.e. item 6 "vegetables" and item No. 36 "betel leaves" has indicated its intention, decided cases also show that the word "vegetables" in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table. In our view, betel leaves are not exempt from taxation. Those petitions therefore fail and are dismissed with costs. One hearing fee. Petitions dismissed.

The petitioners who were dealers in betel leaves were asses sed to sales tax by the Assistant Sales Tax Officer under the provisions of the C. P. and Berar Sales Tax Act, 1947. The contention of the petitioners was that under section 6 read with the second schedule of the Act betel leaves were not taxable. Under section 6 of the Act articles mentioned in the said Schedule were exempt from Sales Tax and articles not mentioned were taxable. There were two items in the Schedule, namely, item 6, "vegetables", and item 36, "betel leaves", but subsequently item No. 36 was omitted by an amendment of the Act. Held, that the use of two distinct and different items i.e., "vegetables" and "betel leaves" and the subsequent removal of betel leaves from the Schedule were indicative of the Legislature 's intention of not exempting betel leaves from taxation. The word "vegetable" must be interpreted not in a technical sense but in its popular sense as understood in common language i.e., denoting a class of vegetables which are grown in a kitchen garden or on a farm and are used for the table. Planters Nut Chocolate Co. Ltd. vs The King, (1952) 1 Dom. L.R. 385, Madhya Pradesh Pan Merchants ' Association, Santra Market, Nagpur vs The State of Madhya Pradesh (Sales Tax Departmwnt) [1956] 7 S.T.C. 99, Bhairondon Tolaram vs The State of Rajasthan, [1957] 8 S.T.C. 798, Kokil Ram & Sons vs The State of Bihar, [1949] 1 S.T.C. 217 and Dharam Das Paul vs The Commissioner of Commercial Taxes, [1958] 8 S.T.C. 194, considered. Brahma Nand vs The State of Uttar Pradesh, [1956] 7 S.T.C. 206 and Firm Shri Krishna Chaudhry vs Commissioner of Sales Tax, [1956] 7 S.T.C. 742, referred to.

The appellant company was a dealer in ghee and groundnut oil etc. The Deputy Commercial Tax Officer assessed it to sales tax for the year 1948 49 on a turnover of Rs. 28,69,151 and odd. Similarly for the year 1949 50 the appellant was assessed to sales tax on a turnover of Rs. 28,72,o83 and odd. The appellant challenged these assessments and its appeal before the Commercial Tax Officer having failed the two matters came up in second appeal before the Sales Tax Appellate Tribunal. In the Tribunal the appellant did not place any materials in support of its contentions and the two appeals were disposed of by the Tribunal holding that the appellant was correctly assessed to sales tax. In respect of the aforesaid orders of the Tribunal the appellant filed applications for review under section 12A(6)(a) of the Madras General Sales Tax Act, 1939 (Mad. Act IX Of 1939), taking the plea that in the first case the materials could not be placed before the Tribunal as there was none to instruct the appellant 's advocate in English or Telegu, and in the second case the relevant correspondence was mixed up with other records. The Tribunal rejected the applications for review on the ground that a failure to produce the necessary materials in support of a plea taken before it, due either to gross negligence or deliberate withholding, did not come within the reason of section 12A(6)(a) of the Act. The High Court upheld the decision of the Tribunal. On appeal by special leave in one case and a certificate of the High Court in the other: Held, that the provision in section 12A(6)(a) of the Madras General Sales Tax Act, 1939 (Mad. Act IX Of 1939), permits a review when through some oversight, mistake or error the necessary facts, basic or evidentiary, were not present before the Court when it passed the order sought to be reviewed, but a party was not 805 entitled to ask for a review when it had deliberately or intentionally withheld evidence in support of a claim made by it. State of Andhra vs Sri Arisetty Sriyamulu, A.I.R. 1057 Andhra Pradesh 130, not approved.

The Income tax Officer (respondent No.(1) served a notice under section 22 of the Income tax Act on the appellant. Upon the receipt of the notice, the appellant appeared before the Income tax Officer. The appellant pleaded before the Income tax Officer that it did not fall under any of the five categories of assessees under section 3 of the Income tax Act. The appellant also raised the contention that it was a local authority exempt from income tax. All these contentions were rejected by respondent No. 1 with the result that the impugned orders of assessment came to be passed. The appellant filed Writ Petitions before the High Court in which it challenged the impugned orders of assessment passed by respondent No. 1. In its Writ Petitions, the appellant claimed an ,order, writ or other appropriate direction quashing the assessment orders passed by respondent No. 1. The High Court dismissed these writ petitions. The High Court held that the appellant could not claim the exemption under article 289(1) because it was not a state owned Corporation. The High Court granted a certificate under article 133 of the Constitution and hence the appeal. Held: (i) article 289 of the Constitution consists of three clauses. The first clause confers exemption from union taxation on the property and income of a State. Clause (2) then provides that the income from trade or busi ness carried on by the Government of a State or on its behalf which would not have been taxable under cl. (1), can be taxed, provided a law is made by Parliament in that behalf. In other words cl. (2) is an exception to cl. Clause (3) then empowers Parliament to declare by law that any trade or business would be taken out of the purview of cl. (2) and restored to the area covered by cl. (1) by declaring that the said trade or business is incidental to the ordinary functions of Government. In other words, cl. (3) is an exception to the exception prescribed by cl. (ii) A trading activity carried on by the corporation (appellant) is not a trading activity carried on by the State departmentally, nor is it a trading activity carried on by a State through its agents appointed in that behalf because according to statute the Corporation has a personality of its own and this personality is distinct from that of the State or other shareholders. All the relevant provisions of the impugned Act also emphatically bring out the separate personality of the Corporation. Section 30 of the Act also does not suggest that the income of the 18 Corporation is the income of the State. All that section 30 requires is that a part of that income may be entrusted to the State Government for a specific purpose of road development. Therefore, the income derived by the appellant from its trading activity cannot be said to be the income of the State either under cl. (1) or cl. (2) of article 289. The American doctrine of the immunity of State agencies or instrumentalities from Federal taxation has no application to the present case. Akadasi Padhan vs State of Orissa [1963] Supp. 2 S.C.R. 691, distinguished. Mark Graves, John J. Merrill and John P. Hennessy vs People of the State of New York Upon the Relation of James B.O 'keefe, ; and Clallan County vs United States of America, ; , no application. State of West Bengal vs Union of India [1964] 1 S.C.R. 371, relied on. M 'Culloch vs Maryland, ; , Bank of Toronto vs Lambe and Webb vs Outrim [1907] A.C. 81, referred to. Tamlin vs Hansaford, , relied on. (iii)It is hardly necessary for the Act to make a provision that tax,if chargeable would be paid. In fact, the Companies Act which deals with companies does not make such a specific provision, though no one can seriously suggest that there would be repugnancy between the provisions of the Companies Act and the Income tax Act. There is no repugnancy between the charging section of the Income tax Act and sections 29 and 30 of the Act. All that sections 29 and 30 of the impugned Act purport to do is to provide for the administration of the funds vesting in the Corporation and their disposal. These provisions are not inconsistent with the liability to pay tax which is imposed by the Income tax Act.

There was 'much ado about nothing ' about these Writ Petitions under Article 32 of the Constitution. The petitions sought to challenge the Vires of sections 14(1)(b), 16(2) and, incidentally, sec. 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 on the ground of being arbitrary, discriminatory and unreasonable. The different petitions had different facts, and it was considered appropriate to deal with the facts of the writ petition filed by Prabhakaran Nair (Writ Petition No. 506 of 1986) as a typical case to appreciate the points in issue. In that case, the respondents landlords, after purchasing the premises in dispute from the erstwhile owner, filed an application for the eviction of the petitioner from the said premises on the grounds of non payment of rent under section 10(2)(1), unlawful sub letting under section 10(2)(ii)(a), causing damages to the premises under section 10(2)(iii) and demolition and reconstruction of the premises under section 14(1)(b) of the Tamil Nadu Rent Act. The Trial Court ordered eviction only under section 14(1)(b) of the Act for demolition and reconstruction, rejecting the other grounds. The appellate court dismissed the appeal of the petitioner. The High Court also dismissed the civil revision petition of the petitioner. The petitioner then filed a petition for Special Leave in this Court against the judgment and order of the High Court. In the meanwhile, the City Civil Court, on January 29, 1983, granted interim injunction, restraining the respondents landlords from demolishing the building till the disposal of an application filed by the petitioner in the suit, against the erstwhile owner and the present landlords for specific performance of an agreement to sell the premises to the petitioner. The injunction was stated to have been confirmed and was still continuing as the said application for specific performance was still pending in the City Civil Court. 2 This Court dismissed the petition for special leave, observing that the petitioner would be at liberty to file, if so advised, a writ petition under Article 32 of the Constitution, challenging the validity of section 14(1)(b) of the Act. The petitioner filed this writ petition, challenging the validity of sections 14(1)(b) and 16(2) of the Tamil Nadu Rent Act as being arbitrary, discriminatory, unreasonable and unconstitutional, and contending consequently that the eviction order passed against him under section 14(1)(b) was illegal. Several of the other writ petitions were on this issue. Dismissing the Writ Petitions, the Court, ^ HELD: In this case, the Court was not concerned with clause (ii) of section 30 of the Tamil Nadu Act, a challenge to the validity of which had been accepted by the Court in Rattan Arya and others vs State of Tamil Nadu and another; , and the section 30(ii) had been struck down as violative of Article 14 of the Constitution. [10E] Under section 14(1)(b) of the Act, a landlord could make an application to the Rent Controller for possession of a building, and the Rent Controller, if satisfied that the building was bona fide required by the landlord for the immediate purpose of demolition and such demolition was for the purpose of erecting a new building on the site of the building sought to be demolished, might pass an order, directing the tenant to deliver possession of the building to the landlord before a specified date. Under the provisions of the Act, the landlord has to commence the work of demolition not later than one month and the entire demolition work shall be completed before the expiry of three months from the date he recovers possession of the entire building, and in the case of massive buildings, demolition can take six months or even a year, in which case, for reasons to be recorded in writing, the controller may allow further period. During that period a tenant was bound to have found some other suitable alternative accommodation. In the case of a building vacated for repairs under section 14(1)(a) of the Act, a tenant may arrange for a temporary accommodation for a few months and then return to the building. It was not practicable and would be anomalous to expect a landlord to take back a tenant for a re constructed building after a long lapse of time during which the tenant must necessarily have found some other suitable accommodation. This was the true purpose behind section 14(1)(b) read with section 14(2)(b). In that view of the matter, the Court was unable to accept the submission that in providing for the re induction of the tenant in the case of repairs and not in the 3 case of re construction, there was any unreasonable and irrational classification without any basis. The absence of the provision for reinduction does not ipso facto make the provisions of the Act unfair or make the Act self defeating. [11G, 12A C,D G, 18E] As regards the submission that in most of the Rent Acts, there was a provision for re induction of the tenant after re construction, but in the case of the Tamil Nadu Act, there was no such provision and this was violative of Article 14 of the Constitution, Article 14 of the Constitution does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subjects, its provisions are discriminatory, and nor does it contemplate a law of the centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments; the source of authority for the two statutes being different, Article 14 could have no application, as observed by a Constitution Bench of this Court in the State of Madhya Pradesh vs G.C. Mandawar; , [12G, 13A C] The Act sought to restore the balance in the scale which is otherwise weighted in favour of the stronger party which had larger bargaining power. The Act balances the scales and regulates the rights of the parties fairly and cannot be construed only in favour of the tenant. The main provision of section 14(1)(b) enables a landlord to make an application to the rent controller for possession of the building for demolition for re construction of a new building in its place. If the Rent Controller is satisfied with the bona fide need of the landlord, he may pass an order, directing the tenant to deliver possession of the building to the landlord before a specified date. There must be a bona fide need of the landlord. It could not be said that section 14(1)(b) was arbitrary and that excessive powers had been given to the landlords. [16G H, 17D E] The provisions of the Act imposed restrictions on the landlord 's right under the common law or the Transfer of Property Act to evict the tenant after the termination of his tenancy. The nature, the form and the extent of the restrictions to be imposed on the landlord 's right and consequent extent of the protection to be given to the tenants is a matter of legislative policy and judgment. It is inevitably bound to vary from one State to another according to the local, peculiar conditions prevailing in each State. When the Courts are confronted with the problem of a legislation being violative of Article 14, the Courts are not concerned with the unwisdom of the legislation. "In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review" 4 observations of Krishna Iyer, J. in Murthy Match Works, etc., vs Asstt. Collector of Central Excise, etc., [1974]3 S.C.R. 121, may be seen in this connection. [18F H,19G] The purpose underlying section 14(1)(b) read with section 16(2) of the Act is to remove or mitigate the disinclination on the part of the landlords to expend moneys for demolition of the dilapidated buildings and reconstruct new buildings in their places. It is a matter of which judicial notice can be taken that the return from the old and dilapidated buildings is very meagre, and in several cases, such buildings prove uneconomic for the landlords, resulting in the deterioration of the condition of the buildings, and there are even collapses of such buildings. It is for this purpose that the landlord is given by section 14(1)(b), read with section 16, an incentive in the form of exemption from the provisions of the Act for five years in respect of the reconstructed building. The principle underlying such exemption is not discriminatory against the tenants, nor is it against the policy of the Act. It only serves as an incentive to the landlord for creation of additional accommodation to meet the growing housing needs. These provisions providing for exemption of the new buildings from the provisions of the Rent Act for a period of five years or ten years were upheld vide the decision of this Court in Punjab Tin Supply Co., Chandigarh and Ors. vs The Central Govt. & Ors. , ; at 216, 217. [20C G] The Court was unable to accept the submission that the absence of the right of induction of the tenants in the reconstructed premises was either arbitrary or unreasonable. The Act must be so construed that it harmonises the rights of the landlords and at the same time protects the tenants and also serves best the purpose of the Act, and one of the purposes of the Act is to solve the acute shortage of accommodation by making rational basis for eviction and encouraging building and re building which is at the root of all causes of shortage of accommodation. [23D;24E F] OBITER: There is an acute shortage of housing. The laws relating to letting and landlord and tenant in the different States have from different States ' angles tried to grapple with the problem. Yet, in view of the magnitude of the problem, the problem has become insoluble and the litigations abound and people suffer. More houses, therefore, must be built and more accommodation must be made available for the people to live in. The laws of the landlord and tenant must be made rational, humane, certain and capable of being quickly implemented. The landlords having premises in their control should be induced and 5 encouraged to part with the available accommodation on certain safe guards which will strictly ensure their recovery when wanted. Men with money should be given proper and meaningful incentives, as in some European countries, to build houses. Tax holidays for new houses can be encouraged. The tenants should also be given protection and security and certain amount of reasonableness in the rent. Escalation of prices in the urban properties, land, materials and houses must be rationably checked. The country very vitally and urgently requires a National Housing Policy if we want to prevent a major breakdown of law and gradual disillusionment of the people. After all shelter is one of our fundamental rights. The New National Housing Policy must attract new buildings, rationalise the rent structure and the rent provisions and bring certain amount of uniformity, leaving scope for sufficient flexibility amongst the States to adjust such legislation according to their needs. This Court and the High Courts should also be relieved of the heavy burden of the rent litigations. Tier of appeals should be curtailed. Laws must be simple, rational and clear. Litigation must come to an end quickly. Such New Housing Policy must comprehend the present and anticipate the future. The idea of a National Rent Tribunal on an All India basis should be examined. This has become an urgent imperative of today 's revolution. A fast changing society cannot operate with unchanging law and preconceived judicial attitude. [25B H] Rattan Arya and others vs State of Tamil Nadu and another; , ; State of Madhya Pradesh vs G.C. Mandawar; , ; section Kannappa Pillai and another vs B. Venkatarathnam, 78 Law Weekly 363; P.J. Irani vs State of Madras, ; ; section Kandaswamy Chettiar vs State of Tamil Nadu and another; , ; Raval & Co. vs K.C. Ramachandran & Ors., ; ; Murlidhar Agarwal and another vs State of U.P. and others; , ; Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs Subbash Chandra Yograj Sinha, ; ; Metalware & Co., etc. vs Bansilal Sharma and Ors., etc. ; , ; Meta Ram vs Jiwan Lal, [1962] Suppl. 2.S.C.R. 623; Murthy Match Works, etc. vs Asstt. Collector of Central Excise, etc.; , ; In re: The Special Courts Bill, 1978, ; Punjab Tin Supply Co. Chandigarh & Ors. vs The Central Govt. State of Haryana and Anr., ; at 226, 227; Mehsin Bhai vs Hale and Company G. T. Madras, ; Metalware Co. etc. vs Bansilal Sharma and others, etc. ; , at 1117, 1118 Punjab Tin Supply Co., Chandigarh etc. vs The Central Govt. and Ors. , ; ; Motor General Traders and Anr. etc. vs 6 State of Andhra Pradesh and Ors. etc. ; , at 605; Atam Prakash vs State of Haryana and Ors., ; Panchamal Narayan Shenoy vs Basthi Venkatesha Shenoy, ; ; Jiwanlal & Co. and Ors. vs Manot and Co., Ltd., 64 Calcutta Weekly Notes, 932 at 937 and M/s. Patel Road ways Private Limited, Madras vs State of Tamil Nadu and Ors., , referred to.

The constituent members of the appellant Association, who carried on business in iron and steel articles were assessed to sales tax for the years 1953 54 and 1954 55 under a notification dated October 24, 1953, issued by the State of Madhya Bharat under section 5(2) of the Madhya Bharat Sales Tax Act, Samvat 2007, (Act No. 30 of 1950). The appellant moved the High Court under article 226 of the Constitution challenging the validity of the assessment on the ground that the said articles were covered by the declaration made by Parliament by section 2 of the Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act, 1952, that iron and steel were essential commodities within the meaning of article 286(3) of the Constitution which was operative from August 9, 1952. The High Court found against the appellant. Held, that even assuming that the words "iron and steel" in Entry 14 of the Schedule to the Act were comprehensive enough to include articles made of iron and steel, that would not necessarily render the notification invalid under article 286(3) of the Constitution. Article 286(3), as it stood before the Constitution (Sixth Amendment) Act, 1956, could be successfully invoked only if three conditions were satisfied, (1) that the impugned legisla. tion was one by the Legislature of a State, constituted under the Constitution, (2) that it was subsequent to the declaration made by the Parliament as to the essential character of the commodity and (3) that it could be, but was not, reserved for the President 's consideration and assent. It was obvious, therefore, that a subsequent Parliamentary 925 declaration could not affect the validity of an enactment retrospectively. Sardar Soma Singh vs The State of Pepsu and Union of India, ; and Firm of A. 'Gowrishankar vs Sales Tax Officer, Secunderabad, A. I. R. , referred to. Although the Art, tinder which the impugned notification was made, satisfied the first condition, it did not satisfy the second or the third and, consequently, its validity could not be questioned under article 286(3) of the Constitution. Held, further, that it was apparent from section 3 of the Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act, 1952, that if a law had been passed prior to the commencement of the Act authorising the imposition of a tax its validity could not be challenged on the ground that the said commodity was subsequently declared by the Act to be essential for the life of the community. The impugned notification and the State Act under which it was made were, therefore, outside the purview of section 3 of the Act.

In W. P. No. 92 of 1969, the Petitioner Company prayed for issue of appropriate direction or order for the enforcement of its fundamental rights guaranteed under article 31(1) of the Constitution. The facts are as follows: The petitioner company was a dealer in non ferrous metals and was a registered supplier to the Directorate General of Supplies and Disposals. The company was also a registered dealer in the State of West Bengal. The petitioner used to procure non ferrous metals from various countries and also from within the country for fulfilling its contracts with D.G.S. & D. The import of non ferrous metals was under open General licence till June, 30, 1957. Thereafter, a licensing system was introduced by the Government of India and the petitioner was asked to get their quotas fixed on the basis of their past imports. On April 2, 1958, the Government of India promulgated the Non ferrous Metals Control Order, 1958 by virtue of which free sale of copper was banned. Any import of copper by the licence holders was to be distributed under the directions of the Controller of Non ferrous metals. Under the Non ferrous Metals Control Order, 1958, and also under the Import Trade Regulations, the established importers were not free to sell the metals imported by them against their quota licences even to D.G.S.& D. The petitioner, in order to effect supplies to D.G.S. & D. had to obtain additional import licence. The petitioner obtained quota licences for import of non ferrous metals for the licensing periods upto April 1964, March 1965; but the imports were to be distributed only under the directions of the Controller. On Sept. 14, 1965, the Govt. of India promulgated the Scarce Industrial Materials Control Order 1965, under the Defence of India Rules. Stocks of non ferrous metals including incoming imports were thus frozen. The Non ferrous Metals Control Order 1958 and the Scarce Industrial Materials Control Order 1965 were both repealed. The Government of India in placing orders with the petitioner used to grant import licences in terms of the contract. The petitioner had been importing and supplying non ferrous metals to respondents 1,2 and 3 during the last 19 years. Respondent No. 2 had agreed to pay and was paying the Central Sales Tax and/or West Bengal Sales Tax, whichever was applicable to the petitioners in terms of the contract. In 1966, the Supreme Court held in K. G. khosla and Co. vs Deputy Commissioner of Commercial tax ; that the sale by Khosla & Co. to DGS & D in India of axle box bodies manufactured in Belgium by their principal, occasioned the movement of goods in the course of import and sales tax was not exigible on the transaction in view of Sec. 5(2) of the , and article 286 of the Constitution. Thereafter, respondent No. 2 issued an order to respondent No. 4 that Sales Tax should not be allowed in respect of supply of stores which had been specifically 620 imported against contracts placed by D.G.S. & D. Respondent No. 4, acting in terms of the order, deducted Rs. 60,780/ being the Sales Tax already paid from the pending bills of the petitioner and also threatened to recover more than Rs. 2 lakhs being the amount paid by respondent No. 2 as Sales Tax in respect of contracts which had already been executed. The petitioner, thereafter, approached the Sales Tax Authorities in W. Bengal and filed revised returns in the pending assessments and claimed refund of taxes paid on the sales, treating the sales as having been made in the course of import on the basis of the judgment in Khosla 's case. The West Bengal Sales Tax Authorities took the view that there were two sales one, to the petitioner by the foreign seller and the other, by the petitioner to D.G.S. & D. and that there was no privity of contract between D.G.S. & D. and the foreign sellers, that the petitioner under the import licences granted to it, was entitled to import the goods from any person or country and that the import licences issued as against the contracts with the Directorate General of Supplies & Disposals imposed ,no obligation on the petitioner to supply the goods to the D.G.S. & D after they had been imported, they therefore, held that tax was exigible on the sales by. the petitioner to the D.G.S. & D. The questions which arose for consideration were: (i) whether on the basis of the order, respondent No.4 was entitled to deduct Rs. 60,780 from the amount due to the petitioner and (ii) Whether the claim of the respondent to recover a further sum of more than Rs. 2 lakhs from the petitioner was justified. The petitioner contended that the sales which the Company made to D.G.S. & D. were not the sales which occasioned movement of any goods in the course of import as those sales were separate and distinct from the contracts of purchase made by the Company with the foreign sellers which alone occasioned the movement of goods in the course of import, tax was exigible upon the sales by the petitioner to D.G.S & D. and therefore, the decision in Khosla 's Case has no application to the facts here. Allowing the writ petitions, HELD : (i) article 286(1) (b) provided that no law of a State shall impose a tax on the sale or purchase of goods where such sale or purchase takes place in the course of the import or export of the goods in India. A sale by export involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea and that such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale or resultant export from parts of a single transaction of these two integrated activities which together constituted an export sale, whichever occurs first can well be regarded as taking place in the course of the other. [623H] State of Travancore Cochin and Ors. vs The Bombay Co. Ltd. ; 12, referred to (ii) The words, 'Integrated activities ' were used in the earlier case to denote that such a sale ' (i.e. a sale which occasions the export) ' cannot be dissociated from the export without which it cannot be effectuated, and the sale and the resultant export form parts of a single transaction ', and in that case the sale and the export were said to be integrated. [624B] per Patanjali Sastri C.J. in State of Travancore Cochin and Ors. vs Shamugha Vilas Cashew Nut Factory and Ors. ; referred to . (iii) There was no definition of the expression 'in the course of import ' before the Sixth Amendment of the Constitution. Later Parliament gave legislative meaning to the expression in section 5(2, of the which provides that a sale or purchase of goods in the course of the import into India, shall be deemed to take place if the sale or purchase either occasions such import or is effected by a transfer of documents of title before the goods have crossed the customs frontiers of India. [624C] 621 (iv) In the present case, the petitioner as principal made the sale to the D.G.S. & D. 'For effecting the sales, the petitioner had to purchase goods from foreign sellers and it was these purchases from the foreign sellers which occasioned the movement of goods in the course of imports. In other words, the movement of goods was occasioned by the contracts for the purchase, which the petitioner entered into with the foreign sellers. No movement of goods in the course of import took place in pursuance to the contracts of sales made by the petitioner with the D.G.S. & D. The petitioner 's sales to D.G.S. & D. were distinct and separate from his purchases from foreign sellers. There was no privity of contract between the D.G.S. & D. and the foreign sellers. The foreign sellers did not enter into a contract by themselves or through the agency of the petitioner to the D.G.S.& D. and the movement of goods through foreign countries was not occasioned on account of the sales by the petitioner to D.G.S. & D. Even if the contracts between the petitioner and the D.G.S. & D. envisaged the import of goods, and their supply to the D.G.S. & D. from out of the goods imported, it did not follow that the movement of the goods in the course of import was occasioned by the contracts of sale by the petitioner with the D.G.S. & D. The present case, therefore, cannot be distinguished from the decision in the Coffee Board 's case though that case was concerned with the question when a sale occasioned the movement of goods in the course of export. The order issued by respondent No. 2, was, therefore, quashed. , [627E 628E]

The Constitutional validity of similar provisions in the States of Kerala and Tamil Nadu which result in imposition of Sales Tax on cooked food sold only in luxury hotels while exempting the same from sales tax in modest eating houses was challenged by some hoteliers in both States on the ground that this amounted to hostile discrimination and therefore violative of Article 14 of the Constitution. While the Kerala High Court rejected the challenge, the High Court of Madras upheld it. Consequently one set of appeals and a Writ Petition under Article 32 of the Constitution have been preferred by the unsuccessful hoteliers of Kerala and the other set of appeals by the State of Tamil Nadu against the decision of the Madras High Court allowing the Writ Peti tions filed before it by the hoteliers. Upholding the constitutional validity of the impugned provisions in both States, while dismissing the appeals and Writ Petition filed by the hoteliers and allowing the ap peals by the State of Tamil Nadu, this Court, HELD: It is the substance and not form alone which must be seen. The difference in the cooked food classified dif ferently, taxed and taxfree, is as intelligible and real as the two types of customers to whom they are served at these different eating houses. This difference must also be avail able to support the difference in the incidence of the impugned sales tax. This classification does bear rational nexus with the 517 object sought to be achieved. The object clearly is to raise the needed revenue from this source, determined by the fiscal policy, which can be achieved by taxing sale of costly food on the affluent alone in the society. The clas sification is made by grouping together only those places where costly food is sold leaving out the comparatively modest ones. The classification is, therefore, rounded on intelligible differentia and has a rational nexus with the object sought to be achieved. In other words, those grouped together possess a common characteristic justifying their inclusion in the group, but distinguishing them from those excluded; and performance of this exercise bears a rational nexus with the reason for the exercise. [526B D] The scope for classification permitted in taxation is greater and unless the classification made can be termed to be palpably arbitrary, it must be left to the legislative wisdom to choose the yardstick for classification, in the background of the fiscal policy of the State to promote economic equality as well. It cannot be doubted that if the classification is made with the object of taxing only the economically stronger while leaving out the economically weaker sections of society, that would be a good reason to uphold the classification if it does not otherwise offend any of the accepted norms of valid classification under the equality clause. [526F G] The predominant object is to tax sale of cooked food to the minimum extent possible, since it is a vital need for sustenance. Those who can afford the costlier cooked food, being more affluent, would find the burden lighter. This object cannot be faulted on principle and is, indeed, laud able. In addition, the course adopted has the result of taxing fewer people who are more affluent in the society for raising the needed revenue with the added advantage of greater administrative convenience since it involves dealing with fewer eating houses which are easier to locate. This accords with the principle of promoting economic equality in the society which must, undoubtedly, govern formulation of the fiscal policy of the State. [532G H] The classification is made in the present case to bring within the tax next hotels or eating houses of the higher status excluding therefrom the more modest ones. A rational nexus exists of this classification with the object for which it is made ,and the classification is rounded on intelligible differentia. This being a relevant basis of classification related to the avowed object, the legislature having chosen an existing classification instead of resort ing to a fresh method of classification, it cannot be a ground of invalidity even assuming there are other better 518 modes of permissible classification. The classification made under the impugned provisions is neither discriminatory nor arbitrary. [533F G; 534B] Ganga Sugar Corporation Limited vs State of Uttar Pra desh & Ors. ; , ; M/s section Kodar vs State of Kerala, ; ; P.H. Ashwathanarayana Setty & Ors. vs State of Karnataka & Ors. , [1989] Suppl. 1 SCC 696; ITO vs K.N. Takim Roy Rymbai; Federation of Hotel and Res taurant Association of India & Ors. vs Union of India & Ors. , ; A.R. Krishna lyer & Ors. vs State of Madras, [1956] 7 STC 346; Kadiyala Chandrayya vs The State of Andhra, [1957] 8 STC 33 and Budhan Chowdhary vs State of Bihar; , , referred to.

By Notifications issued by the State Government under section 5 of the Madhya Bharat Sales Tax Act 1950 sales tax was imposed and collected from the appellants. They filed suits, for refund of the tax on the ground that it was illegally collected from them being against the constitutional prohibition in article 301 and not saved under article 304(a). In Bhailal vs State of M.P. (1960) M.P.L.J. 6011, the petitioner therein challenged in a writ petition, the levy of sales tax on the same grounds and the High Court declared the notifications to be offensive to article 301 and held that ,the imposition of tax was illegal. Following that decision, the trial court decreed the suits filed by the appellants. In appeal before the High Court it was conceded by the State that the tax could not be imposed in view of article 301, but it was contended that the suits were not maintainable in view of section 17 of the Act which provides that no assessment made under the Act shall be called in question in any court. The High Court held that the suits were incompetent. In appeal to this Court, HELD: The suits were maintainable. [684 D] An enquiry into the diverse views expressed in the decisions of this Court shows that an exclusion of the jurisdiction of civil court is not readily to be inferred unless the following conditions apply : (1) Where the statute gives a finality to the orders of the special tribunals the civil court 's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. [682 A C; 683 C] Secretary of State vs Mask [1940] L.R. 67 I.A. 222; Firm Illuri Subbayya Chetty & Sons vs State of Andhra Pradesh, ; and Kerala vs Ramaswami Iyer and Sons, ; In Firm Illuri Subbayya Chetty & Sons ' case the assessee conceded that the tax was payable and did not raise the issue before the appellate authorities under the Act. The suit for refund of tax was held not maintainable on those special facts, with reference to the addition of section 18A excluding the jurisdiction of civil court and the special remedies provided in sections 12A to 12D in the Madras General Sales Tax Act, 1939. This Court, however, did not think it necessary to pronounce any opinion on the Judicial Committee 's view in the Raleigh Investment Co. case [1947] L.R. 74 I.A. 50) that even the vires of the provisions could be considered by the Tribunals constituted under the Act. Dealing with Mask & Co. 's case, it was pointed out that non compliance with the provisions of the statute meant non compliance with such fundamental 663 provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. [679 G H; 680 B D] (2) Where there is an express bar of the jurisdiction of the an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. [682 D] Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. [682 D F] In Provincial Government vs J. section Basappa, [1964] 5 S.C.R. 517 it was held that the civil court had jurisdiction because, at the relevant time, (a) the Madras General Sales Tax Act, 1939, did not have section 18A (which was introduced later barring the jurisdiction of civil court) (b). the Act did not have the elaborate machinery for adequate remedy which was also introduced later, and (c) the tax was illegally collected ignoring the fundamental provisions of the Act. Therefore, the observation in Kerala vs Ramaswami Iyer & Sons that Basappa 's case was wrongly decided is open to doubt. [678 D, H] M/s. Kamala Mills Ltd. vs State of Bombay, [1966] 1 S.C.R. 64 was a decision of a Special Bench holding that section 20 of the Bombay Sales Tax Act 1946 excluded the jurisdiction of the civil court in suits for refund of tax, in cases, where the decision of the authorities under the Act was merely an error in assessment capable of correction by the usual pro cedure of appeals etc. But the Bench observed, that in such cases, where the jurisdiction of the civil court is barred by providing an adequate machinery in the Act, it becomes 'pertinent to enquire whether remedies normally associated with actions in civil court are prescribed by the statute or not ', and thus expressly left open the question as to how far the bar would operate in cases where the charging provision is ultra vires. [681 A B, G . 684 C D] (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Eve,, the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. [682 F G] K. section Venkataraman vs State of Madras, [1966] 2 S.C.R. 229; Deputy Commercial Tax Officer, Madras vs Rayalaseema Constructions, 17 S.T.C. 505; Circo 's Coffee Co. vs State of Mysore, 19 S.T.C. 66 (S.C.); C. T. Senthulnathan Chettiar vs Madras, (C.A. 1045 of 1966. dated 20th July, 1967) and Pabojan Tea Co. Ltd. vs Dy. Commissioner, Lakhimpur, ; ; (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. [682 G H] In State of M.P. vs Bhailal, ; which confirmed the decision in this Court upheld the order of refund by the High Court in its writ jurisdiction held that in cases where a defence of limitation was open or other facts had to be decided, the order of 664 refund was not proper, and accepted the proposition that a suit lay in ' such cases without adverting to, the provisions of the Act to see whether the jurisdiction of civil court was barred either expressly or by necessary implication. Therefore, this case cannot be an authority for holding that the civil court has jurisdiction to entertain such suits. [668] (5) Where the particular Act contains no machinery for refund of,, tax collected in excess of constitutional limits or illegally collected a suit lies. [683 A] Bharat Kala Bhandar Ltd. vs Municipal Council, Dhamangaon, ; (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit,does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry. [6 83 B] In the present case, though the Madhya Bharat Sales Tax Act contains ,Provisions for appeal, revision, rectification and reference to the High ,Court, the notifications having been rightly declared void in the earlier decision of the High Court, the appellants could take advantage of the fact that tax was levied without a complete charging section. Since the tax authorities could not even proceed to assess the party their jurisdiction was affected and the case fell within categories (3) and (4) above, ,and not in category (2). [684 A C]

Appeal No. 283 of 1960. Appeal from the judgment and decree dated, November 20, 1958, of the Allahabad High Court (Lucknow Bench) in First Civil Appeal No. 3 of 1956. C. B. Agarwala and C. P. Lal, for the appellant. R. Ganapathy Iyer and T. M. Sen, for the respondent. March 16. The Judgment of the Court was delivered by DAs GUPTA, J. The appellant, a clerk in the service of the East Indian Railways was compulsorily ' retired from service with effect from June 30, 1948, on attaining the age of 55 years. His prayer for further retention in service on the ground that he was entitled to be retained under Rule 2046/2 of the Railway Establishment Code having been rejected he brought the suit which has given rise to this appeal in the court of the Civil Judge, Lucknow, alleging that he was entitled to be retained under the above rule, and the order for compulsory retirement on attaining the age of 55 years was. void and inoperative in law. He accordingly prayed for a declaratory decree that the order of his compulsory retirement was illegal and void and for a money decree for, arrears of pay on the basis that he had continued in service. The main defence was a denial of his right to be retained in service under the rules. The Trial Court accepted the plaintiff 's contention ' as regards the effect; of the rule, gave him a declaration as prayed for and ' also decreed the claim for money in part. On appeal the High Court took a different view of Rule 2046 and held that that rule gave the plaintiff no right to continue in service beyond the age of 55 years. The High Court therefore allowed the appeal. and dismissed the plaintiffs suit. Against this decision the 376 plaintiff has preferred the present appeal on a certificate granted by the High Court under article 133(1) (c) of the Constitution. The main question therefore is whether on a proper interpretation of Rule 2046/2 (a) of the Railway Esta blishment Code, which is identical with the fundamental rule 56 (b) (i), the plaintiff had the hight to be retained in service till the age of 60 years. It is necessary to mention that the plaintiff 's case that he continued to be efficient even after attaining the age of 55 years has not been disputed by the respondent, the Union of India. Consequently the question is: assuming the plaintiff so 'continued to be efficient whether he had the right to be retained in service till he attained the age of 60 years. Rule 2046 (1) of the Code deals with the question of retirement of railway servants other than ministerial and provides that such Railway servant, that is, one who is not a ministerial servant, will be compulsorily retired on attaining the age of 55 years; but may be retained in service after that date "with the sanction of the competent authority on public grounds" which must be recorded in writing. A further provision is made that he must not be retained after the age of 60 years except in very special circumstances. Rule 2046/2 deals with cases of ministerial servants. It has two clauses of which ol. (b) deals with (i) ministerial servants who entered Government service on or after April 1, 1938, or (ii) who though in Government service on March 31, 1938, did not hold a lien or a suspended lien on a permanent post on that date. These also, like the Railway servants, who are not ministerial servants have to retire ordinarily at the age of 55 years and cannont be, retained after that age except on public grounds to be recorded in writing and with the sanction of the competent authority; and must not be retained after attaining the age of 60 years except in very special circumstances. Clause (a) deals with railway ministerial servants other than those who entered Government service on or after April 1, 1938, or those in Government service on March 31, 1938, who, did not hold a lien or a 377 suspended lien on a permanent post on that date. The exact words of the rule are: "A ministerial servant who is not governed by sub cl. (b) may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years. He must not be retained after that age except in very special circumstances which must be recorded in writing and with 'the sanction of the competent authority. " It is obvious that the rule as regards compulsory retirement is more favourable to ministerial servants who fall within el. (a) of rule 2046/2 than those who fall under el. (b) of the same rule or railway servants who are not ministerial servants. For whereas in the case of these, viz., railway servants Who are not ministerial servants, and ministerial servants under cl. (b) retention after the age of 55 itself is intended to be exceptional to be made on public grounds which must be recorded in writing and with the sanction of the competent authority, in the case of ministerial servants who fall under cl. (a) of Rule 2046/2 their retention after the age of 60 is treated as exceptional and to be made in a similar manner as retention in the case of the other railway servants mentioned above after the age of 55. It is clear therefore that whereas the authority appropriate to make the order of compulsory retirement or of retention is given, no discretion by itself to ' retain a ministerial railway servant under cl. (b) if he attains the age of 55 years, that is not the position as regards the ministerial servants who fall under cl. The appellant 's contention however goes very Much further. He contends that in the case of ministerial servants who come within cl. (a) and after attaining the age of 55 years continue to be efficient it is not even a case of discretion of the appropriate authority to retain him or not but that such ministerial servants have got a right to be retained and the appropriate authority is bound to retain him, if efficient. The first clause of the first sentence of the relevant 48 378 rule taken by itself certainly gives the appropriate authority the right to require a ministerial servant to retire as soon as he attains the age of 55 years. The question is: Whether this right is cut down by the second clause, viz., "but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years". On behalf of the appellant it is urged that the very use of the conjunction "but" is for the definite purpose of the cutting down of the right conferred by the first clause; and that the effect of the second clause is that the right to require the Government servant to retire at 55 is limited only to cases where he does not retain his efficiency; but where he does retain his efficiency the right to retire him is only when he attains the age of 60 years. We are con strained to say that the language used in this rule is unnecessarily involved; but at the same time it is reasonably clear that the defect in the language creates no doubt as regards the intention of the rulemaking authority. That intention, in our opinion, is that the right conferred by the first part is not in any way limited or cut down by the second part of the sentence; but the draftsman has thought fit by inserting the second clause to give to the appropriate authority an option to retain the servant for five years more, subject to the condition that he continues to be efficient. If this condition is not satisfied the appropriate authority has no option to retain the servant; where however the condition is satisfied the appropriate authority has the option to do so but is not bound to exercise the option. If the intention had been to out down the right conferred on the authority to retire a servant at the age of 55 years the proper language to express such intention would have been may be required to retire at the age of 55 years provided however that he shall be retained in service if he continues to be efficient up to the age of 60 years" or some such similar, words. The use of "should ordinarily be retained in service" is sufficient index to the mind of the rule making authority that the right conferred by the first clause of the sentence remained. Leaving out for the present the word "ordinarily" the rule would read thus: 379 "A ministerial servant who is not governed by sub clause (b) may be required to retire at the age of 55 years but should be retained in service if he continues to be efficient up to the age of 60 years. " Reading these words without the word "ordinarily" we find it unreasonable to think that it indicates any intention to cut down at all the right to require the servant to retire at the age of 55 years or to create in the servant any right to continue beyond the age of 55 years if he continues to be efficient. They are much more appropriate to express the intention that as soon as the age of 55 years is reached the appropriate authority has the right to require the servant to retire but that between the age of 55 and 60 the appropriate authority is given the option to retain the servant but is not bound to do so. This intention is made even more clear and beyond, doubt by the use of the word "ordinarily". "Ordinarily" means "in the large majority of cases but not invariably". This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues: to be efficient. The intention of the second clause 1 therefore clearly is that while under the first clause the appropriate authority has the right to route the ' servant who falls within clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further Period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he "should" retain the servant; but, what are special circumstances is loft entirely to the authority 's decision. Thus, after the age of 55 is reached by the servant the authority has to exercise ' its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if, he continues to be efficient. Reliance was placed by learned counsel on an observation of Mukherjea, J. (as he then was), in Jai 380 Ram vs Union of India (1) when speaking for the Court as regards this rule his Lordship said: "We think it is a possible view to take upon the language of this rule that a ministerial servant coming within the purview has normally the right to be retained in service till he reaches the age of 60. This is conditional undoubtedly upon his continuing to be efficient. We may assume therefore for purposes of this case that the plaintiff had the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency. " It would be wholly unreasonable however to consider this as a decision on the question of what this rule means. Dealing with an argument that as the plaintiff under this rule has the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency certain results follow, the Court assumed for the sake of argument that this interpretation was possible and proceeded to deal with the learned counsel 's argument on that basis. It was not intended to say that this was the correct interpretation that should be put on the words of the rule. The correct interpretation of Rule 2046 (2) (a) of the code, in our opinion, is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 60 the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if a servant continues to be efficient. It may be mentioned that this interpretation of the rule has been adopted by several High Courts in India ' [Basant Kumar Pal vs The Chief Electrical Engineer Kishan Dayal vs General Manager, Northern Railway and Raghunath Narain Mathur vs Union of India (4)]. We therefore hold that the High Court was right in holding that this rule gave the plaintiff no right to continue in service beyond the age of 55. (1) A.I.R. 1954 S.C. 584. (3) A.I.R. 1954 Punj. (2) A.I.R. 1956 Cal. (4) A.I.R. 1953 All. 381 It was next urged by Mr. Aggarwal, though faintly, that the notification of the Railway Board dated October 19, 1948, and the further notification dated April 15, 1952, as a result of which ministerial servants who were retired under rule 2046(2)(a) before attaining the age of 60 after September 8, 1948, have been given special treatment are discriminatory. It appears that on September 8, 1948, the Government of India came to a decision that no ministerial Government servant to whom the fundamental rule 56(b)(i) applied and who has attained the age of 55 years but has not attained the age of 60 years could be required to retire from service unless he has been given a reasonable opportunity to show cause against the proposed retirement and unless any representation that he may desire to make in this connection has been duly considered. This decision was communicated to different departments of the Government of India and it was directed that this should be noted "for future guidance". On October 19, 1948, the Ministry of Railways issued a notification for dealing with cases of retirement of ministerial servants governed by Rule 2046(2)(a) (which corresponded to fundamental rule 56(b)(1) in the manner as directed by the Government of India 's notification dated September 8, 1948. This notification of October 19, 1948, again made it clear that it had been decided not to take any action in respect of ministerial servants who had already been retired. Again, in a notification dated April 15, 1952, the Railway Board communicated a decision that "such of the ministerial servants who had been retired after 8th September, 1948, but before attaining the age of 60 years without complying with article 311 (2) of the Constitution should be taken back to duty" under certain conditions. The appellant 's contention is that the denial of this advantage given to other ministerial servants falling within rule 2046(2)(a) who had been retired after September 8, 1948, is unconstitutional. We do not think that this contention has any substance. What happened was that on September 8,1948, the Government took a decision that ministerial servants should 382 not be retired under the rule in question on attainment of 55 years of age if they were efficient without giving them an opportunity of showing cause against the action and accordingly from that date it changed its procedure as regards the exercise of the option to retire servants between the age of 55 and 60. The decision that nothing should be done as regards those who had already retired on that date cannot be said to have been arbitrarily made. The formation of a different class of those who retired after September 8, 1948, from those who had retired before that date on which the decision was taken is a reasonable classification and does not offend article 14 of the Constitution. This contention is therefore also rejected. The High Court was therefore right in our opinion in holding that there was a reasonable classification of the ministerial servants who had been retired under Rule 2046 (2) (a) on attaining the age of 55 into two classes: one class consisting of those who had been retired after September 8, 1948, and the other consisting of those who retired up to September 8, 1948. There is, therefore, no denial of equal protection of laws guaranteed by article 14 of the Constitution. In the result, the appeal fails and is dismissed. There will be no order as to costs, as the appellant is a pauper. We make no order under Order XIV, rule 9 of the Supreme Court Rules. Appeal dismissed.

The appellant who was a clerk under the East Indian Railways was compulsorily retired from service on attaining the age of 55 years. His prayer for further retention in service having been rejected he filed a suit alleging that he was entitled to be retained in service up to the age of 60 years under Rule 2046 (2)(a) of the Railway Establishment Code, which runs as follows: "Clause (a) A ministerial servant who is not governed by sub cl. (b) may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years. He must not be retained after that age except in very special circumstances which must be recorded in writing and with the sanction of the competent authority. " His suit was decreed by the Trial Court but the High Court reversed it holding that the plaintiff appellant had no right to continue in service beyond the age of 55 years. On appeal with the certificate of the High Court. Held, that the correct interpretation of Rule 2046(2)(a) is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 6o years the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if he continues to be efficient. This rule does not give the servant a right to be retained in service beyond the age of 55 years even if he continues to be efficient. jai Ram vs Union of India, A.I.R. 1954 S.C. 584, explained. Basant Kumar Pat vs The Chief Electrical Engineer, A.I.R. , Kishan Dayal vs General Manager, Northern Railway, A.I.R. 1954 Punj. 245 and Raghunath Narain Mathur vs Union of India, A.I.R. 1953 All. 352, approved. 375 The formation by the Railway Board of two classes of ministerial servants, namely, one of, those who retired after September 8, 1948, and the other of those who had already retired before that date was a reasonable classification and (lid not offend article 14 of the Constitution.

The appellant filed a suit for recovery of certain properties from the respondents. The suit was decreed by the trial court The respondents appealed to the High Court, but pending the appeal, the appellant, in execution of the decree of the trial court, obtained possession of the suit properties and recovered the costs awarded. Only July 13, 1949, the High Court set aside the decree of the trial court, and on August 24, 1950, the appellate decree was amended by deleting the name of one of the decree holders from the decree. The respondents filed two applications one on February 11, 1953 for costs and the other on February 13, 1953 for restitution of the properties and costs paid, under section 144 of the Civil Procedure Code, 1908. The trial court ordered execution to proceed and on appeal the High Court confirmed the order. In the appeal to the Supreme Court, it was contended that: (i) the application for recovery of costs was barred by limitation under article 182 of the Limitation Act, 1908, as it was filed beyond 3 years from the date of the appellate decree and (ii) the application for restitution was not an application for execution and was therefore governed by article 181 of the Limitation Act; and as the period of limitation of 3 years under that article, starts from the date when the right to apply accrues the application for restitution was also barred by limitation. HELD (by Full Court): (i) The execution application for the recovery of costs was within time. [439 E; 455 H] By the amendment of August 24, 1950, the name of one of the decree holders was struck out from the decree and the result was, to that, extent, the rights of the parties were modified by the amended decree. it was therefore. a case where the decree has been amended within the meaning of article 132(4) of the Limitation Act, and the application for execution could be filed within 3 years from the date of the amendment. [455 G] (ii) (Per Subba Rao, Raghubar Dayal, Rajagopal Ayyangar and Mudholkar JJ.) : On a fair construction of the provisions of section 144 of the Code, an application for restitution must be held to be one for execution of a decree, and having been filed within 3 years from the date of the amended decree was within time. [455 B, H] Having regard to the history of the section, there is no reason why such an application should not be treated as one for execution of the appellate decree. The object of the section is to make the scope of restitution clear and unambiguous. It does not say that an application for restitution, which till the Code of 1908 was enacted was an application for execution, should be treated as an original petition. Whether an application is one for execution of a decree or in an original application depends upon the nature of the application and the relief asked for. When a party, who lost his property in execution of a decree, seeks to recover it back by 437 reason of the appellate decree in his favour, he is not initiating any original proceeding but is concerned only with the working out of the appellate decree in his favour. [450 E H; 451 A] it would be inconsistent to hold that an application for restitution would be an original petition, if the appellate decree did not give a direction for restitution, and that it would be an execution application if it did. Such an inconsistency could be avoided if a direction for restitution were implied in every appellate decree setting aside or modifying the decree of the lower court. [451 C E] The existence of section 47 in the Code would make section 144 redundant. The latter section was enacted to prescribe the procedure, define the powers of the court and expressly bar the maintainability of a suit in respect of a relief obtainable under it. [451 E, G] The fact that the section has been placed in the "Miscellaneous" part of the Code for convenience of arrangement, cannot affect the question if in reality the application for restitution is one for execution : at the most it is only one of the circumstances relevant to the enquiry and it is not decisive. [452 D E] Merely because, under section 144, the application has to be filed in "the court of first instance" and under section 38, a decree may be executed both by "the Court which passed if ' or by "the court to which it is sent for execution. " an application under section 144, does not ease to be one for execution. For under section 37, the expression "Court which passed a decree" includes the "Court of first instance", when the decree to be executed has been passed in the exercise of appellate jurisdiction. [452 E G] If an execution application to which section 47 applies does not cease to be an execution application by reason of the section being included in the definition of a "decree" under a. 2(2), an execution application under section 144 cannot likewise cease to be one for the reason that the said section is included in the definition of decree. The two sections were included only for the purpose of giving a right of appeal. [453 C D] To construe an application for restitution as not one for execution would lead to anomalies specially under sections 6, 7 And 15 of the Lemitation Act. The existence of anomalies may have no relevance when a provision of a statute is clear and unambiguous, but will certainly have a bearing when the section is ambiguous. Further, in a procedural matter pertaining to execution when a section yields to two conflicting constructions, the court should adopt a construction which maintains rather their disturbs the equilibrium in the field of execution. [453 H; 454 A, F] Per Sarkar J. (dissenting) : The application under section 144 is not one in execution and therefore would not be governed by article 182 of the Limitation Act but by article 181. Since, under article 181 time starts to Tun from the date the right to apply accrues and the period provided is three years, the application for restitution would be barred. [442 D F] Apart from the fact that the application is not described as one in execution the provision in the section for the making of an order for the purpose of effecting restitution would lead to the conclusion that it is this order that is to be executed for obtaining restitution; and therefore the earlier application resulting in such order, could not be one for execution. [440 D E] if the application under section 144 is one for execution, then the pro@ion in the section that no suit shall be instituted for the Purpose of obtaining restitution, and the inclusion of the determination of a question under section 144 within the definition of decree in section 2(2) would be unnecessary because of section 47. The latter ion which relates to questions arising in 438 execution bars a suit to obtain the same relief, and the determination of any question under that section is included within the definition of decree. [440 F H] Further, under a. 144, the application has to be made to "the Court of first instance" and not to a transferee court, whereas, under sections 38 and 39 and OXXI, r. 10, the holder of a decree desiring to execute it shall apply to the court to which the decree has been sent for execution. [441 A C] While the section 583 of the Code of 1882, expressly provided that restitution would be by way of execution, section 144 of the Code of 1908, deliberately omits reference to execution. This departure in the terminology used, would tend to the view that it was intended that the procedure under the new section would not be by way of execution. [441 F G] If the language of the section by itself clearly indicates that the procedure is not to be by way of execution, it would not be legitimate to interpret the section in a different way because of the deprivation of the benefits under sections 6, 7 and 15 of the Limitation Act. [442 B] It cannot be said that the right to apply for restitution accrued when the appellate decree was amended, for under section 9 of the Limitation Act, case began to run from the date of the appellate decree, when the right to apply first accrued. [442 H]

The appellant 's four children, the respondents in the appeal, two of whom were majors and two were minors, filed an application under section 488 of the Criminal Procedure Code in September, 1963 for an order requiring the appellant to pay them maintenance. The Trial Court allowed the application and fixed the monthly amounts to be paid as maintenance to each of the children. The appellant 's revision application was dismissed but one filed by the respondents was allowed whereby the Additional Sessions Judge submitted the case to the High Court with recommendations to enhance the maintenance allowance. The High Court accepted, the reference and thereafter, on an application by the appellant granted a certificate under article 134(1)(c) for an appeal to this Court. It was contended on behalf of the appellant that (i) section 488 Cr. P.C. was impliedly repealed by section 4 of the Hindu Adoptions and Maintenance Act 78 1956 insofar as it applied to Hindus; (ii) that the word "child" in section 488 means a minor; and (iii) that the maintenance fixed for two of the major children was based on wrong principles and was excessive inasmuch as expenses for education had been taken into consideration. HELD : Dismissing the appeal : (i)There was no inconsistency between Act 78 of 1956 and section 488 Cr. P.C. Both could stand together. The Act of 1956 is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. The law was substantially similar before when it was never suggested that there was any inconsistency with section 488 Cr. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. [568 A B] Ram Singh vs State, A.I.R. 1963 All. 355; Mahabir Agarwalla vs Gita Roy, ; and Nalini Ranjan vs Kiran Rani, A.T.R. 1965 Pat. 442; approved. (ii)The word "child" in section 488 does not mean a minor son or daughter and the deal limitation is contained in the expression "unable to maintain itself". If the concept of majority is imported into the section, a major child who is an imbecile or otherwise handicapped will fall outside the purview of this section. If this concept is not imported, no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself. The older a person becomes the more difficult it would, be to prove that he is unable to maintain himself. [569 F H] 566 Shaikh Ahmad Shaikh Mahommad vs Ba Fatma, I.L.R. [1943] Bom. 38, 40; Jagir Kaur vs Jaswant Sinqh ; , 84; in the matter of the Petition of W.B. Todd, (1873) 5 N.W.P. High Court Reports 237; and Bhagat Singh vs Emperor, 6 I.C. 960; referred to. Purnasashi Devi vs Nagendra Nath, A.I.R. 1950 Cal. 465; and State vs Ishwarlal, I.L.R. ; approved. Amiritliammal vs Marimuthu, A.I.R. 1967 Mad. 77; disapproved. (iii)While it was not necessary to decide whether expenses for education can be given under section 488, in the present case, the Court below were right in taking into consideration the situation at the time of passing the order i.e. that the two major children were college students. [570 G H]

The respondent was working as an Executive Engineer in the Hyderabad State. In 1955, the Public Service Commission recommended that: he should be stopped from crossing the efficiency bar with effect from February 9, 1952; and (2) a sum of Rs. 23,371 should be recovered from his salary on account of loss caused to the Government by his negligence. On November 1, 1956 the States Reorganisation Act came into force ,red the respondent was allotted to the appellant State. Even after the respondent completed the age of 55 years in 1960, he was continued in service by the appellant State, but under suspension pending completion of the; disciplinary proceedings against him, but in 1961, he was permitted 10 retire and all the disciplinary proceedings pending against him were dropped altogether. After his retirement, he filed a writ petition for a declaration that he was stopped from crossing the efficiency bar only because the Government wanted to reimburse itself for the loss caused by the respondent, that consequent upon the dropping ,of the proceedings against him, he should be deemed not to have caused any loss to the Government, and so, to have crossed the efficiency bar on February 9, 1952. and therefore, the increments withheld should be restored and the increased salary should be taken into 'account in fixing his pension. The High Court allowed the petition. In appeal to this Court, HELD: Merely because the disciplinary proceedings against him were dropped for certain reasons it did not automatically follow that the respondent was allowed to cross the efficiency bar. Under the Civil Service Rules in Hyderabad and in Mysore, an express order of the appropriate authority is necessary before an officer was allowed to cross the efficiency bar and no such order was passed in the present case. [161 D F]

The, services of the respondent as an Assistant Traffic Superintendent on the North East Frontier Railway were terminated after one month 's notice under Rule 148 of the Indian Railway Establishment Code with effect from December 2, 1957. An appeal to the General Manager was held not to be competent. On being offered a lower post the respondent accepted it. By letter dated December 31, 1959 he was informed that his representation to the Railway Board had been rejected. On December 5, 1963 this Court in Moti Ram Deka 's case held that Rules 148(3) and 149(3) of the Indian Railway Establishment Code were invalid being violative of article 311(2) of the Constitution. The respondent made a representation in 1964 to the General Manager for reconsideration of his case in the light of the said judgment. The representation was turned down on the ground that the Railway Board had decided to instate only those employees whose services had been terminated in terms of Rules 148/149 within a period of six years prior to the date of the Supreme Court 's judgment. The respondent filed a petition under article 226 of the Constitution which was allowed by the High Court. The General Manager appealed. HELD: The fixing of a period of six years was on the face of it arbitrary and there was no valid or reasonable explanation as to why this limit was fixed by the railway authorities. If the termination of service of an employee in terms of Rule 148 was wholly illegal and void because of violation of article 311(2) of the Constitution, his reinstatement should have followed as a matter of course. The contention that the railway authorities would have found a lot of difficulty and inconvenience in reinstating employees without taking into consideration the period which had elapsed was devoid of merit and could not be accepted. [67 F G] Moti Ram Deka etc. vs General Manager, N.E.F. Railway etc. ; , applied.

This appeal was directed against an order of the Madras High Court issuing a writ of mandamus at the instance of the respondent restraining the appellants from giving effect to two circulars issued by the Railway Board reserving selection posts in Class III of the Railway service in favour of the members of the Scheduled Castes and Scheduled Tribes with retrospective operation. It was urged on behalf of the respondent that the Constitution made a clear distinction between backward classes on the one hand and Scheduled Castes and Scheduled Tribes on the other, and that article 16(4) applied only to reservation of posts at the stage of appointment and not to posts for promotions after appointment and, therefore, the circulars which fell 587 outside the scope of article i6(4) and contravened article i6(1). This was denied by the appellant who pleaded the contrary. The first circular, inter alia, prescribed a quota of reservation for( selection posts and gave retrospective effect to it and the second ' gave guidance and directions as to how the first should be implemented. A subsequent clarification issued by the Board stated that no reversion of staff already promoted to selection posts was contemplated. The High Court held that the expression "backward classes" in article 16(4) included members of the Scheduled Castes and Scheduled Tribes, but that the word ,appointments ' did not denote promotion and the word 'posts ' meant posts outside the civil services and thus the impugned circulars were not covered by article i6(4) and were ultra vires. Held, (per Gajendragadkar, Sarkar, and Das Gupta, JJ.), that the impugned circulars were well within the ambit of article 16(4) Of the Constitution and the appeal must succeed. Articles 16(i) and 16(2) of the Constitution are intended to give effect to article 14 and article 15(1) Of the Constitution and these Articles form parts of the same constitutional code of guarantees and supplement each other. Article 16(i) should, therefore, be construed in a broad and general, and not pedantic and technical way. So construed, "matters relating to employment" cannot mean merely matters prior to the act of appointment nor can 'appointment to any office ' mean merely the initial appointment but must include all matters relating to employment, whether prior or subsequent to the employment, that are either incidental to such employment or form part of its terms and conditions and also include promotion to a selection post. Although Art.16(4), which in substance is an exception to articles 16(1) and 16(2) and should, therefore, be strictly construed, the court cannot in construing it overlook the extreme solicitude shown by the Constitution for the advancement of socially and educationally backward classes of citizens. The scope of article 16(4), though not as extensive as that of article 16(1) and (2), and some of the matters relating to employment such as salary, increment, gratuity, pension and the age of superannuation, must fall outside its non obstante clause, there can be no doubt that it must include appointments and posts in the services. To put a narrower construction on the word 'posts ' would be to defeat the object and the underlying policy ' Article 16(4), therefore, authorises the state to provide for the reservation of appointments as well as selection posts. It is not correct to say that the legislative history of the word 'posts ' shows that it has invariably been used to mean posts outside the services, Neither the relevant provisions of the Constitution nor those of the Constitution Act of 1935 justify such a conclusion. It is the context in which that word is used that must determine its meaning. 588 But in exercising its powers under the Article it should be the duty of the State to harmonise the claims of the backward classes and those of the other employees consistently with the maintenance of an efficient administration as contemplated by article 335 of the Constitution. Per Wanchoo, J. Article 16(4) which is in the nature of an exception or proviso to article 16(1) cannot be allowed to nullify equality of opportunity guaranteed to all citizens by that Article. Article 16(4) implies, as borne out by article 335, that the reservation of appointments or posts for backward classes cannot cover all or even a majority of appointments and posts and the words "not adequately represented", which provide the key to the interpretation of article 16(4), do not convey any idea of quality but mean sufficiency of numerical representation in a particular service, taken not by its grades, but as a whole. Appointments must, therefore, mean initial appointments, and reservation of appointments, the reservation of a percentage of initial appointments. Posts refer to the total number of posts in the service and reservation of posts means reservation of a certain percentage of posts out of total posts in the service. Per Ayyangar, J. Article 16(4), concerned as it is with the right to State employment, has to be read and construed in the light of other provisions relating to services contained in Part XIV of the Constitution and, particularly, article 335. So construed, the word "post" in that Article must mean posts not in the services but posts outside the services. Assuming that was not so, and the word 'posts ' meant posts in the services, the inadequacy of representation sought to be redressed by article 16(4) means quantitative deficiency of representation in a particular service as a whole and not in its grades taken separately, nor in respect of each single post in the service. Read in the light of article 335, article 16(4) can only refer to appointments to the services at the initial stage and not at different stages after the appointment has taken place. Article 16(4) contemplates prospective reservation of appointments and posts and does not authorise retrospective reservation.

Respondent No. 1 obtained a mortgage decree for Rs. 1,14,581/14/6 against one Rao Raja Inder Singh (the judgment debtor). The mortgage money was advanced under three mortgages, and the mortgaged properties consisted of Jagirs and some non Jagir immovable property. The latter property was sold in execution and Rs. 33,750/ paid to the decree holder in partial satisfaction of the decree. Then the decree holder filed an execution petition in the Court of the District Judge for the balance amount i.e. Rs. 99,965/3/6, praying for attachment of the amount of compensation and rehabilitation grant which would be paid to the judgment debtor on account of resumption of his Jagir. The judgmment debtor submitted two applications in which he claimed relief under sections 5 and 7 of the Rajasthan Jagirdars ' Debt Reduction Act. The decree holder, in his reply, to those petitions urged that the provisions relied in were ultra vires the Constitution of India, being in contravention of articles 14, 19 and 31 of the Constitution. Thereafter the decree holder moved a petition under article 228 of the Constitution before the High Court, praying that the execution case pending in the Court of the District Judge, be withdrawn from that court to the High Court. The High Court transferred the case to its file. By its judgment the High Court could held that apart from the later part of section 2(e) excluding certain debts and section 7 (2) of the Act, the rest of the Act was valid. The High Court granted a certificate under article 133(1)(c) of the Constitution to the State of Rajasthan to file an appeal to this Court. Hence the appeal: Held: (i) That the impugned part of section 2(e) infringes article 14 of the Constitution for the reason that no reasonable classification is disclosed for the purpose of sustaining the impugned part of section 2(e). It is now well settled that in order to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentiation which distinguishes persons or things that are to be put together from others left out of the group, and (2) that the differential must have a rational relationship to the object sought to be achieved by the statute in question. The said condition No. 2 above has clearly not been satisfied in this case. The object sought to be achieved by the impugned Act was to reduce the debts secured on the Jagir lands which had been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act. The fact that the debts are owed to a Government or local authority or other bodies mentioned in the impugned part of section (2) (e) has no rational relationship with the object sought to be achieved by the Act. Further, no intelligible principle underlies the exempted categories of debts. The reason why a debt advanced on behalf of a person by the Court of Wards is clubbed with a debt due to a State or a scheduled bank and why a debt due to a non scheduled bank is not excluded from the purview of the Act is not discernible. Manna Lal vs Collector of Jhalwar. ; , Nand Ram Chhotey Lai vs Kishore Raman Singh, A.I.R. (1962) All 521 and 905 Jamnalal Ramlal Kimtee vs Kishendas and State of Hyderabad, A.I.R. (1955) Hyd. 194, distinguished. (ii) Section 7(2) is valid as it imposes reasonable restrictions, in the interests of general public. on the rights of a secured creditor. This sub section has been designed with the object of rehabilitating a Jagirdar whose Jagir properties have been taken over by the State for a public purpose at a low valuation. If this provision was not made, the Jagirdar would find it diffcult to start life afresh because his future income and acquired properties would be liable to attachment and sale for the purpose of satisfying the demands of such creditors.

There was divergence between the appellant 's date of birth as given at the time of his appointment as Judge of the Calcutta High Court and as found in the records of the public examinations at which he had appeared. The Union Home Minister after correspondence with the parties concerned including the Chief Justice of India and the appellant determined the appellants date of birth to be December 27, 1901 as found in the records of the appellant 's Matriculation Examination. The President, by order passed on May 15, 1961, approved the decision and the consequent order that the appellant be asked to emit his office on December 26, 1961 when be would reach the age of superannuation. The Punjab High Court dismissed the appellant 's writ petition challenging the order and the Supreme Court dismissed in limine the petition for special leave to appeal. Pursuant to the orders of the Union Government the Chief Justiceof the Calcutta High Court asked the appellant to demit his office on December 26, 1961, and after that date did not allot him any work. The appellant thereupon filed a writ petition before the Calcutta High Court under article 226 of the Constitution which was dismissed. The Supreme Court granted him special leave to appeal. The appellant in his appeal contended that the age of a Judge given by him at the time of appointment once accepted by Government, could not again be called in question and in any case could not be determined again by the Government by Executive order. The complexion of the controversy the passing of the Constitution by adding cl. (3) to article 217 provided that any dispute as to the ago of a Judge of a High Court would be decided exclusively and finally by the president of India in consultation with the chief justice of India. The Amendment Act also provided that the provision shall be deemed always to have been in the Constitution. The parties agreed that after the retrospective amendment the main question for consideration was whether the order of the Union Government determining the appellant 's age and date of superannuation was an order which could be deemed to have been passed under article 217(3). HELD : (i) If a dispute is raised about the age of a sitting Judge then it is desirable that the matter should be decided by the President. Whether the dispute is genuine or not is to be considered by the President in consultation with the Chief Justice of India. But it is certainly in the interests of the Judge himself, as much as in the interests of the purity and 54 reputation of the administration of justice that the dispute should be settled. it could not be held that the age of a Judge given by him at the time of ,,appointment could never again be called in question. (65 E F] (ii)The Chief Justice of the Calcutta High Court was justified in not allotting any work to the appellant after December 26, 1961, as any judgments delivered by him after the date would have been open to question as to their validity. [66 B C] (iii)The judgment of the Punjab High Court dismissing appellant 's ,writ petition did not operate as res judicata as it was not on merits. [71 A] (iv)Article 217(3) gave to the President exclusive power to determine ,the age of a sitting Judge and divested the courts of jurisdiction in this regard. The procedure to be adopted was in the discretion of the President ,but the provision to formally consult the Chief Justice of India was man Also implicit in the Article, was the requirement that the Judge concerned should have a reasonable opportunity to give his version and 'Produce his evidence. [64 B D] (v)The provision having been expressly made retrospective the appeal had to be decided on the basis that the order passed by the President in the appellant 's case could be treated as a decision under article 217(3), if, on merits, such a conclusion was justified. [65 A] (vi)The order of the Union Government passed on May 15, 1961 did not satisfy the requirements of article 217 (3) and could not be held to be ,an order passed under the provisions of that Article. The decision had been taken by the Home Minister and that plainly was not a decision of the President. The offer to allow the matter to be decided by arbitration, and reopening of the matter after the decision had been taken, cannot be ,easily assimilated to the requirements of the Article. The informality of the consultation with the Chief Justice of India also did not squarely fit, in ,with the formal consultation which is mandatory. [67 B C, G H; 68 A] Srinivas Mail Bairoltva vs King Emperor, I.L.R. 26 Pat. 460 and Alexander Brogden and others vs The Directors of the Metropolitan Rail.way Company , referred to. (vii)The order was also not a proper order under article 217(3) because the requirements of natural justice had not been satisfied inasmuch as the President did not have before him when he made the decision the evidence of the appellant. It is true that the appellant had refused to produce the evidence on the ground that the Executive had no jurisdiction to call into question and determine his age. This contention of the appellant when raised was fully justified as such a dispute in the legal situation which them existed had normally to be determined by judicial proceeding before the High Courts of competent jurisdiction, and therefore his failure or refusal to produce his evidence could not be fairly pressed into. service against 'him. [69 D F; 70 B] The Court held that the appellant was entitled to a decision by the President of India as to his age under article 217(3) and passed orders in terms agreed to by both parties. [71 B F]

Appeal No. 752 of 1957. Appeal from the judgment and decree dated January 8, 1954, of the Madras High Court in Second Appeal No. 312 of 1949. A. V. Viswanatha Sastri and P. V. B. Tatachari, for the appellant. 341 P.Somasundaram and T. Satyanarayana, for the respondents. March 16. The Judgment of the Court was delivered by WANCHOO, J. This appeal on a certificate granted by the Andhra Pradesh High Court raises the question of the interpretation of section 44 B(1) of the Madras, Hindu Religious Endowments Act No. II of 1927 (hereinafter called the Act). The point arises in this way. The property in dispute was originally granted in inam to the ancestors of the predecessors in interest of the plaintiffs respondents for the performance of parak service in the pagodas (temples) of village Panyam in Nandyal Taluk of the Kurnool District. The grantees of the land in this inam alienated a considerable portion of it and also ceased to perform the parak service. In consequence, the trustees of the temples at Panyam applied. to the Sub Collector under section 44 B (2) (a) (i) and (ii) of the Act for the resumption of the lands and their regrant to the temples on the ground that the holders of the inam had alienated the property and had failed to perform the service required of them. An inquiry was conducted into these allegations, and it was held by the Revenue Divisional Officer, Nandyal, that the inam had been granted on the condition of parak service being rendered and that there had been breach of the condition on failure to perform the service and also that the lands comprised in the inam had been alienated in a manner falling within section 44 B (2) (a) (i) of the Act. On these findings the resumption of the inam lands was ordered and the inam was re granted to the temples in Panyam village. The alienees took the matter in appeal to the Collector but failed. Thereupon they filed the suit out of which the present appeal has arisen; and their main contention was that. the revenue authorities had no jurisdiction to order the resumption of the inam under section 44 B. The suit was resisted by the trustees who were defendants to it and their case was that the, inam was a religious service inam in the sense of being emoluments for the performance of service and 342 alternatively that even if the grant was a personal inam, burdened with the performance of parak service, the grant was conditional on the performance of the service and as there was breach of this obligation, the resumption and re grant were justified under section 44 B. Certain preliminary facts are not in dispute now. It has been found by all the courts that the inam grant comprised both the warams. It has also been found that the grant to the inamdar was personal to him though burdened with parak service and not a service inam in the sense of the inam constituting emoluments of any office. On the finding that the inam was a personal inam burdened with service to the temple the trial court held that the case did not fall within section 44 B of the Act. On appeal the district court confirmed the decree of the trial court. In the High Court on second appeal the finding as to the inam being of both warams was not contested and it was conceded that it was a personal inam burdened with service. The only question that was agitated there was whether the case would fall within the four corners of section 44 B even if the inam which was granted in the present case was, a personal inam of both warams burdened with service to the temple. The High Court held against the trustees and dismissed the appeal. Thereupon the trustees who are the appellants before us applied for a certificate which was granted to them; and that is how the matter has come up before us. Section 44 B (1) is in these terms: "Any exchange, gift, sale or mortgage, and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the performance of a charity or service connected with a math or temple and made, confirmed or recognised by the British Government, shall be null and void. " The question for consideration is whether a personal inam burdened with service to a temple can be said to come within the meaning of the words "any inam granted for the performance of a service connected with a temple". It is urged that the words used in section 44 B (1) are of very wide import and any personal 343 grant of land howsoever large, if it is burdened with some service to a temple howsoever small, would be within the meaning of these words and would therefore come within the terms of s.44 B (1). The High Court has repelled this wide construction of the words used in section 44 B (1), and we think rightly. The distinction between a grant for an office to be remunerated by the use of land and a grant of land burdened with service is well known in Hindu law. The former is a case of a service grant and is resumable when the service is not performed. The latter is not a service grant as such but a grant in favour of a person though burdened with service and its resumption will depend upon whether the circumstances in which the grant was made establish a condition that it was resumable if the service was not performed: (see Shrimant Lakhamgouda Basavprabhu Sardesai vs Raosaheb Baswantrao alias Annasaheb Subedar and Others (1)). The question therefore is whether section 44 B covers only the first type of grant, (namely, a service grant) and not a personal grant burdened with service. Prior to the introduction of section 44 B in the Act, the enforcement of a condition of a grant in favour of charitable and religious institutions in Madras was by taking recourse to Board 's Standing Order 54. Under para. 1 of this Order, a duty was laid on the revenue officers to see that inams confirmed by the Inam Commissioner for the benefit of or for services to be rendered to any religious and charitable institution are not enjoyed without the terms of the grant being fulfilled. Under para. 2 thereof, religious and charitable inams were liable to be resumed on the ground that the whole or a portion of the land had been alienated or lost to the institution or service to which it once belonged or that the terms of the grant were not observed. Provision was also made in the Order for the authorities which would exercise the power to resume. Further provisions in that Order show that the intention normally was not to dispossess the inamdar even in the event of failure to perform the conditions of the grant but the land was subjected to (1) (1931) LXI M.L.J. 449. 344 full assessment and the assessment was made available to the institution in lieu of the service lost. In the case of personal inams burdened with service in particular what was usually resumed in the event of nonperformance of service with or without alienation was that portion of the grant which represented the value of the service burdened and not that which was personal and there was no injustice in this course for as we have already said a personal inam burdened with service was granted to an individual for himself though, he was required to perform certain services to the temple. Therefore, in case he failed to do so there might be resumption of such portion of the inam as would represent the burden of the service leaving the rest to him. It is in this background that we have to examine section 44 B (1) introduced in the Act in 1934 and see whether personal inams burdened with service are included within its ambit. It may be mentioned that on the introduction of section 44 B (1) in the Act. , B.S.O. 54 was amended and religious and charitable inams which were all governed till then by it were divided into two classes, namely (a) inams granted for the performance of a charity or service connected with a Hindu math or temple; and (b) inams not falling under class (a). Inams falling under class (a) were to be governed by the provisions of the Act while inams falling under class (b) were to be governed by B.S.O. 54 as heretofore. This amendment would also show that all religious inams, i.e., inams which had some connection howsoever slight with a temple or other religious institution were not to be governed by section 44 B and only those inams which were granted for the performance of a charity or service connected with a Hindu math or temple wore to be dealt with under section 44 B while others would still be governed by B.S.O. 54. We therefore agree with the High Court that this history affords a clue to the interpretation of section 44 B (1) and suggests that though the words used in section 44 B are open to a wide interpretation, the intention was to 345 bring within its purview only those inams which were granted directly to the temple and also those inams which were granted for the performance of a charity or service connected with a math or temple, i.e., service inams or such inams the whole income of which was for charity and not those inams which were personal inams though burdened with some service to a temple or math. As we have already said the land granted under a personal inam burdened with service may be very large and the service expected may be very slight, and it could not be the intention of the legislature when it enacted section 44 B (1) that large personal inams with slight service attached to them should be resumed and re granted to the temple under section 44 B (1) for failure to perform the service with which the grant was burdened. It would make no difference to the validity of this argument even if the service attached absorbed a larger portion of the inam leaving only a smaller portion to the grantee. This conclusion is in our opinion enforced if we look at el. (iii) of section 44 B (2)(a) which permits resumption of an inam on the ground that either the math or temple has ceased to exist or the service in question has in any way become impossible of performance. Now it could not be the intention of the legislature, where an inam was granted as a personal inam though burdened with some service to a temple or math, that such inam should be resumed simply because the math or temple has ceased to exist or for some other reason the service has become impossible of performance. The nature of a personal inam burdened with service is that it is meant for the individual to whom it is granted though the individual is required to perform some service to the temple also. The legislature could not have intended when it enacted section 44 B (2)(a)(iii) that even such an inam should be resumed when the math or temple ceases to exist. But this would be the result if the wide interpretation contended for by the appellants is accepted. In such a case obviously the personal portion of the grant has to be separated from the service portion 44 346 and if the service is not performed it is only the service portion that is liable to resumption. Further if we look at section 44 B (2)(f)(i), it provides that where an inam is resumed under section 44 B (1) it shall be re granted as an endowment to the temple or math concerned In the case of a personal inam burdened with service it will mean that if the service is not performed the whole inam would be liable to resumption and would be re granted to the temple, though the inam was granted to an individual and the service with which it was burdened might have been 'slight, the remaining income of the inam being intended as a personal grant to the individual. Therefore when section 44 B(2)(f)(i) provides for re grant of the resumed inam to the temple it presumes that the whole of the inam resumed was meant for service of the temple and there was no element of personal grant in it. It is on that basis that we can understand the re grant of the resumed inam to the temple, the idea behind the word "re grant" being that originally also it was granted for the temple though as a service inam. Similarly, section 44 B(2)(f)(ii) provides that where the math or temple has ceased to exist and an inam is resumed on that ground it shall be re granted as an endowment to the Board for appropriation to such religious, educational or charitable purposes not inconsistent with the objects of such math or temple, as the Board may direct. Here again it seems to us that the legislature could not have intended that a personal inam granted to an individual though burdened with service should be resumed when the temple has ceased to exist and the service could not be performed and should be taken over by the Board as an endowment for such purposes as the Board may direct, Such a provision would completely overlook the personal part of a personal inam burdened with service. Therefore, the view taken by the High Court that section 44 B(1), though on a wide interpretation it might also include personal inams burdened with service, is really confined to inams directly granted to the temple or service inams. for the purpose of a temple or math or inams the whole of the income of which 347 is meant for charity and does not include personal inams burdened with service, is correct. Such inams would continue to be dealt with under B.S.O. 54, class (b) as introduced by the amendment to that Order. In this view, there is no force in this appeal and it is hereby dismissed with costs. Appeal dismissed.

The property in dispute was granted in inam to the ancestors of the predecessors in interest of the plaintiff respondents for the performance of parak service in certain temples but the grantees alienated considerable portion of the property and ceased to perform the parak service. On being moved by the trustees under section 44 B(2)(a)(i) and (ii) of the Madras Hindu Religious Endowments Act, 1927, the revenue authorities after holding an enquiry ordered resumption of the inam lands and regranted them to the temple. The alienees thereupon filed a suit in which their main contention was that the revenue authorities had no jurisdiction to order the resumption of the inam under S.44 B of the Act which is in these terms "Any exchange, gift, sale or mortgage and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the performance of a charity or service connected with a math or temple and made, confirmed or recognised by the British Government, shall be null and void. " Both the trial court and the High Court on appeal held that the inam was a personal inam burdened with service to the temple and the case did not fall under section 44 B of the Act. On appeal by the trustees with a certificate of the High Court, Held, that the distinction between a grant for an office to be remunerated by the use of land and a grant of land burdened with service is that the former is a case of service grant and is resumable when the service is not performed; the latter is not a service grant as such but a grant in favour of a person though burdened with service and its resumption will depend upon whether the circumstances in which the grant was made establish a condition that it was resumable if the service was not performed. Shrimant Lakhamgouda vs Raosaheb Baswantrao, (1931) LXI M.L.J. 449, referred to. Though on a wide interpretation section 44 B(1) might also include personal inams burdened with service it is really confined to inams directly granted to the temple or service inams for the purpose of a temple or math or inams the whole income of which is meant for charity and does not include personal inams burdened with service. Such inams would continue to be dealt with under Board 's Standing Order 54 class (b) as introduced by the amendment to that order.

The appellants filed an original petition in the District Court under section 84(2) of the Madras Hindu Religious Endowments Act, 1927 for setting aside an order of the Endowments Board that a temple was a public temple and for a declaration that it was a private temPle. The Commissioner of the Endowments 'Board and: a worshippewere the contesting respondents to the petition. Pending its dispo sat the 1927 Act was repealed by the Hindu Religious and Charles ble Endowments Act of 1951. After the passing of the new Act the petition was amended by the addition of a prayer for a further dec laration that the properties in dispute were the personal property of the appellants ' family. Thereafter, a compromise decree between the appellants and the Commissioner wag passed. by which it was declared that the temple was a public temple, that the properties were the personal properties of the appellants but that the appeal ants were liable to make annual payments in cash and kind to the temple for its maintenance. 'The worshipper, who was not a part, to the compromise decree, filed the present suit for a declaration that the Compromise decree was not binding on the temple. On the questions whether: (i) the suit was not barred by the provisions of section 42 of the , and (ii) the compromise decree was invalid. HELD: (i) Section 42 of the is not exhaustive of the cases in which a declaratory decree may be made an courts have power to grant such a decree independently of the requirements of the section. The relief sought for in the present case ,was for a declaration that the compromise decree was null and voice Such a declaration is in itself a substantial relief and has imme diate coercive effect and the deity would be restored to its right in the trust properties. The suit fell outside the purview of section 4 and would be governed by the general provisions of the Civil Procedure Code and was therefore maintainable even though the worshiper was not suing as a person entitled to any legal character or the any, right as to any property as required by section 42 of the . [276 E; 277 F G] Case law referred to. (ii) The compromise decree was not valid and binding on the, temple, because, the deity was not a party to it through any representative. 271 Though under section 20 of the 1927 Act the Commissioner was ves ted with the power of superintendence and control over the temple, it does not mean that he has authority to represent the deity in proceedings before the District Judge under section 84(2) of the Act. Further, the compromise decree was beyond the scope of the proceedings, because, a declaration that the properties in dispute were the 'Personal. properties of the appellants ' family and not of the temple, was outside the purview of section 84(2). [278 A B, F, H]

The assessee in these appeals is an Hindu Undivided Family The assessment years in question are ranged from 1942 43 to 1953 54. The assessee filed its returns for these years in time. The assessee 's account books showed considerable cash credits in the name of some relations of the second respondent, the Karta of the H.U.F. The I.T.O. went into the genuineness of these cash credit entries. 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 assessment was made in pursuance of an agreement or settlement arrived between the assessee and the Deputy Director of Inspection (Investiga tion). Long after the assessments in question were finalised, the I.T.O. issued notices to the appellants under section 34(1) (a) of the Indian Income Tax Act 1922, seeking to reopen the assessments already finalised. The assessee challenged the validity of these notices of the I.T.O. The High Court allowed the writ petitions and quashed the impugned notices. The assessee alleged that there was no relevant material before the I.T.O. before he issued the notices under s 31(a) on the basis of which he could have reason to believe that any income had escaped assessment. In the writ petitions, the assessee called upon the I.T.O. 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 I.T.O produced the report made by the I.T.O. to the Central Board of Revenue under s.34(1)(a) nor the order of the Central Board of Revenue. Dismissing the appeal, HELD : (i) Before an I.T.O. can issue a statutory notice under s.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 I.T.O. and the satisfaction of the Central Board of Revenue on the basis of the reasons recorded by the I.T.O. that it is a fit case for issue of notice under section 34(1) (a) are extremely important circumstances to find out whether the I.T.O. has jurisdiction to proceed under s.34(1)(a). [104D] 103 Calcutta Discount Co. Ltd. vs I.T.O. Company District 1 Calcutta and Others, ; Chhugamal Rajpat vs section P. Chalia & Ors. 79 I.T.P 603; Sheonath Singh vs Appellate Assistant Commissioner of Income Tax, Central, Calcutta & Ors., referred to. (ii)In the present case, 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 I.T.O. and the Order received by him, must have been in the file of the I.T.O. and reason was given for not producing those records. These circumstances give rise to an adverse inference that the records in question were not produced because they did not assist the department 's case. Under the circumstances, it is not possible to come to the conclusion that the facts necessary to confer jurisdiction on the I.T.O. to proceed under s.34(1)(a) had been established. There is nothing to show on record that there was any relevant material before the I.T.O. before he issued the notices under s.34(1) (a). [105F]

The appellants and the five respondents were displaced persons. The Deputy Custodian of Nizamabad District allotted about 60 acres of land to the five respondents. The allotment was by way of lease. There was no condition imposed upon them that they should cultivate the lands personally. While the lease was continuing in force, the Government of India issued a Press Note on November 13, 1953 by which they announced that they had decided to allot evacuee agricultural land in Hyderabad State to displaced persons whose claims for agricultural land had been verified under the Displaced Persons (Claims) Act, 1950. The appellants made an application in pursuance of this notifi cation and on May 4, 1954 the land now in dispute, though under a subsisting lease in favour of the respondents, was allotted to them. In the mean time the , came into force on October 9, 1954. Under Section 20 of this Act, the Regional Settlement Com missioner issued Sanads in favour of appellants in respect of these lands. Both the appellants and the respondents claimed these disputed plots. The matter went up to the Deputy Chief Settlement Commissioner. He referred the case of both parties to the Government of India for action under section 33 of the Act. The matter was considered under section 33 of the Act by the Deputy Secretary in the Rehabilitation Ministry who upheld the contentions of these respondents. The result was that the allotment made in favour of the appellants was set aside. It is the legality of this order that is challenged in this appeal. Held (i) The order of the Central Government was covered by section 33 of the Act as one dealing with and rectifying an error committed in relation to a "thing done or action taken" with respect to a rehabilitation grant to a displaced person. Not merely the order of the Regional Settlement Commission rebut the entire question as to whether the respondents as original allottees by way of lease were entitled to the relief of restoration was referred to the Central Government by reason of the order of the Deputy Chief Settlement Commissioner. Both the parties were heard on all the points by the Central Government before the orders were passed and it would not therefore be right to consider that the matter in issue before the Central Government was namely the correctness of the order of the Regional Settlement Commissioner, which read in vacuo might not be comprehended within section 39 of the Act. (ii) It is manifest that a Sanad can be lawfully issued only on the basis of a valid order of allotment. If an order of allotment which is the basis upon which a grant is made 104 is set aside it would follow, and the conclusion is inescapable that the grant cannot survive, because in order that grant should be valid, it should have been effected by a competent officer under a valid order. If the validity of that order is effectively put an end to, it would be impossible to maintain unless there were any express provision in the Act or in the rules, that the grant still stands. On the facts of this case it was held that where an order making any allotment was set aside the title which was obtained on the basis of the continuance of that order also fell with it. Partumal vs Managing Officer, Jaipur, I.L.R. , distinguished. Balwant Kaur vs Chief Settlement Commissioner (Lands), I.L.R. [1964] Punjab 36, approved.

The appellant, a Cotton Mill in Indore in Holkar State was taxed in respect of profits, gains and income under the Indore Industrial Tax Rules, 1927 by the then Ruler of Indore. The Holkar State merged into the State of Madhya Bharat which acceded to India. The Rajpramukh of the new State promulgated an Ordinance No. 1 of 1948 to provide for peace and good Government of the State. This Ordinance was superseded by Act 1 of 1948. Thereafter on December 28, 1949, me Government issued a Notification under r. 18 of the Tax Rules purporting to make rules under r. 17 thereof. These rules made certain amendments in the Tax Rules. The State of Madhya Bharat became one of the Part B States on January 26, 1950. From April 1, 1950, Finance Act No. 25 of 1950 came into force and applied to Madhya Bharat also. According to its provision, the Tax Rules came to be repealed from after the accounting year ending on March 31, 1949 and assessments could only be made under the Tax Rules upto the end of the accounting period ending on or before March 31, 1949. It further provided that even the assessments for the years previous to the accounting year ending on March 31, 1949 could only be made by the corresponding authorities under the Income tax Act, and that appeals would lie to the corresponding authorities under the Income tax Act; no levy and assessment could be made by the authorities under the repealed law and no appeal would lie to the authorities or Court under that law. This provision as to the authorities competent to make assessments was lost sight of with the result that assessments were made for the years in dispute which were all before the accounting year ending on March 31, 1949 by the authorities under the Tax Rules, as they were before their repeal. When this mistake was discovered, Parliament passed the Madhya Bharat Taxes on Income (Validation) Act, No. 38 of 1954. The appellant then challenged the validity of the assessments under the Tax Rules, on the grounds: (1) that the amendments of the Tax Rules on December 28, 1949 were invalid as such amendments could not be made under r. 17 of the Tax Rules, as was purported to be done; (2) even if the amendments were good, they could not have retroactive effect and could not take away the vested right of appeal; (3) as after the Finance Act, 1950, assessments were made by the old officers appointed tinder the Tax Rules and not by the corresponding officers under the Income tax Act, the assessments were invalid and the Validating Act could not validate them because, (i) the Validating Act itself was discriminatory and was hit by article 14, and (ii) because in any case it did not apply to the present assessments. The High Court repelled all these contentions and dismissed the writ petition. On appeal by certificate this Court, Held: (i) The amendments which were made in the Tax Rules on December 28, 1948, could be justified on the basis of Act 1 of 1948. All that section 5 of Act 1 of 1948 requires is the publication of the 859 regulation made thereunder and their being made by Government, and that has been complied with in this case. There is no other formality required for making regulations and therefore, even though there was a mistake in the opening part of the Notification of December 28, 1949, the amendments made in the Tax Rules can be upheld under section 5 of Act 1 of 1948 as regulations. (ii) Even a vested right of appeal can be taken away by express legislation or by legislation which, though it may not expressly repeal the vested right of appeal, has the effect of such repeal by necessary implication. Though the right of second appeal on facts is taken away by the new rule 13 inserted in the Tax Rules, such right is taken away by legislation by necessary intendment. Therefore, the right of second appeal after the amendment must be confined in all cases by necessary intendment to questions of law only. (iii) The Validating Act is not hit by article 14. The present cases are with reference to years 1940 48, that is before the accounting year ending on March 31, 1949. The assessments in these cases were carried on by the old officers under the old law and the Validating Act specifically validates such assessments. In these circumstances it cannot be said that these assessments have not been validated by the Validating Act.

Respondents 1 to 9 filed a suit against the Appellants and some of the other respondents for a declaration that they hid been carrying on, and were entitled to the worship without interference of the idol of Adeshwarji in the temple named after him at Paroli according to the tenets observed by the Digambri Sect of the Jain religion. They further alleged : that the temple was constructed and the idol consecrated according to and by the followers of their sect; that in December, 1949, the defendants had attempted to convert the said idol into the idol of the Swetambri Sect by putting Chakshus (artificial eyes) thereon, but were prevented due to strong opposition of the followers of Digambri Sect. It was claimed that although a temporary settlement was reached between the two sects while the rights in the temple were to be adjudicated upon by a Civil Court, the defendants had made arrangements to alter the temple according to their tenets and that they were intending to enclose the idol by doors and locks with the object of interfering with the free exercise of a Digambris ' right to worship the idol. It was therefore prayed that the defendants be restrained by a permanent injunction from altering the nature and shape and appearance of the idol in any manner or from doing any act which would interfere with the right of worship of the followers of the Digambri Sect. The defendants denied that the Digambri Sect had any right of worship of the idol or had ever exercised such a right and contended that the idol and the temple is in all respects a temple of the Jain Swetambri Sect. The Trial Court decreed the suit and the District Judge in appeal as well as the High Court confirmed the decree. The High Court also fixed three hours a day when the Digambris may use the temple for worship In appeal to this Court, it was contended inter alia on behalf of the appellant that the reliefs claimed made it clear that the dispute was not of a civil nature; and that the judgment of the Trial Court was wholly vitiated because the Trial Judge not having accepted the evidence produced before him, based his findings on his own inspection. It was also contended that unless the ownership of the temple, was established or that the idol belonged to the Digambri Sect, no injunction could be given nor could the respondents be permitted to worship there; in the plaint the respondents had averred that the idol is a Digambri idol and as they had failed to prove this, their right to worship also failed. HELD:Dismissing the appeal, (i)From the pleadings and the controversy between the parties it was clear that the issue was not one which was confined merely to rites and rituals but one which effected the rights of worship. If the Digambries have a right to worship at the temple, the attempt of the Swetam 837 belies 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, with respect to which a civil suit is maintainable under Section 9 of the Civil Procedure Code. This position is well established. [843 B] Sir Seth Hakam Chand & Ors. vs Maharaj Bahadur Singh & Ors., 60 I.A. 313 and Nar Hari Sastri and Ors. vs Shri Badrinath Temple Committee; , , referred to. (ii)While, giving his findings the Trial Judge remarked that the evidence led by the Plaintiffs appeared to be correct. These observations themselves show that the evidence on record was an element in the formulation of the Trial Court 's judgment buttressed by the observations of the learned Judge during the site inspection. it was clear that the description given by the learned Judge of the idols in the Adeshwarji Temple and the Temple of the Swetemberies 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. There was therefore no validity in the contention that the finding of the Trial Judge was based entirely on the result of his inspection. [844 G 845 C] (iii)The concurrent findings of the Courts below that the idol was Nirker ' (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 clear that it was an ancient temple and that both the Digamberies and the Swetamberies worship the idol. It was 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 it has been rightly so held by all the courts. [846 E] Once the right of worship of Digamberies was established they would be entitled to the injunction sought for by them against the Appellants from preventing them from worshiping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple. The directions of the High Court extending the time for worship by Digamberi Sect from one hour to three hours was not unreasonable. [848 A B]

At the time of passing of the Madras Estates (Abolition and Conversion into Ryotwari) Act (Madras Act XXVI of 1948), a 15/16th portion of village Karuppur situated within the Zamindari of Ramanathapuram was hold by the inamdars under a pre settlement grant confirmed by the British Government, the estate being permanently settled in 1802. The remaining one sixteenth portion was held by the holders of darmila or post settlement inams made by the proprietor of the estate. In exercise of the powers conferred by section 1(4) of the Madras Act XXVI of 1948 the State of Madras issued a notification dated 22nd August 1949 bringing the Act into force as regards the Ramanathapuram estate from 7th September 1949, the latter Zamindari including one sixteenth part of Haruppur village. The respondent the holder of the one sixteenth inam contended that under section 1(3) of the Madras Act XXVI of 1948 the State of Madras bad power to notify only what would be estates as defined in section 3(2) of the Madras Estates Land Act I of 1908 and that one sixteenth part of the village of Karuppur included in the notification was not an estate as defined in that section and the notification was therefore ultra vires. Held (repelling the contention) that when the darmila inam does not relate to the entire village but only to a fraction of it, it must be held to retain its character as part of the estate in the hands of the inamdar and when the estate is notified under section 1(4) of the Madras Act XXVI of 1948 the inam will vest in the State under section 3(b) of the Madras Act XXVI of 1948 and therefore one sixteenth portion of the village of Karuppur forming a darmila inam will vest in the State. Under the provisions of the Madras Act XXVI of 1948 the darmila minor inamdar is entitled to claim compensation for the transfer of his portion of the estate to the Government. 115 908 Darmila minor inam is not protected by section 20 of the Act. Brahmayya vs Achiraju ([1922] I.L.R. and Nara yanaraju vs Suryanarayudu ([1939] 66 I.A. 278), referred to.

% As a result of the order passed by the High Court, proceedings under section 44(2a) of the West Bengal Estates Acquisition Act, 1953 were re opened by the Special Revenue officer and final orders were passed on 9.2.1982. The Ist respondent preferred an appeal against this order before the 9th Additional District Judge, the competent authority to hear an appeal. On 1.12.83 the Ist respondent obtained an opinion of the Advocate General regarding the aforesaid proceedings, and filed that opinion with an application. The Additional District Judge passed an order on 25.2.86 rejecting the prayer of the Ist respondent that the appeal be disposed of in accordance with the opinion of the Advocate General, but observed that the opinion of the Advocate General could only be looked into as the ground of appeal on behalf of the Ist respondent. The date of hearing of the appeal was fixed on 19.4.86 to suit the convenience of the Advocates of the parties. A petition under article 227 was filed in the High Court against the 818 aforesaid order by the Ist respondent. The High Court treated this petition as a revision application challenging the order passed by the Additional District Judge on 25.2.86, and held that the Additional District Judge should have disposed of the appeal in accordance with the opinion of the Advocate General, and quashed the proceedings under Section 44(2a) as well as the appeal that was pending hearing before the Additional District Judge. Allowing the Appeal by the State this Court, ^ HELD: l. The High Court lost sight of the fact that the only grievance against the order of the 9th Additional District Judge was that he refused to decide the appeal in accordance with the opinion of the Advocate General and that he did not give an early date of hearing. The question about the suo moto proceedings under section 44(2a) and the validity of the Amendment Act, 1969 and its effect were not considered by the appellate authority and in fact the appeal was still pending before the 9th Additional District Judge which was yet to be heard and disposed of. [823G H] 2. The High Court after examining the legal aspect without having been raised before it decided the matter so that neither appeal remains nor any proceedings remain and in doing so the High Court went on without there being proper grounds before it and without giving an opportunity to the appellant State of West Bengal, to have their say in this matter. [824A B] 3. The order passed by the High Court dated 20.5.87 is, therefore, completely without jurisdiction and on matters which were not before it and also without giving adequate opportunity of hearing and, therefore, deserves to be quashed, and is quashed. [824B c] 4. The appeal that was filed by the Ist respondent before the 9th Additional District Judge was pending when the High Court passed the impugned order, revives. It could not be said that the appeal is disposed of as observed by the High Court. It is directed that the appeal which was pending before the 9th Additional District Judge shall be heard by the Additional District Judge in accordance with law. [824C D]

Appeals Nos. 125 to 129 of 1957. Appeals by special leave from the judgment and decree dated October 7, 1952, of the Bombay High Court in Second Appeals Nos. 601 to 605 of 1952. S.T. Desai, Avadh Behari and B. P. Maheshwari, for the appellants. A.V. Viswanatha Sastri and A. G. Ratnaparkhi, for the respondents. March 14. The Judgment of the Court was delivered by SHAH, J. These five appeals raise a common question about the validity of Rule 2C framed by the respondent the Municipality of Barsi under section 58(j) of the Bombay Municipal Boroughs Act, 1925 hereinafter called the Act. The Lokmanya Mills hereinafter called the appellants are a company registered under the Indian Companies Act holding an expensive area of land City Survey No. 2554 within the Municipal Borough on which are constructed buildings of the factory, ware houses, bungalows and other structures appurtenant to the factory. The respondent, a Borough Municipality constituted under the Act is by section 73, 308 entitled to levy a rate on lands and buildings and also a water rate. Under the rules framed by the Municipality house tax and water tax were levied on buildings and non agricultural lands on their annual letting value at uniform rates whether the purpose was residential, business or manufacturing. In 1944, the Municipality resolved to enhance the assessment of lands and buildings within its area. After some correspondence with the Commissioner, Central Division, the General Body of the Municipality resolved that the rental value for leaving rates on mills and factories within its limits be fixed at Rs. 40 for every 100 square feet. Notices of this resolution under section 75(b) of the Act were issued and objections to the proposed enhancement were invited from the taxpayers and after obtaining the approval of the Government of Bombay, the new rules were made operative from April 1, 1947. The rules relevant for the purposes of these appeals are: Rule 2A: "The assessment of house tax on all lands, buildings and non agricultural lands, other than Government, buildings coming under Proviso A of section 73 of the Bombay Boroughs Act of 1925, at rates mentioned in the Schedule attached to these rules." Rule, 2B: In case Government buildings coming under Proviso A of section 73 of the Bombay Boroughs Act are used beneficially, the assessment of such buildings shall be made as specified in sub section 2 and 3 of section 74. Rule 2C: As regards Mills, factories and buildings relating thereto, the annual letting value shall be fixed at Rs. 40 per 100 square feet or part thereof for every floor. , ground floor or cellar and the tax shall be assessed on the said annual letting value, at the ordinary rate. Explanation: The words "buildings pertaining thereto" include buildings in the compound of the Mills such as ware houses, godowns, shops of the mills etc. but does not include residential buildings that is to say bungalows and out houses. Note: Assesstnent shall be made at the ordinary 309 rate on buildings which are not taxed under rule 2C above. The Municipality prepared an assessment list under the new scheme of taxation in respect of factory buildings and buildings relating thereto and issued notices of demand calling upon the appellants to pay house tax and water tax newly assessed thereon. The appellants paid under protest the tax demanded, and filed five suits in the 'court of the, Civil Judge, Junior Division of Barsi to recover the amounts levied by the Municipality in excess of the amounts due under the old scheme. In all these suits, the principal issue raised was about the validity of rule 2C framed by the Municipality for levy of rates "on Mills, Factories and other buildings relating thereto". The trial court held that rule 2C was valid and within the competence of the Municipality and dismissed the suits for refund of house tax and water tax. The District Court at Sholapur in appeal declared rule 2C "illegal and ultra vires" and by injunction restrained the Municipality from making any claim or demand for house tax and other taxes from the appellants on the basis of them rule. The High Court of Judicature at Bombay, set aside the decree of the District Court disagreeing with the view that rule 2C was ultra vires. In these appeals filed with special leave against the judgments of the High Court, the only question which falls to be determined is whether by rule 2C the Municipality is entitled to collect tax leviable as a rate after computing the annual letting value solely on the area of the factory and buildings related thereto. By section 73, the Municipality is authorised subject to any general or special orders which the State Government may make in that behalf and to the provisions of as. 75 and 76, to impose for the purposes of the Act any one or more of the classes of taxes, amongst which are included a rate on buildings or lands or both situate within the municipal borough and general water rate which may be imposed in the form of a rate assessed on buildings or lands or in any other form. Section 75 prescribes the procedure preliminary to imposing a tax. The procedure for assessing the 310 liability to rates on lands and buildings is prescribed by sections 78 to 84 of the Act which provide for preparation of the assessment list, its authentication and amendment. When a rate on building or lands or both is imposed, the Chief Officer causes ail assessment list of all buildings or lands or lands and buildings in the municipal borough to be prepared containing inter alia the names of the owner, the valuation based on capital or annual letting value as the case may be on which the property is assessed and the amount of tax assessed thereon. The expression "Annual; letting value" is defined in section 3(1) of the Act as meaning the annual rent for which any building or land, exclusive of furniture or machinery contained or situate therein or thereon might reasonably be expected to let from year to year, and shall include all payments made or agreed to be made by a tenant to the owner of the" building or land on account of occupation, taxes, insurance or other charges incidental to his tenancy. By section 78 sub section (1) cl. (d) and Explanation to section 75, the rate to be levied on lands and buildings may be assessed on the valuation of the lands and buildings based on capital or the annual letting value. By the rules in operation prior to April 1, 1947, house tax and water tax were levied as rates in respect of all lands, buildings and non agricultural lands on the annual letting value (except Government buildings). Even under the new rules, house tax and water tax continued to be levied in respect of all buildings and, non agricultural lands as rates: but the rate in respect of buildings falling within rule 2C was assessed on a valuation computed on the floor area of the structures, and not on the capital value nor on the annual rent for which the buildings may reasonably be expected to let. This was clearly not a tax based on the annual letting value, for "Annual letting value" postulates rent which a hypothetical tenant may reasonably be expected to pay for the building if let. A rate may be levied under the Act on valuation made on capital or on the annual letting value. If the rate 311 is to be levied on the basis of capital value, the building to be taxed must be valued according to some recognised method of valuation: if the rate is to be levied on the basis of the annual letting value, the building must be valued at the annual rental which a hypothetical tenant may pay in respect of the building. The Municipality ignored both the methods of valuation and adopted a method not sanctioned by the Act. By prescribing valuation computed on the area of the factory building, the Municipality not only fixed arbitrarily the annual letting value which bore no relation to the rental which a tenant may reasonably pay, but rendered the statutory right of the tax. payer to challenge the valuation illusory. An assessment list prepared under section 78, before it is authenticated and finalised, must be published and the taxpayers must be given an opportunity to object to the valuation. By the assessment list in which the valuation is not based upon the capital value of the building or the rental which the building may fetch, but on the floor area, the objection which the tax payers may raise is in substance restricted to the area and not to the valuation. Counsel for the Municipality sought to rely upon The Madras and Southern Mahratta Railway Co., Ltd. vs The Bezwada Municipality (1) decided by the Judicial Committee of the Privy Council, in support of the plea that the rate based on valuation in proportion to the floor area is validly levied. By section 81 sub section (2) of the Madras District Municipalites Act, 1920, a tax for general purposes and a water and drainage tax were to be levied at such fractions of the annual value of lands or buildings or both as may be fixed by the Municipal Council. By section 82 Sub section (2) of that Act, the annual value of lands and buildings was to be the gross annual rent at which they may reasonably be expected to let, but by the proviso, it was enacted that in the case of any Government or Railway building, the annual value of the premises shall be deemed to be 6% of the total of the estimated value of the land and the estimated present cost of erecting the (1) I.L.R. 312 building subject to certain deductions. The Municipality of Bezwada levied property tax on a piece of vacant land belonging to the Madras and Southern Mahratta Railway Company on the annual value computed at 6% of its capital value. This method of taxation was challenged by the Railway Company on the contention that all methods of valuation other than the method prescribed by the proviso to section 82(2) were by necessary implication prohibited. This contention was rejected because the generality of the sub. stantive enactment was left unqualified except in so far as it concerned the particular subjects to which the proviso related. Open lands were not covered by the proviso and it was competent to the municipality to levy the tax under section 82(2) on the annual value and that value would be determined by any of the recognised methods of arriving at the rent which a hypothetical tenant 'may reasonably be expected to pay for the lands in question. This case has in our judge ment no relevance to the present case. If the Municipality of Barsi had adopted any of the recognised methods of valuation for assessing the annual letting value, the tax would not, be open to challenge, but the method adopted was not a recognised method of levying the rate. ' The High Court relied upon its earlier judgment in The Borough Municipality of Amalner vs The Pratap Spinning Weaving and Manufacturing Co.p Ltd., Amalner (1). In that case, the court negatived the challenge to the validity of the rules similar to those impugned in these appeals. The Amalner Municipality had by rules framed under the Bombay Municipal Boroughs Act sought to levy a rate equal to a per centage of the annual letting value which was computed on the floor area of "mills and factories". The court held that the method of taxation adopted by the Municipality had remained unchallenged for a long time,, that the rules had been sanctioned by the Government and they were not shown to be "capricious, arbitrary and unreasonable and that the valuation of the property by reference to the floor area was (1) I.L.R. 313 not altogether unknown to the law of rating. The High Court also observed that in assessing the rent 2 which a hypothetical tenant may pay several methods are open to the Municipality and if on examining the cases of all the factory buildings within their jurisdiction, the Municipality concluded that the rent which the hypothetical tenant may reasonably be expected to pay for those buildings fits in with the rent which they had fixed by adopting the flat and uniform rate the principle of fixing the annual letting value on the basis of the floor area would not be open to challenge. It was assumed in that case that all factory buildings within the area of the Amalner Municipality were. alike in essential features and were intended to be used for purposes which were alike, and that probably the Municipality may have been satisfied that the principle enunciated in the rule impugned worked out on the whole as a fair basis for determining the valuation of the building in question. In our view, this approach to a rating problem arising under the Act is not permissible. In any event, there is no evidence on the record of this case that the factories and "buildings relating thereto" such as ware houses, godowns and shops of the Mills situate in the compound of the mills, may be separately let at the uniform rate prescribed ' by the Municipality. The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes which are in their nature not similar, way reasonably fetch if let out to tenants and in the virtual deprivation to the rate payer of his statutory right to object to the valuation. Another judgment of the Bombay High Court in Motiram Keshavdas vs Ahmedabad Muncipal Borough (1) calls for reference. It was held in Motiram 's case that a water tax imposed by the Ahmedabad Municipality as a rate not depending upon the value of the property assessed but in lump sum was not a rate for the purpose of section 73(x) of the Bombay Municipal Boroughs Act, 1925 and the rule which authorised the levy of such a lump sum was ultra vires (2) (1942) Bom. L. R.280 40 314 These appeals must be allowed and the decrees passed by the High Court set aside and the decrees passed by the District Court of Sholapur restored with costs in this court and the High Court. One hearing fee. Appeals allowed.

The Bombay Municipal Boroughs Act, 1925, empowered a municipality to levy rates on lands and buildings which were to be assessed on the valuation based on the capital or the annual letting value. The Act defined the annual letting value inter alia as the annual rent for which any building or land might reasonably be expected to let from year to year. The General Body of the Municipality of Barsi framed new rules under section 58 of the Act for levying rates: for all buildings and non agricultural lands the rate was to be levied on the annual letting value, but for mills and factories and buildings relating thereto it was provided by r. 2C that the annual letting value was to be fixed on the floor area. The Municipality issued notices of demand under the new r. 2C calling upon the appellant (which is a company owning a textile mill) to pay house and water taxes which were assessed as rates which was paid by the appellants under protest. The question to be determined was whether by r. 2C the Municipality was entitled to collect tax leviable as a rate after computing the annual letting value solely on the area of the factory and building relating thereto. Held, that a rate may be levied by a municipality under the Bombay Municipal Boroughs Act, 1925, on the valuation made on the basis of capital or on the annual letting value of a building and not on a valuation computed merely on the floor area of the structures, such a rate was clearly not a tax based either on the capital value or on the annual letting value, for "annual letting value" postulates rent which a hypothetical tenant may reasonably be expected to pay for the building if let. The Municipality had no power under the Act to ignore the methods of valuation prescribed by the Act, and to adopt a method not sanctioned by the Act. By prescribing valuation computed on the area of the factory building the Barsi Municipality not only fixed arbitrarily the annual letting value which bore no relation to the rental which a hypothetical tenant may reasonably be expected to pay but rendered the statutory right of the tax payer to challenge the valuation illusory as the objection which the tax payer could raise thereto was in substance restricted to the area of the building and not to its valuation. 307 The rule adopting a flat and uniform rate on the assumption that all factory buildings within the area of a municipality were not alike in essential features and were not intended to be used for purposes which were alike was not permissible under the Act. The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes in their nature not similar, may reasonably fetch if let out to tenants and in the virtual deprivation to the rate payer of his statutory right to object to the valution. Rule 20 by the Barsi Borough Municipality under section 58 of the Bombay, Municipal Boroughs Act, 1925, was illegal and ultra vires. The Madras and Southern Mahratta Railway Co. Ltd. vs The Bezwada Municipality I.L.R. , not applicable. The Borough Municipality of Amalner vs The Pratap Spinning Weaving and Manufacturing Co. Ltd., Amalner, I.L.R. , not approved. Motiram Keshavdas vs Ahmedabad Municipal Borough, , referred to

In Appeal No. 1347(N) 1977 by special leave against the interlocutory orders dated 21 4 1977 of the Company Judge of the Calcutta High Court in the company petition No. 85/75, filed by the respondents sections 397/398 of the Companies Act, '1956, complaining of oppression by majority and praying for certain reliefs against the appellants and also the orders dated 25 4 1977 of the Division Bench against that order, this Court made an order on 31 5 1977, in terms of an agreement reached between the par ties. By one such term the company was directed to purchase 1300 shares held by the respondents petitioners. The price of the shares was to be determined by Messrs. Price Water House and Peet, Chartered Accountants and Auditors, as on the date of the filing of the petition sections 397 398, on the basis of the existing as also contingent and anticipated debts, liabilities, claims, payments and receipts of the ' company. The Chartered Accountants were to determine the value of the shares after examining accounts and calling for necessary explanations and after giving opportunity to both the groups to be heard in the matter and the determination of the value by the Chartered Accountants was to be final and binding and not open to any challenge by either side on any ground whatsoever. After such determination of the value the company has to purchase the shares, and, on such purchase, the share capital of the company was to stand reduced protanto. The order made it ;fear that if the value of the shares is more than Rs. 65/ per share, the company will have to pay the balance, and, if it is less than Rs. 65/ per share, the respondents who have to sell the shares, will have to refund the difference between. the price of the shares calculated at the rate of Rs. 65/ per share and the rate determined by the Chartered Accountants and Auditors within four weeks from the date of determination. After the appeal was thus disposed of, the interveners, claiming to be the creditors of the company to the extent of 40 lakhs, in their petition dated 22 8 1977 requested the Court (i) to permit them to be heard and (ii) to postpone the purchase of shares by the company until such time as the company adopts proceedings in a competent court by following the procedure laid down by the , particularly in Sections 100 to 104 for reduction of the share capital. In the alternative they prayed for safeguarding their interests by modifying the Court 's order dated 31 5 1977. Rejecting the petition to interfere with its order dated 31 5 1977, the Court, after hearing the interveners, HELD : (i) Section 77 envisages that, on the purchase by a company of its own shares, reduction of its share capital may be effected and sanctioned in either of two different modes : (i) according to the procedure prescribed in Sections 100 to 104; or (ii) under section 402, depending upon the circumstances in which reduction becomes necessary. [427E F] (ii) Section 77 of the prohibits the company from buying its own shares unless the consequent reduction of capital is effected and sanctioned in pursuance of Sections 100 to 104 or Section 402. It places an embargo on the company purchasing its own shares so as to become its own member, but the embrago is lifted, if the company reduces its share capital protanto. [427E] 423 (iii) Section 77 leaves no room for doubt that reduction of share capital may have to be brought about in two different situations by two different modes. Undoubtedly, where the company has passed a resolution for reduction of its share capital and has submitted it to the Court for confirmation, the procedure prescribed by Sections 100 to 104 will have to be followed, if they are attracted. On the other hand, where the Court, while disposing of a petition under Ss. 397 and 398, gives a direction to the company to purchase shares of its own members, consequent reduction of the share capital is bound to ensue, and, before making such a direction it is not always necessary to give notice of the consequent reduction of the share capital to the creditors of the company. No such requirement is laid down by the Act. The two procedures ultimately bringing about reduction of the share capital are distinct and separate and stand apart from each other; and one or the other may be resorted to according to the situation. That is the clearest effect of the disjunctive 'or ' in section 77. [428H, 429AB] (iv) Where the reduction of share capital is necessitated by directions given by the Court in it petition under sections 397 and 398, the procedure prescribed in Sections 100 to 104 is not required to be followed in order to make the direction effective. [428G] (v) It would not be correct to say that, whenever it becomes necessary to reduce the capital of a company, the reduction can be brought about only by following the procedure prescribed in Ss. 100 to 104. Sections 100 to 104 specifically prescribe the procedure for reduction of share capital where the Articles of the company permit and the company adopts a special resolution which can only become effective on the Court according sanction to it. Reduction of share capital may also take pursuant to a direction of the Court requiring the company to purchase the shares of a group of members while granting relief u/s 402. Both the procedures, by which reduction of capital of a company may be effected, are. distinct and separate and stand apart from each other. [427F H] (vi) The scheme of Ss. 397 to 406 is to constitute a code by itself for granting relief to oppressed minority shareholders and for granting appropriate relief, a power of widest amplitude, inter alia, lifting the ban on company purchasing its share under Court 's direction, is conferred on the Court. When the Court exercises this power by directing a purchase of its shares by the company, it would necessarily involve reduction of the capital of the company. Such a power of the Court is not subject to a resolution to be adopted by the members of the company which, when passed with, statutory majority, has to be submitted to Court for confirmation. No canon of construction would permit such an interpretation in which the statutory power of the Court for its exercise depends upon the vote of the members of the company. [428C E] (vii) If reduction of share capital can only be brought about by resorting to the procedure prescribed in Ss. 100 to 104, it would cause inordinate delay and the very purpose of granting relief against oppression would stand self defeated. [428E F] (viii) When minority shareholders complain of oppression by majority and seek relief against oppression from the Court under Ss. 397 and 398 and the Court, in a petition of this nature, considers it fair and just to direct the com pany to purchase the shares of the minority shareholders to relieve oppression, if the procedure prescribed by Ss. 100 to 104 is required to be followed, the resolution will have to be first adopted by the members of the company, but that would be well nigh impossible because the very majority against whom relief is sought would be able to veto it at the threshold and the power conferred on the Court would be frustrated. That could never have been the intention of the Legislature. [428F H] (ix) The object_behind prescribing this procedure requiring, in special circumstances as contemplated in Section 101(3), the court to give notice to the creditors is that the members of the company may not unilaterally act to the detriment of the creditors behind their back. If such a procedure were not prescribed, the Court might, unaware of all the facts, be persuaded by the members to confirm the resolution and that might cause, serious prejudice to the creditors. But such a situation would not be likely to arise in a petition 424 under Ss. 397 and 398. In such a petition the Court would be in a better position to have all the relevant facts and circumstances before it and it would be the Court which would decide whether to direct purchase of shares of the members by the company. Before giving such a direction, the Court Would certainly, keep in view all the relevant facts and circumstances, including the interest of the creditors. Even if the petition is being disposed ' of on a compromise between the parties, yet the Court, before sanctioning the compromise, would certainly satisfy itself that the direction proposed to be given by it pursuant to the consent terms, would not adversely affect or jeopardise the interest of the creditors. Therefore, it cannot be said that merely because section 402 does not envisage consent of the creditors before the Court gives direction for reduction of share capital consequent upon purchase of shares of some of the members by the company. there is no safeguard for the creditors. [430EH] In the instant case, there is no scope for apprehension on behalf of the interveners that the reduction of share capital to be effected under the Court 's direction, without reference or notice to creditors, would adversly affect their interests because : (1) As per the order of the Court dated 31st May, 1977 while ascertaining the break up value of the shares on the date of filing the petition under Sections 397 and 398, the Chartered Accountants and Auditors will have to take into account the assets of the company as also the existing, contingent and anticipated debts, liabilities, claims, and demands etc., as revealed in the accounts of the company for the last five years, which would indisputably include the claims made by the interveners in the two suits filed by them to the extent to which they appear genuine and well founded and. (ii) the order of the Court did not fix any minimum price at which the shares shall be purchased by the company. [431A C, D] (x) A right to notice by reason of any rule of natural justice, which a party may establish, must depend for its existence upon proof of an interest which is bound to be injured by not hearing the party claiming to be entitled to a notice and to be heard before an order is passed. If the duty to give notice and to hear a party is not mandatory, the actual order passed on a matter must be shown to have injuriously affected the interest of the party which was to be given no notice, of the matter. [431G] In the instant case, after hearing the intervener , it was found that no interest of theirs has been injured by not hearing them before the order was passed. The order passed by this Court on 31st May, 1977, is not vitiated on the ground of non issue of notices to them under the inherent powers of the Court under Rule 9 of the Company (Court) Rules, 1959, even though there was no statutory duty to hear them. [431H. 432A] (xi) Undoubtedly, when a petition is made to the Court under Ss. 397 and 398, it is obligatory upon the Court to give notice u/s 400 of the petition to the Central Government and it would be open to the Central Government to make a representation and if any such representation is made, the Court would have to take it into consideration before passing the final order in the proceeding. But Section 400 does not envisage a fresh notice to be issued at the appellate stage. [432C D] (The Court directed to expedite the suit Nos. 729/74 and 933/76 filed by the interveners in the Bombay High Court and dispose off within a period of six months).

A who was a tenant of N sub let the premises to B and C. N filed a suit for ejectment against A, B and C in the Court of Small Causes, Bombay, on the ground of illegal sub letting. The suit was decreed. Thereafter, A, B and C filed the present suit in the Bombay City Civil Court for a declaration that A was a tenant of N and was protected from eviction by the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and that B and C were lawful sub tenants of A and were as such entitled to possession, use and occupation of the premises. The City Civil Court held that it had jurisdiction to entertain the suit but dismissed it on the ground that there was no lawful subletting. On appeal, the Bombay High Court held that the City Civil Court had no jurisdiction to entertain the suit and dismissed the appeal without going into the merits : Held, that the High Court was right in holding that section 28 of the Act barred the City Civil Court from entertaining the suit. Section 28 explicitly confers on courts specified therein jurisdiction to entertain a suit between a landlord and a tenant in respect of a claim which arose out of the Act or any of its provisions, 368 and expressly prohibits any other court exercising jurisdiction with respect thereto. In the present suit the claim being one which arose out of the Act, and the City Civil Court not being a court specified in section 28, it could not entertain the suit. Though section 29A of the Act allows questions of title to be regarded in a civil court, it applies only to titles which do not arise out of the Act or any of its provisions; and titles which could riot be established outside the Act but which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a court specified in section 28.

Section 66(1)(0) of the C. P. and Berar Municipalities Act, 1922, empowered the municipalities to impose "a terminal tax on goods or animals imported into or exported from the limits of a municipality". The respondent framed rules for the imposition of terminal tax. The appellant transported bales of cotton from Yeotmal to Nagpur by road and the vehicles carrying the goods passed through the limits of respondent municipality. The goods were neither unloaded nor reloaded at Wardha bat were merely carried across through the municipal area. The respondent collected terminal tax on these goods on the ground that they were exported by the appellant from the limits of the respondent municipality. The appellant disputed his liability to pay terminal tax, and claimed a refund : Held, that the goods which were in transit and were merely carried across the limits of the municipality were not liable to terminal tax. Terminal tax on goods imported into or exported 1103 from the limits of a municipality was payable on goods on their journey ending within the municipal limits or commencing therefrom and not where the goods were merely in transit and had their terminus elsewhere. Terminal tax leviable under section 66(1)(o) must have reference to some activity within the municipal area i.e., the entry for the purpose of remaining within that area or the commencement of the journey from that area. The words "imported into" do not merely mean "bringing into"but comprise something more i.e., incorporating and mixing up of the goods with the mass of the property in the local area. Similarly, the words "exported from" do not merely indicate, "taking out" but have reference to the taking out of goods which ' had become part and parcel of the mass of the property of the local area and will not apply to goods in transit i.e. brought into the area for the purpose of being transported out of it.

These appeals by special leave arose from applications made by the respondents, who were employed as timekeepers in the time office of the Central Railway Workshop and Factory, Parel, Bombay, claiming payment of overtime wages under the (4 of 1936). The case of the respondents was that they were workers within the meaning of section 2(1) of the (LXIII Of 1948) and as such were entitled to overtime wages under section 59 of the said Act. Alternatively, they urged that even if they were not workers within the meaning of section 2(1) of the said Act, they would nevertheless be entitled to overtime wages under the section 59 by reason Of section 70 of the Bombay Shops and Establishments Act, 1948 (Bom. 79 of 1948). The validity of the claim on both the grounds was disputed by the appellant. The Authority under the found that only four of the respondents, who were required to do the work of progress timekeepers, could claim the status of workers within the meaning Of section 2(1) Of the and the rest were merely employees of the workshop, but the Authority accepted the alternative case made by the respond ents and directed the appellant to file a statement showing the overtime wages due to each of the respondents and ordered it to pay the same. Held, that the Authority was right in the view that it took Of section 70 Of the Bombay Shops and Establishments Act, 1948, and its decision must be affirmed. On a proper construction Of section 70 Of the Act it is clear that the first part of the section excludes a factory and its employees from the operation of the Act; but the second part makes the relevant provisions of the applicable to them. The non obstante clause in the section shows that the employees in a factory, although they might not be workers within the meaning Of section 2(1) of the , are entitled to claim overtime wages as provided for by that Act. It is not correct to say that section 4 Of the Bombay Shops and Establishments Act, 1948, has the effect of excluding the operation Of section 70 Of the Act. Section 4 applies only to establishments and not to factories; but even if it applied, to factories 18 138 that cannot materially affect the application Of section 70 which is intended to operate not withstanding the other provisions of the Act. Consistently with its policy, the Act, which provides for overtime wages for employees in all establishments, provides for overtime wages for employees in factories as well by making the relevant provisions of the applicable to them.

In a suit for evicition on the ground of non payment of rent a decree was passed directing the tenant to pay the landlady 's costs, as, by that time, the tenant had paid all the arrears of rent as fixed; but the tenant did not pay or tender the costs. Therefore, the court passed an order of eviction. His appeal, a revision to the High Court, and a review petition to the High Court were all dismissed. In appeal to this Court, HELD : (1) The tenant would be entitled to the protection under section 12(3) (b) of the, Bombay Rent Act, only if he complied with its provisions by paying or tendering not only the arrears of rent but also the costs of the suit. Since the appellant admitted his inability to, comply with the provision, he could not claim protection against eviction. [627 D, G] (2) Assuming that the costs were paid at a later date as alleged by the appellant, that fact was not brought to the notice of the High Court, and therefore this Court will not interfere with the exercise of discretion by the High Court in the set of facts and circumstances presented to the High Court. [628 F G]

The appellant, a company resident in British India, had a cotton mill. The cloth manufactured in the mill was sold in British India as well as native States. For the assess ment years 194546, 194647 and 1947 48, the company was assessed under Section 14(2)(c) of the Income Tax Act, 1922, in respect of certain sums remitted to British India from native States, in addition to the assessment under Section 42(3), deeming 1/3rd of the profit from the sales effected in native States, as having accrued from the manufacturing part of business in British India. The assessee 's contention that 1/3rd of income having been assessed under Section 42(3), as income deemed to have accrued in British India, no further assessment should be made under Section 14(2)(c) was rejected by the Income Tax Officer, the Appellate Assistant Commissioner and the Income Tax Appellate Tribunal. The Tribunal also rejected the assessee 's additional contention that if the remittances made to British India in any year exceeded the amount taxed under Section 42(3), then it was only so much of the excess which could be taxed under Section 14(2)(c). However, it reduced the additions made by the Income Tax Officer and affirmed by the appellate authority, by 1/3rd of such remit tances. On a reference made under Section 66(1), the High Court confirmed the Tribunal 's decision. In the appeal before this Court, on behalf of the appel lantassessee R was contended that where there was a mixed fund, as in the instant case, consisting partly of taxed and partly of untaxed monies, any remittance made should he deemed to have been paid out of that 294 part of the money which had suffered tax and that it was the right of the tax payer to attribute the payment to the taxed money so as to obtain the benefit allowed by the law. Dismissing the appeals, this Court, HELD: 1.1 If there were two funds at the disposal of the assessee one upon which tax had been already levied and another which was liable to be brought to tax a presump tion, in the absence of evidence to the contrary might arise that the remittance made by the assessee in the course of its business was made out of the fund that was already taxed and not out of the fund that remained to be taxed. [297F] Meyyappa Chettiar vs The Commissioner of Income Tax, , 45, referred to. 1.2 The tax payer is given the right of attribution in the way most favourable to himself. In the absence of evi dence to the contrary, it is presumed that payments are made out of income. This abstract principle of attribution is applicable in certain circumstances. Whether it is applica ble in a particular case depends upon the facts of that case and the provisions of the statute. It can be adopted only to the extent that it is consistent with the law and facts. [298E F] Paton (As Penton 's Trustee) vs Commissioners of Inland Revenue, 21 Tax Cases 626 and The Cape Brandy Syndicate vs The Commissioners of Inland Revenue, 12 Tax Cases 359, 366, referred to. In the instant case, on the facts found the assessee did not have two funds, but only one fund composed of taxed and non taxed amounts. As one third of this amount had already been taxed under section 42(3) of the Act, 1/3rd of the remittances to British India in a particular year was held to be exempted from levy. The Tribunal having excluded 1/3rd of the remittances to British India from taxation during a particular year, the High Court was justified in refusing to grant any further relief to the assessee. [297G; 299B]

The appellants and respondents Nos. 3 to 37 herein, were allottees of houses in Chandigarh constructed by the State Government for low paid industrial workers under the Industrial Housing Scheme subsidised by the Central Govern ment. The Labour Inspector, Union Territory, Chandigarh gave them notices in terms of the proviso to, rule 4(3) of the Punjab Industrial Housing Rules, 1956, as amended vide Notification dated November 7, 1972, to. show cause why their allotments should not be cancelled. The income of each of them exceeded Rs. 350/ per mensem, which disenti tled them to retain their allotments. The appellants and the said respondents filed a joint petition in the High Court for a writ to quash the amendment to rule 4, and to restrain the Government from cancelling their allotments and evicting them. The writ petition was dismissed. The appel lants contended firstly, that rule 4(3) was ultra vires the Punjab Industrial Housing Act, 1956 as it took out industri al workers with income exceeding Rs. 350/ p.m. from the scope of section 2(e) of the Act which defines industrial workers; and secondly, that the authority competent to make rules u/s 24 of the Act cannot frame rules having retrospec tive effect, and as the amended rule 4(3) operates retro spectively it is invalid Dismissing the appeal by special leave, the Court, HELD: (1) The allotment of accommodation to an industrial worker is not unconditional but is subject to conditions which can be changed unilaterally by the Government from time to time by altering the rules in exercise of the powers conferred on it under section 24 of the Act. Section 24 specifically empowers the State Government to make rules to provide inter alia for the manner of allotment of accom modation and conditions relating to its occupation. The impugned amendment which squarely falls within the purview of the aforesaid provisions of section 24, was validly made, and was not ultra vires. [331 G H, 331 (a) C] (2) Section 7 of the Act embodies a deeming provision and gives a mandate to treat a person as an unauthorised occupant not only if he ceases to be an industrial worker under the Act, but also if being an allottee, he ceases to fulfil any of the prescribed conditions then in force, including the one relating to the limit of his income, and thereby becomes amenable to action under section 9(2) of the Act. [331(a) A B] (3) The proviso to rule 4(3) clearly shows that the allotment of an industrial worker whose income exceeds Rs. 350/ per mensem is to stand cancelled not from the date when his income started exceeding Rs. 350/ per mensem but on the expiry of one month 's notice in writing of the can cellation. The rule is not intended to operate retrospec tively on industrial workers who had been allotted and were in occupation of industrial houses immediately before, 328 the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972. [331(a) E F] The Court observed The scheme being meant for the benefit of the low paid industrial workers and the number of the houses constructed thereunder being very limited, the Government could legiti mately evolve the method which it did, to disentitle indus trial workers whose monthly income was relatively large, to retain the houses. [331 (a) C D]

il Appeals Nos. 194 of 1956 and 353 of 1958. Appeals by special leave from the judgment and orders dated December 26, 1953 and April 30, 1957, of the Custodian General and Deputy Custodian General of Evacuee Property in Revision Nos. 5055R/Judl/ 1953 and. 1161/R/Judl/1954 respectively. Achhru Ram and T. R. V. Sastri, for the appellants. N. section Bindra and D. Gupta, for respondents. March 21. The Judgment of the Court was delivered by 459 DAS, GUPTA, J. Of these two appeals, one (Civil Appeal No. 194 of 1956) is against the order of the Custodian General of India, declining to interfere with ' the order of the Custodian of Evacuee Property, Orissa, in respect of certain properties claimed by the appellant as his; and the other appeal (Civil Appeal No. 353 of 1958) is against the order of the Deputy Custodian General of India, declining to interfere with the order of the Custodian of Evacuee Property, Madras, in respect of properties situate in Madras, claimed by the same appellant as belonging to him. Though most of the considerations that arise in the two appeals are identical, it will be convenient to take them up one after the other so as not to confuse a clear understand ing of the facts on which these considerations which are all based on question of law arise. The appellant Fazal Bhai Dbala and his brother Abdulla Dhala were partners in a business of hides and skins. A deed of partnership was executed on January 1, 1941, and the firm was registered in the Register of Firms, Cuttack, under section 59 of the Indian Partnership Act. On August 10, 1949, Abdulla Bhai Dhala executed a deed of sale in respect of some immovable properties at Jharsuguda in Orissa, and also certain properties, at Madras, in favour of Fazal Bhai Dhala. The consideration in the document was mentioned as Rs. 85,000 of which Rs. 50,000 was mentioned as the value of the Madras properties and Rs. 35,000 as the value of the Orissa properties. The sum of Rs. 85,000 appears to have been paid in the presence of the Registrar by Fazal Bhai to Abdulla Bhai on August 11, 1949. A deed of dissolution of the partnership was also executed on the following day the 12th August, 1949. It was stated therein that the two partners had agreed "that the said partnership shall stand dissolved as and from 2 11 48 and it has further been agreed that as from that day, 2 11 1948, the said business of Fazalbhoy Dhala & Co shall belong to and be continued and carried on by Fazalbhoy Dliala. " It was also stated that in view of the fact that "accounts of the said partnership have not yet been taken or settled and cannot be taken or 460 settled without much delay and trouble it has further been agreed that Fazal Bhai Dhala shall pay to Abdulla Dhala a sum of Rs. 40,000 in full settlement and satisfaction of all the claims, as partner of Abdulla Bhai Dhala against the partnership, its assets, goodwill etc., in respect of his share therein". A receipt of the sum of Rs. 40,000 was also acknowledged in this deed. On receipt of information that Abdulla Dhala had migrated to Pakistan after transferring his properties to his brother Fazal Bhai Dhala, the Assistant Custodian of Evacuee Property, Sambalpur (Orissa), issued a notice under section 7(1) of the Ordinance XXVII of 1949 to Fazal Bhai Dhala on December 30, 1949, in respect of im movable properties at Jharsuguda including the properties covered by the sale deed of August 10, 1949, and the business in hides and skins under the name of Fazalbhoy Dhala & Co., and certain immovable properties standing in the name of that firm. In reply to the notice, Fazal Bhai contended that Abdulla Bhai was not an evacuee; and that in any case, he, Fazal Bhai, had become the sole proprietor of the business, with all assets and liabilities, with effect from November 2, 1948, when the partnership was dissolved and that while some of the immovable properties as mentioned in the notice had been conveyed to him by a deed of sale by Abdulla Bhai, the rest being assets of the firm of Fazal Bhai Dhala, had vested in him after the dissolution of partnership, he prayed that his "title" in the assets of the firm, and in the immovable properties, mentioned in the notice should be confirmed. The Assistant Custodian held after consideration of the evidence that though the transfer of the properties mentioned in the sale deed was for adequate and valuable consideration it was not at all bona fide: as regards the other properties ' and the hides and skins business itself the Assistant Custodian held that Abdulla Bhai had no interest as the partnership had been dissolved on November 2, 1948. Against this decision Fazal Bhai appealed to the Custodian and prayed that the order of the Assistant Custodian as regards the properties mentioned in Schedule "A" (1) and (II) mentioned in the notice under sub section 1 of section 7 of the Government of India Ordinance 461 No. XXVII of 1949 should be sot aside. The Custodian agreed with the Assistant Custodian, in respect of these properties, and held that these had been rightly declared as evacuee properties. He went further and held that there was no justification for the Assistant Custodian taking a different view as regards the other properties. His conclusion was that "in fact, with regard to these properties also the same amount of mala fides was present and as such these should also be included in the list of evacuee properties"; and that "it is but proper that the entire 8 annas share of the properties mentioned in Schedules A and B of the evacuee Abdulla should be treated as evacuee properties". The Custodian finally ordered: "in consequence of my above decision according to section 6 of the Evacuee Interest Separation Act, the entire properties in Schedules A and B should now be treated as evacuee pro perties and revised action should be taken to notify as ,such under section 7(3) of the Administration of Evacuee Property Act and the appellant be directed to get his 8 annas share in the properties separated in the Court of the Competent Officer". Fazal Bhai moved the Custodian General of India for revision of this order of the Custodian, Orissa. The Custodian General, however, refused to interfere. It is proper to mention at the outset that it is no longer disputed that Abdulla Bhai is an evacuee, though the exact date from which he became such an evacuee does not clearly appear from the record, and that all the immovable properties, which are the subject matter of the appeal, were the assets of the firm Fazalbhai Dhala & Co. Four contentions were urged in support of the appeal. The first contention, and the one to which Mr. Achhru Ram devoted a considerable portion of his argument, was that the Custodian General should have held that the Custodian acted without jurisdiction, and at any rate, irregularly in the exercise of his jurisdiction, if he had any, in interfering with the order passed by the Assistant Custodian that the immovable property and the hides business and the properties mentioned in Sell. A III, that is the properties 462 other than those covered by the sale deed, were not evacuee properties and should be released. Mr. Achhru Ram has pointed out that against the Assistant Custodian 's order in respect of these two items of properties the hides business and the immovable properties in Sch. A III mentioned in the notice, the Custodian 's department had not preferred any appeal, so that the Custodian could not interfere with it, in exercise of his appellate jurisdiction. Learned Counsel then contends that the Custodian 's order in respect of these properties the hides business and the Jharsuguda properties in Sch. A III could not have been passed, in exercise of the revisional jurisdiction conferred on him by section 26 of the Administration of Evacuee Property Act (Act No. XXXI of 1950), as no notice of such intention to examine the records in revision, had been issued to Fazal Bhai. While it is true that the order does not clearly mention that in respect of the hides business and the Sch. A III properties it was being made in exercise of revisional jurisdiction, it is clear that the only jurisdiction the Custodian could exercise, in the absence of any appeal against that portion of the Assistant Custodian 's order would be his revisional jurisdiction under section 26. When we find that the Custodian has made the order it is proper and reasonable to hold that he passed it in the exercise of the only jurisdiction he had viz. , the revisional jurisdiction and the fact that this was not clearly stated in the order can be no ground for holding that he was not exercising revisional jurisdiction. It is quite another matter whether in the exercise of that jurisdiction, he proceeded in accordance with law. Mr. Aehhru Ram contended that under the law, the Custodian was required to issue a notice to the parties concerned before exercising his, revisional jurisdiction. Admittedly, no such notice was issued; and this omission to issue a notice was put by the appellant in the forefront of his grievances both in his petition for revision before the Custodian General and in the application for special leave to appeal to this Court. Turning however to section 26 we find that there is no 463 provision for service of any notice. The section runs thus: "26. Powers of review or revision of Custodian etc. (1) The Custodian, Additional Custodian, or( Authorised Deputy Custodian may at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding under this Act which is pending before, or has been disposed of by, an officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of any orders passed in the said proceeding, and may pass such order in relation thereto as he thinks fit: Provided that the Custodian, Additional Custodian or Authorised Deputy Custodian shall not pass an order under this sub section revising or modifying any order prejudicial to any person without giving such person a reasonable opportunity of being heard: Provided further that if one of the officers aforesaid takes action under this sub section, it shall not be competent for any other officer to do so. . . The proviso secures the requirements of the principles of natural justice when it says that any order prejudicial to any person shall not be passed without giving such person a reasonable opportunity of being heard. No specific provision for service of notice in order that such a reasonable opportunity of being heard be given has however been made by any rule. It goes without saying that in the large majority of cases, the Custodian "will, in order to give the party concerned a reasonable opportunity of being beard, first give him a notice of his intention to examine the records to satisfy himself as to the legality or the propriety of any order passed by the subordinate officer and require such person to show cause if any why the order should not be revised or modified, and then if and when the party appears before him in response to the notice, the Custodian has also to allow him, either personally or through counsel, a reasonable opportunity of being heard. In suitable cases it may be proper and necessary for the Custodian to allow 464 the party concerned even to adduce evidence. There may be cases however where the party concerned is already before the Custodian, so that all that is necessary for the Custodian to do is to inform such party of his intention to examine the records to satisfy him,self whether a particular order should be revised, and then to give him a reasonable opportunity of being heard. There would be no necessity in such a case to serve a formal notice on the party who is already before the Custodian and the omission to serve the notice can be of no consequence. What the law requires is that the person concerned should be given a reasonable opportunity of being heard before any order prejudicial to him is made in revision. If this reasonable opportunity of being heard cannot be given without the service of the notice the omission to serve the notice would be fatal; where however proper hearing can be given without service of notice, it does not matter at all, and all that has to be seen is whether even though no notice was given a reasonable opportunity of being heard was given. A perusal of the Custodian 's judgment makes it reasonably clear that he informed the counsel who appeared on Fazal Bhai. Dhala 's behalf, that he proposed to consider whether the order made by the Custodian in respect of the hides business and the Sch. A III properties had been rightly made and to revise the same, if necessary, after giving a reasonable opportunity of being heard to Fazal Bhai on this point. It is equally clear that the appellant 's advocate was fully heard in the matter. We have no doubt therefore that the requirements of law as embodied in the proviso to section 26(1) of the Act were fully satisfied. The contention that the Custodian acted without jurisdiction or irregularly exercised his jurisdiction must therefore fail. The next contention raised in the appeal is to use the learned counsel 's own words that in view of section 43 of the Indian Partnership Act the partnership stood dissolved from November 2, 1948 and the Custodian had no jurisdiction to declare the "business" to be an evacuee property. It does not appear to have been 465 disputed either before the Assistant Custodian or the Custodian that the partnership of Fazalbhai Dhala & Co., was a partnership at will. The deed of dissolution ' was dated August 1.2, 1949 and it has been found by the Custodian that the deed of dissolution was purposely concluded to provide a common safeguard for properties to remain in the hands of the brothers. The mention of the date November 2,1948 as the date of dissolution cannot therefore be accepted. The firm must however be held to have been dissolved on August 12, 1949 on which date the deed of dissolution was executed. The argument of the learned counsel appears to be that once the partnership business, was dissolved there could be no question of declaring the dissolved partnership as an evacuee property. Once the fact of dissolution is accepted the declaration as regards the business must necessarily be construed as a declaration that the property that remained in Abdulla Bhai on the dissolution of the firm was an evacuee property. It seems to us clear that that was really what is intended to be meant by the order made by the Custodian. A further contention of the appellant is that the transactions evidenced by the two deeds, viz., the sale deed and the dissolution were merely in furtherance of the winding up of the affairs of the dissolved partnership and therefore in determining the validity or otherwise of the transactions it has to be borne in mind that Fazal Bhai could not resist the claim of the other partners to wind up. The story that the dissolution of partnership had taken place earlier and the two deeds were excited later on has not been accepted by the Custodian and we can see no reason to interfere with his conclusion. The deeds of sale were executed prior to the actual dissolution which was effected by the deed of dissolution there is no scope therefore for saying that the sale deed was in the course of the winching up of the affairs of the dissolution of partnership. As regards the deed of dissolution itself it is wholly beside the point whether Abdulla Bhai could have resisted the claim to wind 59 466 up; for the declaration merely is that Abdulla Bhai 's share in the dissolved partnership as it stood on the date of dissolution is an evacuee property. The validity of the dissolution is not touched. It is hardly necessary to add that the dissolution of the partnership did not by itself mean that Abdulla 's share stood transferred to Fazal Bhai any more than that Fazal Bhai 's share stood transferred to Abdulla Bhai. A purported transfer of Abdulla 's share was made by the deed itself. But this having been held to be without good faith, had in view of section 40 of the Evacuee Property Act, no effect. It has to be made clear that the Custodian would not be bound by the statements made in the deed of dissolution as regards the settlement of the accounts of the firm and that the Custodian, in whom the evacuee properties vest will have in respect of the dissolved business all the rights which Abdulla had under sections 37, 46, 47, 48 and other sections of the Partnership Act. There remains for consideration the appellant 's contention that in any case the Custodian acted illegally in the exercise of his jurisdiction in ordering that "the entire properties in Schs. A and B should now be treated as evacuee properties". It appears that the order by the Custodian was made in these terms even though his conclusion was that "the entire 8 annas share of the properties mentioned in Schs. A and B of the evacuee Abdulla should be treated as evacuee properties", in view of the fact that under the original definition of evacuee property in section 2(f) of the Administration of Evacuee Property Act (Act XXXI of 1950) it meant "any property in which any evacuee has any right or interest". This definition has however since been amended and now evacuee property means "any property of an evacuee" instead of "any property in which an evacuee has any right or interest". The legal position after the amendment therefore is that it is only the 8 annas share of Abdulla set out in the Schedule in the Assistant Custodian 's order dated the 28th January, 1950, which is evacuee property. It is therefore necessary to state in clarification of the position that instead of the 467 entire Schedules A and B properties being treated as evacuee property only 8 annas share of these properties which belonged to the evacuee Abdulla should be treated as evacuee properties. With this clarification of the Custodian 's order the appeal is dismissed. There will be no order as to costs. Pi The other appeal C. A. No. 353 of 1958 is in respect of properties in Madras. Fazal Bhai made an application on July 21, 1950 purporting to be under section 40 of the Administration of Evacuee Property Act (Act XXXI of 1950) in reply to a notice which had been issued on him under section 7 of the Act. His case, as in respect of the Orissa properties mentioned earlier, was that the dissolution of the firm took place in November, 1948 and that the final transaction and settlement of accounts was brought about by a deed of sale dated August 11, 1949 in respect of Orissa and Madras pro perties and a deed of dissolution dated August 12, 1949 for a consideration of Rs. 40,000 making in all the entire amount of Rs. 1,25,000 which in this final settlement had been agreed to be paid to Abdulla. He prayed for a declaration that the properties mentioned in the notice be held to have been legally and properly passed to him, and that the transfer in his favour may be confirmed. The Assistant Custodian of Evacuee Property, Madras, accepted Fazal Bhai 's case that the transfer was only a step in the apportionment of the assets of the firm and not a transfer outside the partition of the assets of the firm. He held that the transfer was bona fide and made an order in these terms: "I therefore accept the dissolution of the firm of Fazalbhai Dhala and Company covered by the dissolution deed dated 12 8 49 and confirm the transfer of the immoveable properties covered by the deed dated 10 8 49 under section 40(5) of the . " When this matter came to the notice of the Custodian General of Evacuee Property in the course of the proceedings before him in respect of the Orissa property, he observed: "As for the Madras properties, I notice that Mr. 468 Rathanam 's order was allowed to go unchallenged by the department and as it is not before me, therefore, I am not called upon to express my opinion. " This was on December 26, 1953. It appears that the Custodian General also made a suggestion to the Custodian, Madras, that he might examine the propriety of the order passed by the Assistant Custodian., Madras. Accordingly, the Custodian, Madras, examined the records and issued notice to interested parties including Fazal Bhai Dhala to show cause why the Assistant Custodian 's order should not be set aside in revision. Cause was shown by Fazal Bhai Dhala and thereafter after hearing arguments on his behalf by his Advocate, Mr. T. section Raghavachari, the Custodian held that "the transactions covered by the sale deed dated August 10, 1949 and the deed of dissolution dated the 12th August, 1949 were not bona, fide". Accordingly, he set aside the order of the Assistant Custodian which confirmed the transfer of properties covered by these two deeds. He directed the Assistant Custodian, Madras, to take steps under the Evacuee Property Act in respect of these evacuee properties consequent on the cancellation of the confirmation of transfer. Fazal Bhai 's application to the Custodian General of Evacuee Property, India, for revision of the Custodian 's order was heard by the Deputy Custodian General of Evacuee Property, India, and was rejected. The only additional ground urged by Mr. Achhru Ram in support of this appeal is that the notice issued on Fazal Bhai to show cause why the Assistant Custodian 's order should not be revised did not say anything as regards the Assistant Custodian 's order in respect of the business and so the Custodian had no jurisdiction to interfere with the Assistant Custodian 's order in so far as that order was in respect of the business ' Turning now to the Assistant Custodian 's order we find that in addition to confirming the transfer of immovable properties covered by the deed of August 10, '1949 he also said: " 'I therefore, accept the dissolution of the firm of Fazal Bhai Dhala & Company., 469 covered by the dissolution deed dated August 12, 1949. The Custodian in his order dated July 5, 1954, has held that the transaction covered by the deed of ' dissolution also was not bona fide. It has to be borne in mind that the purported dissolution of the firm in November, 1948, the settlement of accounts recorded in the deed of August, 1949 and the transfer of properties effected were all integral and indivisible parts of the same transaction. While it is true that the notice issued to Fazal Bhai made no reference to the deed of dissolution, it is clear from Fazal Bhai 's own statement filed in response to this notice that he clearly understood that the revising authority would be considering the question of bona fides in respect of the numerous statements about the settlement of accounts in connection with the dissolution of business made in the deed of dissolution. We are satisfied, therefore., that the appellant Fazal Bhai had reasonable opportunity of being heard as regards the bona fides of the transactions mentioned in the deed of dissolution. As we have already mentioned in connection with the other appeal, the fact that the firm stood dissolved with effect from the date on which the deed of dissolution was executed can no longer be disputed. The effect of the Custodian 's order in regard to the deed of dissolution merely is that the transactions mentioned in that deed on the purported basis of an earlier dissolution has been declared to be not bona fide and confirmation was refused of whatever transfers of properties were purported to have been effected by that deed. This appeal, is, therefore,, dismissed with costs. Appeals dismissed.

F, the appellant, and A his brother, were partners in a business of hides and skins. On August 10, 1949, A executed a deed of sale in respect of some immoveable properties in Orissa and Madras in favour of F. A deed of dissolution of the partnership was also executed on August 12, 1949, wherein it was inter alia stated that the partners bad agreed that the said partnership shall stand dissolved as from November 2, 1948. On receipt of information that A had migrated to Pakistan after transferring his properties to his brother F, the Assistant Custodian of Evacuee Property, issued a notice to F under section 7(1) of the Ordinance 27 of 1949 in respect of immoveable properties in Orissa including the properties covered by the sale deed and the business in hides and skins and certain immoveable properties standing in the name of the firm. In reply F contended that he had become the sole proprietor of the business with all assets and liabilities, with effect from November 2, 1948, when the partnership was dissolved 457 and that while some of the immoveable properties as mentioned in the notice had been conveyed to him by a deed of sale by A, the rest being assets of the firm, had vested in him after the dissolution of partnership. The Assistant Custodian held that though the transfer of the properties mentioned in the sale deed was for adequate and valuable consideration it was not at all bona fide; as regards other properties and the hides and skins business itself, A had no interest as the partnership had been dissolved on November 2, 1948. Against this decision F appealed to the Custodian, who held that these properties were rightly declared as evacuee properties and that as regards the transfer of other properties, the same amount of mala fides was present and as such these should also be included in the list of evacuee properties. The appeal to Custodian General was rejected and the appellant moved the Supreme Court by special leave. Four contentions were urged by the appellant: Firstly, that the Custodian General should have held that the Custodian acted without jurisdiction in interfering with the order passed by the Assistant Custodian that the hides business and the properties mentioned in Sch. A III of the notice were not evacuee properties and should be released. Secondly, that as against the Assistant Custodian 's order in respect of the hides business and the immoveable properties in Sch. A III the Custodian Department had not preferred any appeal, so that the Custodian could not interfere with it, in exercise of his appellate jurisdiction. The Custodian 's order in respect of these properties could not have been passed, in exercise of the revisional jurisdiction conferred on him by section 27 of the Administration of Evacuee Property Act as no notice of such intention to examine the records in revision had been issued to F. Thirdly, once the partnership business was dissolved, there could be no question of declaring the dissolved partnership as an evacuee property, in view of section 43 of the Indian Partnership Act. Fourthly, the transaction evidenced by the two deeds, viz., the sale deed and the dissolution were merely in furtherance of the winding up of the affairs of the dissolved partnership and therefore in determining the validity or otherwise of the transactions, F could not resist the claim of the other partner to wind up. Held, that where the Custodian had made an order against that portion of the order of the Assistant Custodian which was not before him in appeal it must be taken to have been passed in the exercise of the Custodian 's revisional jurisdiction and the mere fact that this was riot expressly stated in the order could 58 458 be no ground for holding that he was not exercising his revisional jurisdiction. It was quite another matter whether in the exercise of the revisional jurisdiction, he proceeded in accordance with law. The Custodian in exercising his revisional jurisdiction must give the party concerned a reasonable opportunity of being heard before any order prejudicial to him is made in revision. If this reasonable opportunity of being heard cannot be given without the service of notice, a notice must be served for otherwise the omission to serve the notice would be fatal, even though section 26 of the Administration of Evacuee Property Act did not specifically provide for service of notice by the Custodian. But in cases where the party affected is before the Custodian and has knowledge of the proceedings before him and is heard, the failure to issue a formal notice is immaterial or does not vitiate the order passed. Once the fact of dissolution is accepted, the declaration as regards the business must necessarily be construed as a declaration that the property that remained in the evacuee on the dissolution of the firm was evacuee property. Held, further, that where a deed of transfer by an 'evacuee ' was without good faith, section 40 of the Administration of Evacuee Property Act would come into operation, making the transfer of no effect and in the case of a firm its property on dissolution would become an evacuee property from the date of the execution of the deed of dissolution of the partnership and vest in the Custodian with all the rights under the provisions of the Partnership Act and the Custodian was not bound by the statements made in the deed of dissolution as regards the settlement of account. In the present case the Custodian did not act without juris diction or exercise his jurisdiction irregularly.

This appeal to the Supreme Court was from a reversing decree of the Bombay High Court in a suit for possession of certain immovable properties. The suit was dismissed by the trial court on 20 12 1946, the value of properties being found to be over Rs. 10,000. The decree of the High Court allowing the plaintiff 's claim was passed on the 8th November 1949. The defendants applied to the High Court for leave to appeal to the Federal Court on 6 1 1950 which was granted on 1 10 1951. One of the questions for determination was whether article 133 of the Constitution applied to the case and the appeal was competent to the Supreme Court. Held, that article 133 did not apply as it relates expressly to appeals against any judgment, decree or final order in a civil proceeding of a High Court in the "territory of India". Held further that on the date of the decree of the High Court, the defendants had a vested right of appeal to the Federal Court as the properties were of the requisite value and on 6 1 1950 a certificate of leave to appeal was bound to be granted. Held also that the appeal was competent to the Supreme Court by virtue of the provisions of article 135 of the Constitution as the jurisdiction and powers in relation to the matter in dispute were exercisable by the Federal Court immediately before the commencement of the Constitution under an existing law inasmuch as the Federal Court had jurisdiction to entertain and hear appeals from a decree of a High Court which reversed the lower court 's decree as regards properties of the value of more than Rs. 10,000. The construction contended for by the respondent that the jurisdiction was exercisable under article 135 by the Federal Court only if the matter was actually pending before the Federal Court and that it could not be said to be pending until the appeal is declared admitted under Order XLV of the Civil Procedure Code is 873 too narrow and does not give full and proper scope to the meaning of the word 'exercisable ' in the Article.

Three separate suits for eviction by the appellant were brought against the three respondents within the framework of the Delhi & Ajmer Rent Control Act and were based on the provisions of section 13(g) for the bona fide requirements of rebuilding. Terms of compromise which were substantially in accordance with the provisions of section 15 of the Act were put in by the parties and decrees were passed in the suits, under which the premises had to be vacated by the respondents on a specified day, which condition the respondents failed to observe and actually handed over the possession of the premises in suit at a later date. On completion of the building the respondents filed an application under section 15 of the Act for their being put into possession. The High Court inter alia held that though section 15 of the Act was not applicable to the proceedings yet the respondents could impose the terms of the decree and the proceedings could be treated as execution proceedings for enforcing the said terms. The appellants challenged the judgments of the High Court and contended that on the facts of the case and the circumstances, the decrees in suit under section 13(1) proviso (d) shows that the order was passed and a decree made in accordance with the terms of section 15 of the Act and further it was significant that the respondents them selves had made the application to the Court under section 15 of the Act. The respondents submitted that the decree was not one under section 15 of the Act because the decree was based on a compromise and the time for giving possession was not. of the essence of the contract : Held, that as the tenant respondents did not deliver posses sion of the premises to the landlord appellant on or before the dates specified in the decree, the provisions of section 15 (3) of the Delhi and Ajmer Rent Control Act (38 of 1952) were not available to them and they were not entitled to be put in possession.

The appellant, who was the decree holder, applied for the execution of the decree. The Sub Divisional Officer, Military Engineering Service, was in possession of some movable property of the judgment debtor. The Court ordered attachment under 0. XXI, r. 46(1), Civil Procedure Code by prohibiting the Sub divisional Officer from handing over the property to the judgment debtor. Thereafter, in stead of following the proper price(lure which was to sell the property under O.XXI, r. 64 and then pass an order for its delivery under O.XXI, r. 79(2), the Court ordered the Sub divisional Officer to produce the property, and, when it was not produced, proceeded under section 145 of the Code treating the Union of India as the principal judgment debtor. HELD: Section 145 of the Code was not applicable to the cage. That section only applies when a person becomes liable as a surety and the execution Court was wrong in holding that the Sub divisional Officer became a surety simply because attachment had been made by the prohibitory order under O.XXI, r. 46(1). [209 H, 210 B C]

The plaintiff appellant instituted a suit against the defen dants respondents for the recovery of a sum of Rs. 57,000/ . The appellant was holding permanent lease hold rights over a certain colliery. On January 31, 1949 the appellant granted a sub lease of the colliery to respondent No. 4 for a term of 5 years. He joined respondents 1, 2 and 5 as defendants to the suit on the ground that these three persons along with respondent No. 4 formed a partnership firm known as Saurashtra Coal Concern which was joined in the suit as defendant No. 5. The appellant 's case was that respondent No. 4 was a benamidar for the partnership firm and, therefore, all the respondents were liable for the claim. Respondents 1 and 2 denied the appellant 's claim totally. According to them, respondent No. 4 took the sub lease in his personal capacity and not on behalf of the other respondents. Respondents 4 and 5 who are father and son, admitted the appellant 's case that the lease was obtained by respondent No. 4 on behalf of the partnership firm. The trial court passed the decree against all the respondents. On appeal, the High Court set aside the decree as against respondents 1 to 3 but affirmed the same against respondents 4 and 5. Held: that Section 22 of the , clearly provides that in order to bind a firm by an Act or an ins trument executed by a partner on behalf of the firm, the Act should be done or the instrument should be executed in the name of the firm, or in any other manner expressing or implying an intention to bind the firm. The sub lease was not executed in the name of the firm. On the facts of this case it was held that in obtaining the sub lease, the parties to it did not intend to bind the firm by that transaction, and therefore the decree should be limited only against respondents 4 and 5. Karmali Abdullah Allarakia vs Vora Karimji Jiwanji, I.L.R. , Gouthwaite vs Duckworth, (1810) 12 East 421, Mathura Nath Choudhury vs Sreejukta Bageswari Rani, 46 C.L.J. 362, Pandiri Veeranna vs Grandi Veerabhadi aswami. T.L.R. , Lakshmishankar Devshankar vs Motiram Vishnuram, 6 B.L.R. 1106 and Gordhandas Chhotalal Seth v, Mahant Shri Raghubirdasi Gangaramji, 34 B.L.R. 1137, distinguished.

In the course of consolidation proceedings under the U.P. Consolidation of Holdings Act, 1953, questions arose amongst the members of a family regarding the title to certain properties. Respondent No. 1 filed objections to the original entries in respect of lands in Khata No. 72 and 73 on the basis that he was the son of Chhota, one Of the sons of Teja, the common ancestor. Similarly, respondents Nos. 2 and 3 filed objections claiming shares in the lands in Khata No. 73 on the ground that the said holding was jointly acquired but was recorded in the name of Nanha in a repre sentative character. The appellant contested the claims of respondents Nos. 1, 2 and 3. The objections were considered by the Consolidation Officer, who held that respondent No. 1 was the son of Heera alias Chhota, brother of Nanha, and granted him his share in certain plots of the Khata No. 73. The appellant as well as respondents Nos. 2 and 3 fried appeals against the said order of the Consolidation Officer. The Assistant Settlement Officer (Consolidation) allowed the appeal of the appellant and directed that lands in Khata No. 73 will be continued in the name of the appellant alone. The respondents went in revision against the order of the Assistant Settlement Officer. The Deputy Director of Consolidation allowed the revision of respondent No. 1 in full in respect of share in Khata No. 72. As regards plots in Khata No. 73 the Deputy Director held that the name of Nanha was entered only in a representative capacity. The appellant filed a writ petition in the High Court to challenge the decision of the Deputy Director of Consolida tion which was dismissed in limine. 185 The appellant, thereafter, 'filed the civil suit for a declaration that the order of the Deputy Director of Consol idation was without jurisdiction. Contesting the suit, respondent No. 1 raised a preliminary objection that the suit was barred by section 49 of the Act. The Munsiff decid ed the preliminary objection in favour of respondent No. 1. The Additional District and Sessions Judge in appeal, af firmed the order of the Munsiff. The second appeal filed by the appellant was dismissed by the High Court in limine. Before this Court, it was contended on behalf of the appellant that the bar of section 49 of the Act was not applicable to the suit of the appellant because the orders passed by the consolidation authorities were without juris diction inasmuch as the consolidation authorities could not decide questions as to title to the lands as well as the question relating to the parentage of respondent No. 1 which the civil courts alone could decide. Dismissing the appeal, this Court, HELD: (1) The language used in section 49 of the U.P. Consolidation of Holdings Act, 1953 is wide and comprehen sive. Declaration and adjudication of rights of tenure holders in respect of land lying in the area covered by the notification under section 4(2) of the Act and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, would cover adjudication of ques tions as to title in respect of the said lands. Accordingly, the jurisdiction of the civil or revenue courts to entertain any suit or proceeding with respect to rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under the Act has been taken away. [189D E; C] Suba Singh vs Mahendra Singh and Others, ; Gorakh Nath Dube vs Hari Narain Singh, , referred to. (2) In the instant case, respondent No. 1 was claiming an interest in the land lying in the area covered by the notification issued under section 4(2) on the basis that he was the son of Chhota, brother of Nanha, and that the lands were recorded in the name of Nanha in a representative capacity on behalf of himself and his other brothers. This claim which fell within the ambit of section 5(2) had to be adjudicated by the consolidation authorities under the Act, and the jurisdiction of the Civil Court to entertain the suit in respect of the said 186 matter was expressly barred by section 49 of the Act and the suit of the appellant was rightly dismissed on that ground. [194C D]

In July, 1940 the plaintiffs father leased out the building of which he was the owner, to the defendant on a monthly rent of Rs. 950 for running a restaurant. Even after the expiry of the period of lease in July, 1943 the defendant continued to be in possession of the building. By virtue of the Madras Non residential Buildings Rent Control order, 1946 the defendant became a statutory tenant and under the order fair rent was fixed at Rs. 1680 p.m. In 1949 the 1946 order was replaced by the Madras Buildings (Lease and Rent Control) Act. On the death of his father in 1955 the plaintiff became the owner of the building. The 1949 Act was repealed and replaced by the Tamil Nadu Buildings (Lease and Rent Control ) Act, 1960 (the Principal Act). Section 30(iii) of the Principal Act provided that it was not applicable to non residential buildings, the rental value of which, according to the assessment of the Corporation of Madras, exceeded Rs. 400 p.m. Even so the defendant continued to be in possession of the building. Since the building was not governed by the Principal Act the plaintiff issued notice to the defendant to quit and instituted a civil suit in the City Civil Court on March 2, 1964 for eviction and damages. In the meantime in June, 1964, by an amendment Act, the exemption contained in section 30 of the Principal Act in respect of non residential buildings was withdrawn so that from then on non residential buildings with a monthly rent of Rs. 400/ and above were also governed by the Principal Act. Sec ion 3 of the Amending Act also provided that proceedings for eviction of the tenants of such non residential buildings instituted in civil courts should be treated as having abated. In view of the amendment in December 1964 the City Civil Court dismissed the plaintiff s suit as having abated. Thereupon the plaintiff filed an application under O. IX, r. 9 of the Code of Civil Procedure to set aside, its order dismissing the suit as having abated. This application was allowed. The defendants filed additional written statements in the City Civil Court raising the plea that the suit had actually abated by virtue of section 3 of the Amending Act. In the meantime as a result of the plaintiff s application under section 24, Code of Civil Procedure the High Court withdrew the suit to its file (on the death of the original defendant, defendants 2 to 10 were impleaded as his legal representatives). On the issue whether the suit had abated on June 10, 1964 by virtue of section 3 of the Amending Act the trial judge of the High Court refused to record a finding and disposed of the suit as if it was a fresh suit after the death of the 876 original defendant. He passed a decree for possession and damages for use and occupation. On appeal by the defendants the Division Bench of the High Court held that from March 1, 1964 the original defendant was a trespasser, that he was not entitled to the benefit of the Principal Act, that with the coming into force of the Amending Act the building itself was outside the scope of the principal Act, that section 3 of the Amending Act did not apply to the suit and so it did not abate on June 30, 1964 and that on the death of the original defendant, defendants 2 to 10 were not entitled to the protection against eviction under the Principal Act as amended in 1973. Allowing the appeal, ^ HELD: Section 3 of the Amending Act was applicable to the suit as it was a proceeding instituted in the City Civil Court on the ground that the building was exempt from the provisions of the Principal Act by virtue of section 30(iii) thereof although no express allegation was made in the plaint to that effect. [891 B] 1. (a) The view of the Division Bench that section 3 of the Amending Act was not applicable to this case was erroneous in the absence of a contention by the plaintiff that section 3 was unconstitutional. It was not for the court to ask whether there was any justification for the legislature to make a contrary provision in respect of the suits of the present nature. There was every justification for enacting section 3 in order to give protection to the tenants against whom suits for eviction had been filed for buildings. which were brought within the scope of the Principal ACT by deleting cl. (iii) of section 30 of the Principal Act. [886G, 887B] (b) In the context in which section 3 of the Amending Act was enacted it could not be said that it was not possible to identify the proceedings to which that provision referred. In P. J. Gupta 's case this Court held that a proceeding which had been instituted on the ground that a non residential building was exempt from the provisions of the Principal Act by virtue of section 30(iii) and was pending on the date of publication of the amendment in the official gazette would abate but did not consider the type of cases which would fall within the scope of 3 of the Amending Act [888A B, 889G H] P. J. Gupta & Co. vs K. Venkatesan Merchant & ors. ; ; held inapplicable. (e) The words "instituted on the ground that such building or part was exempt from the provisions of the Principal Act by virtue of cl. (iii) of section 30 of the Principal Act" should be construed in the context in which they appeared as referring to a proceeding which had been instituted in the light of section 30(iii) of the Principal Act which granted exemption in respect of the buildings refer red to therein from the operation of the Principal Act. Any other construction would defeat the object of the Amending Act. [890E F] In the instant case the original plaint was filed on the basis that The tenancy had been terminated with effect from the expiry of February 29, 1964. The plaintiff prayed for the eviction of the defendant damages for use and occupation and not the fair rent fixed under the Rent Control law. The suit could be filed only because of the exemption contained in section 30(iii) of the Principal Act 877 because in the absence of such exemption no effective decree for ejectment could be passed by the City Civil Court in view of section 10 of the Principal Act. [890 G H] 2. The original defendant was not a trespasser in possession of the premises after June 10, 1964. He became a statutory tenant of the premises and could not be evicted from them except in accordance with the procedure specified in the Principal Act. The position would not have been different even if a decree for eviction had been passed against him before June 10, 1964 and the decree had not been executed or satisfied in full on that date [894 C D] 3. (a) The building in question was a building within The meaning of that expression in section 21 '>) of the Principal Act on the date when section 3 of the amending Act came into force. [896 F G] (b) The view of the Division Bench that the suit property was not a "building" within the meaning of section 2(2) on the ground that there was no lease in force and hence it was not let and that on that date the plaintiff had no intention to lease it and therefore it was not to be let was erroneous. A definition clause does not necessarily apply in all possible contents in which the word may be found. The opening clause of section 2 of the Principal Act suggests that any expression defined in that section should be given a meaning assigned to it therein unless the context otherwise requires. [896 B C] 4. The original defendant became entitled to The protection of the Principal Act on June 10, 1964 and he could be evicted from the building only after an order was made by the Rent Controller. The High Court did not pass an order the suit had abated on June 10, 1964 till the death of the original defendant on January 15, 1968. As a result of the proceedings instituted by one or the other of the parties the case was treated as pending although in law it was not open to the Court to proceed with it after 10. [896G 897A] 5. It has not permissible for the trial court to treat the proceeding which had been instituted against the original defendant prior to June 10, 1964 as a live proceeding which could be converted into fresh suit instituted against defendants No. 2 to 10 after the death of the original defendant. An amendment of the plaint by inclusion of a new prayer or by addition of new parties can be made only where in the eye of law a suit is pending before a Court. When the suit filed on March 2, 1964 stood terminated with the coming into force of the amending Act on June 10, 1964 there was no plaint in a live suit which could be amended by the addition of new parties and the inclusion of a new prayer. Therefore the addition of parties which took place after the death of the original defendant and the amendment of the plaint in 1973 requesting the court to pass a decree against defendants 2 to 10 who were not ' parties to the suit prior to June 10, 1964 on a cause of action which accrued subsequent to January 15, 1968 were without jurisdiction. [898A D] B. Banerjee vs Anita Pan, ; ; held inapplicable.

The appellant company filed a suit against the respondents in the court of the Senior Subordinate Judge, Gurgaon, for the specific performance of an agreement for the purchase of ' certain land by the company from the respondents. Part of the land in question became the subject of proceedings under the Land Acquisition Act, 1894, and dispute relating to compensation was referred to the Court of the District Judge. The court fixed the compensation at over Rs. 2 Iakhs. A dispute as to apportionment of the compensation was also. referred under section ' 30 of the Land Acquisition Act to the court but the proceedings were stayed by the Additional District Judge, pending decision of the suit for specific performance by the Senior Subordinate Judge. The suit was dismissed and thereupon the respondents applied to the Additional District Judge for continuation of proceedings under section 30 and for payment of compensation to them. The appellant company resisted the application on the ground that it had filed an appeal in the High Court against the decree of the Senior Subordinate Judge. The Additional District Judge after hearing both parties stayed the proceedings under section 30 pending disposal of the company 's appeal by the High Court. On a revision application under section 115 C.P.C. filed by the respondents, the High Court ordered on March 18, 1969 that a sum of not more than Rs. 1,78,000 out of the compensation for the acquired land be paid to the respondents who must undertake not to sell the rest of the land during the pendency of the appeal. The Additional District Judge after hearing the parties judicially interpreted the order to. mean that Rs. 1,78.000 were to be paid to the respondents after the conclusion of the proceedings under ' section 30. The respondents again moved the High Court with an application under section 151/141 C.P.C. for a clarification of its earlier order whereupon by order dated May 8, 1969 the High Court ordered immediate payment. The company challenged the High Court 's orders dated March 18, 1969 and May 8, 1969 in an appeal before this Court. It was contended on its behalf that in making its first order the High Court exceeded its jurisdiction u/s 115 C.P.C. and in making the clarificatory order ex parte it violated the rules of natural justice. HELD: (i) The position is firmly established that while exercising its jurisdiction under section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) o.f this section on their plain reading quite clearly did not cover the present case because it had not been shown that the learned Additional Sessions Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) of the section also did not apply 369 to the present case. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law of to material defects of procedure. affecting the ultimate decision, and not to errors of either fact or of law, after the prescribed procedure has been complied with. [375 D G] The High Court had not adverted to the limitation imposed on its power under section 115 of the Code and had treated the revision as if it was an appeal. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal could hardly justify interference on revision under section 115 of the Code when there was no illegality or material irregularity committed by the Additional Sessions Judge in his manner of dealing with the question. The order of the High Court dated March 18, 1964 had therefore to be set aside. [375 F H] Rajah Amir Hassan Khan vs Sheo Baksh Singh, I I Indian Appeals 237: Balakrishna Udayar vs Vasudeva Aiyar, 44 Indian Appeals 261; Keshav Deo vs Radha Kissan. ; applied. (ii) The ex parte order dated May 8 1969 was equally difficult to sustain. The High Court had proceeded to make an order virtually and in effect reversing the judicial order made by the learned Additional Judge in favour of the appellant. This could, more appropriately be done only on appeal or revision after notice to the party affected and not on an application under sections 151/141 C.P.C. Such an application in the. circumstances was misconceifed. [376 C, F]

91 of 1956. Petition under article 32 of the Constitution of India for enforcement of fundamental rights. section P. Sinha, Shaukat Hussain, E. Udayarathnam and section section Shukla, for the petitioners. N. section Bindra, R. H. Dhebar and T. M. Sen, for the respondents Nos. 1 to 4. 1961. March 22. The Judgment of the Court was delivered by 532 SARKAR, J. One Abdul Hai died about 1943. He left certain immovable properties. He had three wives and children by each. One of his wives predeceased him. On his death the wives and children, surviving him, succeeded ' to these properties in certain shares. One of the surviving wives and a daughter died subsequently. It appears that the remaining wife of Abdul Hai and his six children by her, went to Pakistan but the time when they did so does not appear. It is not however disputed that they had become evacuees and their shares in the properties could be properly declared evacuee property. A notice under section 7 of the was in fact issued for the purpose of declaring these persons evacuees and their shares in the properties, evacuee property. Proceedings were taken pursuant to the notice and on August 14, 1952, an order was made declaring the migrants evacuees and a 4/7th share in certain properties, evacuee property as belonging to them. Thereafter other proceedings were taken under , and an order was made on March 23, 1954, under section 11 of this Act vesting the entirety of the properties referred to in the order of August 14, 1952 in the Custodian of Evacuee Properties, Bhopal. This petition under article 32 of the Constitution challenges the validity of the orders of August 14, 1952, and March 23, 1954, as violating the petitioners ' fundamental right to hold property, to wit, their shares in the properties covered by the orders. It is presented by the surviving children of Abdul Hai by his two deceased wives, excepting Abdul Aziz. Abdul Aziz however has been made a respondent to the petition but is not opposing it. It is not in dispute that the petitioners and Abdul Aziz never became evacuees and are entitled to undivided shares in the properties declared to have vested in the Custodian in their entirety. The petition is opposed by the other respondents, namely, the Government of India and various officers concerned with the Acts, and it will be convenient to describe them alone as the respondents. 533 The first question raised is as to the validity of the order dated August 14, 1952, made under the Act of 1950. It is said that the order is a nullity as the notice under section 7 of this Act on which it was based, was bad for the reason that it was issued to Abdul Aziz who was, admittedly, not an evacuee. It seems to us that it is unnecessary to decide this question for it is not a matter with which the petitioners are in any way concerned. The proceedings under that Act did not purport to affect their interest in the properties and they cannot, therefore, challenge the order made under it. Further, as we have earlier said, it is not in dispute that the shares of the surviving wife of Abdul Hai and her children in the properties could properly be declared evacuee property under the Act since they had migrated to Pakistan. The order of August 14, 1952, only declared what purported to be their shares, to be evacuee property. By such a declaration no right of the petitioners is affected. The second question raised concerns the order of March 23, 1954, made under the Act of 1951. This order vests the entirety of certain properties left by Abdul Hai including the petitioners ' shares in them, as evacuee property and, therefore, clearly affects the petitioners. We think that the petitioners ' grievance against this order is of substance and the order as it stands cannot be sustained. This order was made under section 11 of the Act of 1951. This Act was passed "to make special provisions for the separation of the interests of evacuees from those of other persons in property in which such other persons are also interested": see the preamble to the Act. It creates an officer called the "Competent Officer" for effecting such separation. The disputed order was made by such an officer. Section 2(d) defines "composite property", which, so far as is material, is in these terms: section 2(d). "composite property" means any property which, or any property in which, an interest has been declared to be evacuee property or has vested in the Custodian under the (XXXI of 1950) and 534 (i) in which the interest of the evacuee consists of an undivided share in the property held by him as a co sharer or partner of any other person, not being an. evacuee; or (ii) in which the interest of the evacuee is subject to mortgage in any form, in favour of a person, not being an evacuee; or (iii) in which the, interest of a person, not being an evacuee, is subject to mortgage in any form in favour of an evacuee; or. . Section 2(b) defines a "claim" as follows: section 2(b): "Claim" means the assertion by any per person, not being in evacuee, of any right, title or interest in any property (i) as a co sharer or partner of an evacuee in the property; or (ii) as a mortagagee of the interest of an evacuee in the property; or (iii) as a mortgagor having mortgaged the property or any interest therein in favour of an evacuee;. . . Section 6 authorises a Competent. Officer to issue, "for the purpose of determining or separating the evacuee interest in a composite property", notices requiring persons claiming interest in any composite property, to submit their claims to him. Section 7 deals with the procedure, the form and the time of making the claims. Section 8 lays down that on receipt of a the Competent Officer shall make an enquiries in the manner provided and pass an order determining the interest of the evacuee and the claimant in the property. It, also provides that the order shall contain, among others, the following particulars: (1) in any case where the evacuee and the claimant ire co sharers or partners, their respective shares in the property and the money value of such shares; (2) in any case where the claim is made by a mortgagor, the amount due to the evacuee; and (3) in any case, where the claim is made by a mortgage, the amount due under the claim in accordance with the provisions of section 9. 535 Sub section (2) of section 8 is in these terms: section 8(2): Where the Custodian under the (XXXI of 1950), has determined that the property in question or any interest therein is evacuee property, the decision of the Custodian shall be binding on the competent officer: Provided that nothing contained in this sub section shall debar the competent officer from determining the mortgage debt in respect of such property or any interest therein or from separating the interest of the evacuee from that of the claimant under section 10. Claims by mortgagees over evacuee properties are dealt with by section 9. Section 10 gives the Competent Officer power to separate the interests of the evacuee from those of the claimant. It provides that the Competent Officer "in particular may: (a) in the case of any claim of a co sharer. (i) direct the custodian to pay to the claimant the amount of money assessed in respect of his share in the composite property or deposit the same in a civil Court having jurisdiction over such property and deliver possession of the property to the Custodian and the claimant may withdraw the amount in deposit in the civil Court; or (ii) transfer the property to the claimant on payment by him of the amount of money assessed in respect of the share of the evacuee in the property; or (iii) sell the property and distribute the sale proceeds, thereof between the Custodian and the claimant in proportion to the share of the evacuee and of the claimant in the property; or (iv) partition the propert y according to shares of the evacuee and the claimant and deliver possession of the shares allotted to the evacuee and the claimant to the Custodian and the claimant respec tively;. . Then comes section 11 which, in certain circumstances, vests the entire property in a Custodian. It was under this section that the order now being considered 536 was passed and it will be convenient to set it out later. It is said on behalf of the respondents that notices under section 6 of the Act of 1951, both general and special,. the latter addressed to the petitioners, asking for submission of claims in respect of the properties had been issued but no claim was submitted by any one. The learned counsel for the respondents produced a copy of one of such notices which was in ' the form set" out below: "Subject: 105.10 acres agricultural land and one house in village Junapari Tahsil Berosia (4/7 share of Abdul Aleem etc. evacuees) To Shri Abdul Aziz and his two brothers village Junapani (Tahasil Berosia). FORM 'C ' WHEREAS information has been received that you have an interest in the composite property described in the Schedule hereto annexed. AND WHEREAS the evacuee interest in the said property is to be separated from other interests. I, NOW, hereby call upon you to submit your claim to me in the prescribed 'form within sixty days from the date of this notice. " Abdul Aleem mentioned in this notice is one of the children of Abdul Rai who had evacuated to Pakistan. The order that was passed by the Competent Officer under section 11 of the Act of 1951, on March 23, 1954, recited that notices inviting claims were issued but no claims had been submitted, and then concluded, "So it is proved that no claim is filed deliberately though the individual notice has been served by post under a postal certificate. The whole Composite property listed by Custodian shall vest free of encumbrances and liabilities in the Custodian Bhopal U/s 11 of the . " It is the validity of this order that is questioned by the petitioners. They admit that they filed no claims but they deny that any notice was served on them 537 and also otherwise challenge its validity. We do not think it necessary to go into the question of the validity of the notice for it seems to us that even if there was valid notice, the order challenged cannot be upheld. The question is, was the order justified by section II of the Act of 1951? That section so far as relevant reads thus: section 11(1). Where in respect of any property, notice under section 6 is issued but no claim is filed or found to exist or where any claim in respect of such property is found to exist and the competent officer separates the evacuee interest therein under section 10, the whole property, or, as the case may be, the evacuee interest in the property thus sepa rated shall vest in the Custodian free from all encumbrances and liabilities and any payment, transfer or partition made or effected under section 10, in satisfaction of any claim in respect of the property shall be a full and valid discharge of all claims in respect of the property. The respondents contend that the notice mentioned in the section having been issued and no claim pursuant thereto having been filed, the whole property had to vest in the Custodian and therefore the order of the Competent Officer was valid. This contention seems to us to proceed on a misreading of the section. Notices under section 6 are issued "for the purpose of determining or separating the evacuee interest in a composite property". The object of the notice can therefore be one or other of two things, namely, for determining the evacuee interest or for separating the evacuee interest, in a composite property. These are two entirely different things and are so treated in the Act as will appear from the definition of composite property and sections 8, 9 and 10. The question of determining the evacuee interest arises when the interest is either a mortgagor 's or mortgagee 's interest in property or an undivided share in property the extent of which is not known. The determination is then made as provided in cls. (b), (c) and (d) of section 8(1), ascertaining the quantum of the interest as mortgagor, 68 538 mortgagee or co sharer, as the case may be. A question as to separation of interest can arise, of course, only when that interest is known. This is done under section 10 of the Act. A case of separation may arise, for example, when the evacuee is found to have a definite undivided share in property. Now, an evacuee may be found to have a definite undivided share as a result of enquiry under section 8 of the Act of 1951 or under the order made by the Custodian under a. 7 of the Act of 1950. In the present case the Custodian had held under section 7 of the Act of 1950 that the evacuees were only entitled to 4/7th share in certain properties. This will appear from the notice under section 6 of the Act of 1951 which we have earlier set out. Section 8(2) says that the declaration by the Custodian under the Act of 1950 that any interest in property is evacuee property shall be binding on the Competent Officer, but this shall not prevent him from separating under section 10, the interest of the evacuee from that of the claimant. In the present case the notice was expressly for the purpose of separation. We have to read section 11 of the Act of 1951 in the light of the preceding sections. We have also, in doing so, to remember that the object of the Act of 1951 is not to vest in the Custodian property which was not evacuee property but to vest in him only the evacuee interest in property after determining or separating, as the case may be, that interest from the interests of other persons in the manner laid down. It has further to be remembered that it has been held by this Court that no property vests in the Custodian unless proceedings under section 7 of the Act of 1950 had been taken: Ebrahim Aboobaker vs Tek Chand Dolwani (1). Section 11 therefore cannot vest in the Custodian any property which was not evacuee property; it cannot have the effect of making the entire property vest in the Custodian as evacuee property where the order under section 7 of the Act of 1956 held that a certain share in it only was evacuee property. It would follow that when section 11 makes the whole property vest in the Custodian in the absence of a claim (1) ; 539 having been filed or such claim having been filed but found to be unsustainable, it deals with a case where the claim is as mortgagor or mortgagee or to an undivided share in a property where the order under section 7 of the Act of 1950 has declared the whole property to be evacuee property. If it were not to be so read, then it would enable property admittedly not belonging to an evacuee, to vest in the Custodian. Such could not have been the intention of the Act and would be against the decision of this Court earlier referred to. The section therefore does not warrant the order of March 23, 1954, which purported to vest the entire properties in the Custodian though the Order under B. 7 of the Act of 1950 found only a four seventh share therein to be evacuee property. We think it right to point out that it has not been contended on behalf of the respondent that the petition was .not maintainable. We have therefore not gone into that aspect of the case and are not to be understood as having decided any question as to the maintainability of the petition. In the result we get aside the order of March 23, 1954. There will be no order as to costs. This order will not however prevent proper steps being taken for the separation of the evacuees ' interest in the properties from the rest in accordance with the Act of 1951 or other provisions of law. Petition allowed.

A Muslim died leaving some property and several heirs. Some of the heirs became evacuees and their 4/7th share in the property was declared under section 7 of the , to be evacuee property. There after, proceedings were taken for the separation of the interest of the evacuees, but as none of the claimants appeared, the Competent Officer passed an order under section II of the , vesting the entire property in the Custodian. Held, that the order vesting the entire property in the Cus todian was illegal. The share of the evacuees had been determined as 4/ 7ths and the Competent Officer was only required to separate it. Section II could not vest in the Custodian any property which was not evacuee property. This section deals only with cases where the whole property has been declared to be evacuee property and the claim is as mortgagor or mortgagee or to an undivided share in the property. In such cases in the absence of a claim having been filed or having been filed and found unsustainable, section II vests the whole property in the Custodian. Ebrahim Aboobaker vs Tek Chand Dolwani, ; , referred to.

In the State of Madhya Pradesh vs V. P. Sharma, ; this Court held that once a declaration under section 6 of the Land Acquisition Act 1894 was made the notification under section 4(1) of the Act was exhausted and there could be no successive notifications under section 6 with respect to land in a locality specified in one notification under section 4(1). Relying on the above judgment the present writ petitions were filed in order to challenge successive notifications under section 6 following a single notification under section 4(1) in respect of land belonging to them. Meanwhile in order to meet the situation created by the judgment in V. P. Sharma 's case the President of India promulgated the Land Acquisition (Amendment and Validation) Ordinance (1 of 1967). The Ordinance was later followed by the Land Acquisition (Amendment and Validation) Act 1967. Section 2 of this Act purported to amend section 5 A of the principal Act by allowing the making of more than one report in respect of land which had been notified under section 4(1). Section 3 purported to amend section 6 of the principal Act by empowering different declarations to be made from time to time in respect of different parcels of land covered by the same notification under section 4(1) irrespective of whether one report or different reports had been made under section 5 A sub section Section 4 of the Act purported to validate all acquisitions of land made or purporting to have been made under the principal Act before the commencement of the ordinance namely January 10, 1967, notwithstanding that more than one declaration under section 6 had been made in pursuance of the same notification under section 4(1), and notwithstanding any judgment, decree or order of any court to the contrary. The Amending Act also laid down time limits for declarations under section 6 of the principal Act after the notification under s 4(1), had been issued in respect of notifications made after January 20. 1967 the time limit was three years; in respect of notification made before that date the time limit was to be two years after that date. Provision was also made for payment of interest on compensation due to persons in respect of whose land declarations under section 6 had been delayed beyond a specified period; no interest was however, to be paid to those to whom compensation had already been paid. The petitioners by leave of Court amended their petitions to attack the validity of the. aforesaid Validating Act on the following main grounds : (1) By seeking to validate past transactions of a kind which had been declared invalid by this Court without retrospectively changing the substantive law under which the past transactions had been effected the legislature was encroaching over the domain of the judicial power vested by the Constitution in the judiciary exclusively; (ii) The Validating Act did not L4Sup. C.I.1684 42 revive the notification under section 4 which had become exhausted after the first declaration under section 6 and no acquisition following thereafter could be made without a fresh notification under section 4; (iii) The Validating Act violated article 31(2) of the Constitution inasmuch as it purported to authorise acquisitions without fresh notifications under section 4 thereby allowing compensation to be paid on the basis of the said . notification under section 4 without allowing for increase in the value of land thereafter; (iv) The Validating Act violated article 14 of the Constitution in various ways. HELD: Per Wanchoo C.J., Bachawat & Mitter, JJ. (i) The American doctrine of well defined separation of legislative and judicial powers has no application to India and it cannot be said that an Indian Statute which seeks to validate invalid actions ' is bad if the invalidity has already been pronounced upon by a court of law. A.K. Gopalan vs State, ; , referred to. (ii) The absence of a provision in the amending Act to give retrospective operation to section 3 of the Act does not affect the validity of section 4. It was open to Parliament to adopt either course e.g. (a) to provide expressly for the retrospective operation of section 3, or, (b) to lay down that no acquisition purporting to have been made and no action taken before the Land Acquisition (Amendment and Validation) Ordinance, 1967 shall be deemed to be invalid or even to have become invalid because, inter alia, of the making of more than one declaration under section 6 of the Land Acquisition Act, notwithstanding any judgment decree or order to the contrary. Parliament was competent to validate such actions and transactions, its power in that behalf being only circumscribed by appropriate entries in the Lists of the Seventh Schedule and the fundamental rights set forth in Part III of the Constitution. Section 4 of the Amending Act being within the legislative competence of Parliament, the provisions thereof are binding on all courts of law notwithstanding judgments, orders or decrees to the contrary rendered or made in the past. [67 C F] Case law referred to. (iii) The impugned Act does not violate article 31(2). The Act does not in express terms enact any law which directly affects compensation payable in respect of property acquired nor does it lay down any principles different from those which were already in the Land Acquisition Act of 1894. After the amendment of the Constitution in 1955 the question of compensation is not justiciable and it is enough if the law provides that a person expropriated must be given compensation for his property or lays down the principles therefor. [67 G H] The Legislature might well have provided in the Act of 1894 that it would be open to the appropriate Government after issuing a notification under section 4 to consider objections raised under section 5 with regard to the different localities from time to time enabling different reports to fie made under section 5 A with consequent adjustments in section 6 providing for declarations to be made as and when each report under section 5A was considered. By the validation of action taken under section 6 more than once in respect of a single notification under section 4, the original scheme of acquisition is not altered. The public purpose behind the notification remains the same. It is not as if a different public purpose and acquisition of land for such purpose were being interploated by means of the Validating Act. Only the shortcoming in the Act as to want to provision to enable more than one decla ration under section 6 are being removed. [68 D F] 43 The date of valuation under the Validation Act is that of the issue of notification under section 4(1), a principle which has held the field since 1923 Legislative competence to acquire land under the provisions of the Land Acquisition Act cannot be challenged because of constant appreciation of land values all over the country due to the prevalent abnormal inflation. There must be some time lag between the commencement and conclusion of land acquisition proceedings and in principle there is nothing wrong in accepting the said commencement as the date of valuation. Sections 4 and 23 of the Land Acquisition Act are protected by article 31(5) (a) of the Constitution. Only sections 5 A and 6 of the Act have been amended. The amendment does not alter the principle of compensation fixed by the Act nor contravene article 31 of the Constitution in any way. [69 G 70 B] It cannot be said of the Validating Act that it was fixing an arbitrary date for the valuation of the property which bore no relation to the acquisition proceedings. The population in Indian cities especially in the capital is ever increasing. The State has to plan the development of cities and it is not possible to take up all schemes in all directions at the same time. The resources of the State may not be sufficient to acquire all the area required by a scheme at the same time. Of necessity the area under the proposed acquisition would have to be carved into blocks and the development of one or more blocks at a time could only be taken up in consonance with the resources available. Even contiguous blocks could be developed gradually and systematically. In view of such factors it cannot be said that the principle of fixing compensation on the basis of the price prevailing on the date of the notification under section 4(1) of the Land Acquisition Act was not a relevant principle which satisfied the requirements of article 31(2).[70 C 71 H] The State of West Bengal vs Mrs. Bela Banerjee, ; , State of Madras vs D. Namasivaya Mudaliar, ; and, P.V. Mudaliar vs Deputy Collector, ; , considered. (iv) The validating Act was not violative of article 14. Whenever an Amending Act is passed there is bound to be some difference in treatment between transactions which have already taken place and those which are to take place in the future. That by itself will not attract the operation of article 14. Again, even with respect to transactions which may be completed in the future, a reasonable classification will not be struck down. [72 C] Jalan Trading Co. vs Mazdoor Union, ; , relied on. It is not possible to say that because the Legislature thought of improving upon the Act of 1894 by prescribing certain limits of time as from 20th January 1967 the difference in treatment in cases covered by the notification before the said date and after the said date denies equal protection of laws because the transactions are not similarly circumstanced. Some of the notifications issued under section 4 must have been made even more than 3 years before 20th January, 1967 and such cases obviously could not be treated in the same manner 'as notifications issued after that date. article 14 does not strike at differentiation caused by the enactment of a law between transactions governed thereby and those which are not so governed. [73 H 74 B] Hatisingh Manufacturing Co., Ltd. vs Union of India, ; No grievance can be made because interest is denied to persons who have already taken the compensation. Even here the classification is not unreasonable and cannot be said to be unrelated to the object of the Act. [74 E F] 44 Per Shelat and Vaidialingam, JJ. (dissenting) By validating the acquisition orders and declarations made on the basis of an exhausted notification under section 4 the impugned Act saves government from having to issue a fresh notification and having to pay compensation calculated on the market value as on the date of such fresh notification and depriving the expropriated owner of the benefit of the appreciated value in the meantime. The real object of section 4 of the impugned Act is thus to save the State from having to compensate for such appreciation under the device of validating all that is done under an exhausted section 4 notification and thus in reality fixing an anterior date i.e. the date of such a dead section 4 notification for fixing the compensation. The impugned Act thus suffers from a two fold vice : (i) that it purports to validate acquisitions orders and notifications without resuscicating the notification under section 4 by any legislative provision on the basis of which alone the validated acquisitions, orders and declarations can properly be sustained and (ii) that its provisions are in derogation of article 31(2) as interpreted by this Court by fixing compensation on the basis of value on the date of notifications under section 4 which had become exhausted and for keeping them alive no legislative provision is to be found in the impugned Act. It is therefore not possible to agree with the view that the purpose of section 4 is to fill the lacuna pointed out in Sharma 's case nor with the view that it raises a question of adequacy of compensation. The section under the guise of validating the acquisitions, orders and notifications camouflages the real object of enabling acquisitions by paying compensation on the basis of values frozen by notifications under s 4 which by part acquisitions thereunder had lost their efficacy and therefore required the rest of the land to be notified afresh and paying compensation on the date of such fresh notifications. The fact that neither section 4 nor section 23 of the principal Act are altered does not make any difference. [89 D H, 85 H] Section 4 of the Amending Act must therefore be struck down as invalid. [90 A]

The appellants/petitioners were tenants in the premises belonging to the respondent Banks/Life Insurance Corporation of India. Their tenancy had expired or had been terminated by the respondents and eviction proceedings initiated against them under the provisions of the . Writ peti tions under Article 226 were filled by the appellants in the High Court challenging the orders of eviction passed against them, which were dismissed; hence these appeals. The writ petitioners moved this Court directly under Article 32 of the Constitution against the notices of termination of tenancy issued to them. The Public Premises Act of 1971 was preceded by two enactments the Government Premises (Eviction) Act 1950, and the Public Premises (eviction of unauthorised occupants) Act, 1958 which were declared unconstitutional by different High Courts. Jagu Singh vs M. Shaukat Ali, ; Satish Chander & Anr. vs Delhi Improvement Trust, AIR 1958 Punjab 1; Brigade Commander, Meerut Sub Area vs Ganga Pra sad, ; P.L. Mehar etc. vs D.R. Khanna, etc., AIR 1971 Delhi 1 and Northern India Caterers Private Ltd. vs State of Punjab & Anr. , ; 650 This led to the enactment of the Public Premises Act in 1971. The validity of this act was upheld by this Court in Hari Singh vs The Military Estate Officer, ; Before this Court, the contentions were advanced by the parties mainly on two questions (i) whether the provisions of the Public Premises Act were applicable to the Premises belonging to a nationalised bank; and (ii) whether the provisions of the Public Premises Act override the provi sions of the Delhi Rent Control Act. In regard to the applicability of the Public Premises act, it was inter alia contended that the premises belonging to a nationalised bank or insurance company did not fall within the ambit of the definition of 'Public Premises ' contained in Section 2(e) of the Public Premises Act for the reason that the nationalised bank was not a company as defined in Section 3 of the and it was also not a corporation established by or under a Central Act. On the other hand, it was contended that the respond ents being nationalised bank, was a corporation established by a Central Act, viz., the Bank Nationalisation Act, and the premises belonging to a nationalised bank were 'public premises ' under section 2(e)(2)(ii) of the Public Premises Act. In regard to the second question, each side claimed that the enactment relied upon by it was a special statute and the other enactment was general, and also invoked the not obstante clause contained in the enactment relied upon. In this connection, it was argued on behalf of the respondents that the Public Premises Act having been enacted by Parlia ment in exercise of legislative power under Article 246(1) of the Constitution in respect of matters enumerated in the Union List would ipso facto override the provisions of the Rent Control Act enacted in exercise of the legislative powers under Article 246(4) in respect of matters enumerated in the concurrent list. Dismissing the appeals and the writ petition, this Court, HELD: (1) The provisions of the Public Premises Act, to the extent they cover premises failing within the ambit of the Rent Control Act, override the provisions of the Rent Control Act, and a person in unauthorised occupation of public premises under Section 2(e) of the Act cannot invoke the protection of the Rent Control Act. [694D E] (2) After the second world war there has been develop ment of a new pattern of public corporation in England as an instrument of plan 651 ning in the mixed economy. The general characteristics of such a public corporation is that it is normally created by a special statute; it has no shares and no share holders, either private or public, and its share holder, in the symbolic sense, is the nation represented through Government and Parliament; and it has the legal status of a corporate body with independent legal personality. There has been a similar growth of this type of public corporation in other. countries. This trend is also evident in our country. since Independence and a number of such public corporations have been constituted by Acts of Parliament. [668A C] (3) The expression 'Corporation ' in Section 2(e)(2)(ii) of the Public Premises Act would include public corporations of the new pattern constituted under the Central Acts where in the entire paid up capital vests in the Central Govern ment. [670G] S.S. Dhanoa vs Municipal Corporation, Delhi, ; , distinguished. (4) In order to constitute a corporation it is not necessary that there should be shareholders or members and that in the new pattern of public corporation that has developed there are no shareholders or members. [671G] Bank of New South Wales & Ors. vs The Common wealth, ; and R.C. Cooper vs Union of India, ; , referred to. Oriental Bank of Commerce vs Delhi Development Authori ty, , overruled. (5) Provisions of the Banks Nationalisation Act show that the nationalised Bank has been constituted as a dis tinct juristic person by the Act and it is owned by the Central Government. They further indicate that the nationa lised bank has all the attributes of the new pattern of public corporation. [667B] (6) The object of the legislation in enlarging the definition of 'public premises ' in Section 2(e) of the Public Premises Act is to make available the machinery of the Act for evicting unauthorised occupants not only from the premises belonging to the Central Government but also from premises belonging to Companies, Corporation and statu tory bodies in which the Central Government has a substan tial interest. [670D E] 652 (7) Under Section 2(e)(2)(i) premises belonging to a company incorporated under the , in which not less than fifty one percent of the paid up capital is held by the Central Government, are to be treated as public enterprises. It could not be the intention of Parliament that premises belonging to public corporations whose entire paid up capital vests in the Central Government and who are the instrumentalities of State would be excluded from the ambit of the definition of 'public premises '. [670E G] (8) Keeping in view the provisions of the Banks Nation alisation Act the nationalised bank is a corporation estab lished by a Central Act and it is owned and controlled by the Central Government. The premises belonging to a nationa lised bank are public premises under Section 2(e)(2)(ii) of the Public Premises Act. [671 H; 672A] (9) There is no warrant for confining the scope of the definition of 'public premises ' contained in section 2(e) to premises used for residential purposes only and to exclude premises used for commercial purposes from its ambit. [672D] Hari Singh vs Military Estate Officer, ; , referred to. (10) No distinction can be made between premises used for residential purposes and premises used for commercial purposes in the matter of eviction of unauthorised occupants of public premises and the consideration which necessitate providing a speedy machinery for eviction of persons in unauthorised occupation of public premises apply equally to both the types of public premises. [673B C] (11) The definition of the expression 'unauthorised occupation ' contained in Section 2(g) of the Public Premises Act is in two parts. The second part of the definition is inclusive in nature and expressly covers continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoev er. The words "whether by way of grant or any other mode of transfer" in this part of the definition are wide in ampli tude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. [673F; G H; 674B] Brigadier K.K. Verma vs Union of India, AIR 1954 Bom 358, distinguished. 653 Lallu Yeshwant Singh vs Rao Jagdish Singh & Ors., ; , and Express Newspapers Pvt. Ltd. & Ors. vs Union of India & Ors. , [1985] Suppl. 3 SCR 302, referred to. (12) It is true that there is no requirement in the Public Premises Act that the Estate Officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease when the Public Premises Act and the Rules framed thereunder provide for a right of appeal of the District Judge against an order of the Estate Officer. which shows that the final order that is passed is by a judicial officer. [675F H] Maganlal Chhagganlal (P) Ltd. vs Municipal Corporation of Greater Bombay & Ors., ; , referred to. (13) As regards rent control legislations enacted by the State legislatures, the position is well settled that such legislation fail within the ambit of entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution. [682E] Indu Bhushan Bose vs Rama Sundari Devi & Anr. , ; ; V. Dhanpal Chettiar 's vs Yesodai Ammal, ; ; Jai Singh Jairam Tyagi Etc. vs Mamanchand Ratilal Agarwal & Ors., ; ; Accountant and Secretari al Services Pvt. Ltd. & Anr. vs Union of India & Ors. , ; , referred to. (14) The Rent Control Act has been enacted by Parliament in relation to the Union Territory of Delhi in exercise of the legislative power conferred under Article 246(4) of the Constitution which empowers Parliament to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. [682G] (15) The Public Premises Act deals with Government property as well as property belonging to other legal enti ties mentioned in clauses (2) and (3) of Section 2(e) of the Public Premises Act. In so far as it relates to eviction of unauthorised occupants from premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government, the Public Premises Act would fail within entry 32 of List I being law with respect to a property of the Union. The property belonging to the various legal entities mentioned in clauses (2) and (3) of Section 2(e) of the Public Premises Act cannot be regarded as property of 654 the Union and the Public Premises Act cannot be held to have been enacted under entry 32 of List I in respect of the said properties. In so far as it deals with a lessee or licensee of premises other than premises belonging to the Central Govt; the Public Premises Act has been enacted in exercising the legislative power in respect of matters enumerated in the concurrent list. [682H; 683A C] (16) Both the statutes, viz. the Public Premises Act and the Rent Control Act, have been enacted by the same legisla ture, Parliament, in exercise of the legislative powers in respect of the matters enumerated in the Concurrent List. [684C] Accountant and Secretarial Services Pvt. Ltd. vs Union of India And Ors., ; ; Smt. Saiyada Mossarrat vs Hindustan Steel Ltd.; , and L.S. Nair vs Hindustan Steel Ltd., AIR 1980 MP. 106, referred to. (17) The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Transfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudica tion of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The Rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi. [686D F] (18) The Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. [689E] Jain Ink Manufacturing Company vs Life Insurance Corpo ration of India & Anr., ; , referred to. (19) Both the enactments, namely, the Rent Control Act and the Public Premises Act, are special statutes in rela tion to the matters dealt with therein. Therefore, the exception contained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier contrary laws, the Public Premises Act must prevail over the Rent Control Act. [686H; 687A] J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs The State of Uttar Pradesh, ; ; U.P. State Elec tricity Board vs Hari 655 Shankar Jain; , and Life Insurance Corpora tion vs D.J. Bahadur; , , referred to. (20) In the case of inconsistency between the provisions of two enactments, both of which can be regarded as Special in nature. the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. [688G] Shri Ram Narain vs The Simla Banking and Industrial Co. Ltd.; , ; Kumaon Motor Owners ' Union Ltd. vs The State of Uttar Pradesh, ; and Sarwan Singh vs Kasturi Lal; , , referred to. (21) Keeping in view the object and purpose underlying both the enactments viz., the Rent Control Act and the Public Premises Act, the provisions of the Public Premises have to be construed as overriding the provisions contained in the Rent Control Act. [690H] The Parliament was aware of the non obstante clauses contained in Section 14 and 22 and the provisions contained in Sections 50 and 54 of the Rent Control Act when it enact ed the Public Premises Act containing a specific provision in Section 15 barring jurisdiction of all courts (which would include the Rent Controller under the Rent Control Act). This indicates that Parliament intended that the provisions of the Public Premises Act would prevail over the provisions of the Rent Control Act inspite of the above mentioned provisions contained in the Rent Control Act. [691A B] (23) The scope of the provisions of the Public Premises Act cannot be cut down on the basis of an apprehension that the corporations may be induced to earn profits by purchas ing property in possession of tenants at a low price and after buying such property evict the tenants after terminat ing their tenancy and thereafter sell the said property at a much higher value. Every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigours of the Rent Act, must be informed by reason and guided by the public inter est. [693F; E G] M/s Dwarkadas Marfatia and Sons vs Board of Trustees of the Port of Bombay, ; , referred to.

In exercise of the powers conferred by section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 the Government of Tamil Nadu issued a Notification G.O. Ms. 2000 (Homo Department) dated 16th August, 1976 exempting all the buildings owned by the Hindu, Christian and Muslim religious public trusts and public charitable trusts from all the provisions of the Act. The tenants challenged the Notification granting total exemption through the said Notification on three grounds namely; (a) that section 29 of the Act suffers from the vice of excessive delegation of legislative powers in as much as it vests in the State Government unguided and uncontrolled discretion in the matter of granting exemptions and is, therefore, violative of Article 14 of the Constitution; (b) that the Notification dated 16th August, 1976 deprives the tenants of all such buildings (belonging to Hindu. Christian and Muslim religious public trusts and public charitable trusts) of the equal protection of the beneficial provisions of the Act which is available to the tenants of other buildings and as such the same is discriminatory offending against the equal protection clause of Article 14; and (c) that in any event the total exemption from all the provisions of the Act granted to such buildings, where partial exemption would have sufficed is excessive, unwarranted and unsupportable. The State Government and the respondent landlords have refuted all the grounds on which the exemption has been challenged and further sought to justify the grant of total exemption mainly on the basis that the freedom (right) to recover the reasonable market rent would be ineffective without the freedom to evict the tenant. Dismissing the writ petitions and the civil appeals the Court, 399 ^ HELD: 1.1 In view of the decision of the Supreme Court in P.J. Irani vs The State of Madras, ; dealing with an identical provision contained in the earlier Madras enactment the challenge to the Constitutional validity of section 29 cannot be sustained. [405A B] P. J. Irani vs State of Madras, ; ; State of Madhya Pradesh vs Kanhaiyalal, 1970 (15) M.P.L.U SC 973 relied on. The rationale behind the conferal of such power to grant exemptions or to make exceptions is that an inflexible application of the provisions of the Act may under some circumstances result in unnecessary hardship entirely disproportionate to the good which will result from a literal enforcement of the Act and also the practical impossibility of anticipating in advance such hardship to such exceptional cases. In the matter of beneficial legislations also there are bound to be cases in which an inflexible application of the provisions of the enactment may result in unnecessary and undue hardship not contemplated by the legislature. The power to grant exemption under section 29 of the Act, therefore, has been conferred not for making any discrimination between tenants and tenants but to avoid undue hardship or abuse of the beneficial provisions that may result from uniform application of such provisions to cases which deserve different treatment. Of course, the power to grant exemption has to be exercised in accordance with the policy and object of the enactment gatherable from the preamble as well as its operative provisions without subverting the general purpose of the enactment. [406G H, 407A B] P. J. Irani vs State of Madras, ; relied on. Gorieb vs Fox, [1926] 71 Lawyers Edition at page 1230 quoted with approval . That Tamil Nadu Act is a piece of beneficial legislation intended to remedy the two evils of rackrenting (exaction of exhorbitant rents) and unreasonable eviction generated by a large scale of influx of population to big cities and urban areas in the post Second World War period creating acute shortage of accommodation in such areas and the enactment avowedly protects the rights of tenants in occupation of buildings in such areas from being charged unreasonable rents and from being unreasonably evicted therefrom. The Legislature itself has made a rational classification of buildings belonging to government and buildings belonging to religious, charitable, educational and other public institutions and the different treatment accorded to such buildings under section 10(3) (b) of the Act, which obviously proceeds on the well founded assumption that the government as well as the landlords of such buildings are not expected to and would not indulge in rack renting or unreasonable eviction. This and similar other provisions crystalize the policy and the purposes of the Act and furnish the requisite guidance which can legitimately govern the exercise of power conferred on the State Government under section 29 of the Act The power to grant exemptions or make exceptions could be legitimately exercised by the State Government in areas or cases where the mischief sought to be remedied by 400 the Act is neither prevalent nor apprehended as also in cases (individual or class of cases) where a uniform or inflexible application of the law is likely to result in unnecessary or undue hardship (here the landlords) or in cases where the beneficial provision is likely to be or is being abused by persons for whom it is intended there the tenants) [407D E, 408F H, 409A] 3.1. Public religious and charitable endowments or trusts constitute a well recognised distinct group in as much as they not only serve public purposes but the disbursement of their income is governed by the objects with which they are created and buildings belonging to such public religious and charitable endowments or trusts clearly fall into a distinct class different from buildings owned by private landlords. Therefore, their classification into one group done by the State Government while issuing the impugned notification must be regarded as having been based on an intelligible differentia. [409F G] 3.2. In view of the counter affidavit filed by the State Government dated 10 2 1981 and the supplementary counter affidavit dated 24th September, 1983 to the effect that the government was satisfied that "in all these cases, the rent paid by the tenants was very low, meagre and that the provisions of fixation of fair rent under the Act would not meet the ends of justice and the situation will still continue in which the tenant will be exploiting the situation and the helplessness of the public religious trusts and charitable institutions and hence they decided to withdraw the protection given under the Act to the tenants of such buildings", not having been challenged by way of rejoinder affidavits by the petitioners/appellants, it is clear that buildings belonging to such public religious and charitable endowments or trusts clearly fell into a class where undue hardship and injustice relating to them from the uniform application of the beneficial provisions of the Act needed to be relieved and the exemption granted will have to be regarded as being germane to the policy and purposes of the Act. In other words, the classification made has a clear nexus with the object with which the power to grant exemption has been conferred upon the State Government under section 29 of the Act. [411C, 412B G] State of Rajasthan vs Mukanchand and Others, ; ; held inapplicable. Granting total exemption cannot be regarded as excessive or unwarranted. The two objectives of the enactment, namely, to control rents and to prevent unreasonable eviction are interrelated and the provisions which subserve these objectives supplement each other It is obvious that if the trustees of the public religious trusts and public charities are to be given freedom to charge the normal market rent then to make that freedom effective it will be necessary to arm the trustees with the right to evict the tenants for non payment of such market rent. The State Government on materials before it came to the conclusion that the 'fair rent ' filled under the Act was unjust in case of such buildings and it was necessary to permit the trustees of such buildings to recover from their tenants reasonable market rent and if that be so non eviction when reasonable market rent is not paid would be unreasonable and if the market rent is paid by the 401 tenants no trustee is going to evict them. Further, it is conceivable that trustees of buildings belonging to such public religious institutions or public charities may desire eviction of their tenants for the purpose of carrying out major or substantial repairs or for the purpose of demolition and reconstruction and the State Government may have felt that the trustees of such buildings should be able to effect evictions without being required to fulfil other onerous conditions which must be complied with by private landlord when they seek evictions for such purpose. [413D E, 414C G] 3.4. The manner in which exemption from rent control provisions should be granted, whether it could be partial or total and if so on what terms and conditions would be matters for each State Government to decide in the light of the scheme and provisions of the concerned enactment and the facts and circumstances touching the classification made. And if the State of Madras has thought fit to grant the exemption in a particular manner by the impugned notification is cannot be faulted. if to exemption so granted is not illegal or unconstitutional. [415A B]

Through this petition filed under Article 32 of the Constitution the petitioner prayed for the issue of a writ in the nature of quo worranto to the respondent K.P. Tewari who had been appointed in November, 1984 as a Minister of the Government of Uttar Pradesh under Article 164(1) of the Constitution by the Governor of the State of Uttar Pradesh even though Shri Tewari was not a member of either House of the State Legislature. The petitioner contended (i) that in the judgment of Har Sharan Verma vs Shri Tribhuvan Narain Singh, Chief Minister of U.P. and Anr., (AIR where it had been held that the appointment of a person as Chief Minister could not be challenged on the ground that he was not a member of the Legislature of a State at the time of appointment, this Court had not considered the effect of the amendment of Article 173 (a) of the Constitution by the Constitution (Sixteenth) Amendment Act, 1963; (ii) that after the amendment of Article 173 of the Constitution by the Constitution (Sixteenth) Amendment Act, 1963 it was not open to the Governor to appoint a person who was not a member of the Legislature of the State as a Minister and that Article 164(4) of the Constitution would only be applicable to a person who had been a Minister but who ceased to be a member of the Legislature for some reason such as the setting aside of his election in any election petition; and (iii) that the debates of the Constituent Assembly suggested that a person should be a member of the Legislature at the time of his being chosen as a Minister. Dismissing the petition, ^ HELD: (I) By the Sixteenth Amendment clause (a) of Article 173 of the Constitution is amended by the addition of a clause which requires a candidate at an election to the Legislature to make and subscribe before some person authorised in that behalf by the Election Commission an oath or affirmation 548 according to the form set out for the purpose in the Third Schedule to the Constitution. Earlier it was only after a person was elected or nominated as a member of the Legislature of a State that he was required by Article 188 of the Constitution to make and subscribe an oath or affirmation before taking his seat as such member in the form mentioned in the Third Schedule to the Constitution. The above requirement has to be complied with by an elected or nominated member of the State Legislature even after the Sixteenth Amendment. [550H; 551A; E;H] (2) The object of introducing the amendment in clause (a) of Article 173 of the Constitution was to provide that not only before taking his seat shall a member of the Legislature take the oath prescribed by the Third Schedule as required by Article 188 of the Constitution but that even before standing for election, a candidate must take the same oath. This is to ensure that only a person having allegiance to India shall be eligible for membership of the Legislature. [552C D] (3) Article 177, ensures the implementation of the constitutional principle contained in clause (2) of Article 164 of the Constitution which provides that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. A Minister in a State under our Constitution discharges that responsibility by virtue of the provisions contained in Article 177 of the Constitution which enables him to participate in the proceedings of the Legislative Assembly even though he may not be its member with the right to vote.[553F;G] (4) It does not appear that the debates of the constituent Assembly suggest that a person shall be a member of the Legislature at the time of his being chosen as a Minister. An amendment was proposed to that effect in the Constituent Assembly to the draft Constitution but was not accepted: [553H; 554A C] (5) The fear expressed by the petitioner that a person who does not owe his allegiance to the Constitution and is not willing to uphold the sovereignty and integrity of India would have an opportunity to become a Minister if he is not required to become a member of the Legislature after having made and subscribed an oath or affirmation as prescribed by Article 173(a) of the Constitution is not well founded because under clause (3) of Article 164 of the Constitution a Minister for a State is required to take an oath of allegiance to the Constitution and to undertake to uphold his office in the from prescribed in the Third Schedule. [554C E] (6) No material change has been brought about by reason of the amendment of Article 173(a) of the Constitution in the legal position that a person who is not a member of the State Legislature may be appointed as a Minister subject, of course, to clause (4) of Article 164 of the Constitution according to which a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister. [554H; 555A] (7) By enacting Article 164(4) of the Constitution the makers of the Constitution provided for a situation where a Minister may lose a seat in the 549 Legislature after appointment as the result of an election petition for example A Or may not be a member when he is appointed.[555B C] Har Sharan Verma vs Shri Tribhuvan Narain Singh, Chief Minister of U.P. and Anr., ; , Constitution Assembly Debates dated June 1 1949, Vol. VIII at p. 521 and Har Sharan Verma vs Chandra Bhan Gupta & Ors. , A.l.R. 1962 Allahabad 30], referred to.

While ascertaining the surplus land under the Pepsu Tenancy and Agricultural Lands Act, the excess over 30 acres owned by the appellants, a Hindu undivided family was declared surplus. In ascertaining the surplus, the authorities ignored the transfer of land by the Karta of the family to an outsider by a registered deed. The appellants unsuccessfully filed writ petition. In appeal to this Court, the appellants contended that section 32 KK deprives a coparcener in a Hindu undivided family of his rights of property. in that it takes away the rights of the descendants of the land owner to claim for themselves the permissible area and vest them in the head of the family alone so that there is not only an infringement of the right to hold property under article 19(1) (f) but also discrimination in favour of the head of the family infringing thereby article 14 and that the section cannot be said to be legislation whose object is agrarian reform and, therefore, is not protected by article 31 A. HELD:The appeal must fail. In Pritam Singh vs State of Punjab [(1967) 2 S.C.R. 536] this Court upheld the validity of section 32 FF and held that that section was protected by article 31 A against any challenge under article 19. If a transfer or a disposition of land can validly be ignored under section 32 FF for the purpose of ascertaining surplus land and acquisition of such surplus land bit he State and that section is protected by article 31 A, it is difficult to say why section 32 KK which, equates a Hindu undivided family with an individual landowner for the limited purpose of the Act without affecting the other rights of its members is not equally protected by that Article. The object of enacting section 32 KK was to prevent the landowner and his descendants by reason of their constituting a Hindu undivided family from each of them claiming in his own right the permissible area from the joint holding of the family and thus retain for themselves in the aggregate area larger than 30 standard acres and preventing thereby distribution of surplus area. [608 F H] The contention that the section is not one relating to agrarian reform is hardly sustainable in view of the objects of the Act in general and of section 32 KK in particular. Similarly, the contention that the section has the affect of defeating the rights of a member of a Hindu undivided family from the family property also cannot be sustained because his rights in the permissible area retained by the landowner and his right to compensation in respect of the surplus area are not touched by the section. Nor is it possible to say that the section results in the transfer of rights of the descendants of a landowner in the permissible or surplus area in favour of such landowner. The section does not effect any change in the rights of 604 the descendants as members of a Hindu undivided family or the relationship of the family inter se except to the extent of depriving the descendants of their right to claim the ceiling area for each of them. [609 B E] The decision of Ranjit Singh vs The State of Punjab ([1965] 1 S.C.R. 82) points out that the fixing of ceiling on lands and provisions relating to it would form part of and constitute agrarian reform and, therefore, such provisions would have the protection of article 31 A. [607 H]

The appellant and his brother owned certain properties inherited from their father. The brother died and the appellant claimed to have become the sole heir. The respondent issued a notice under section 7 of the , in respect of the share of the brother on the ground that the brother had left a widow and a son who had migrated to Pakistan. The appellant, desiring to know on what materials the notice was issued, applied for copies of the materials on the basis of which he respondent had formed his opinion. The application was rejected by the respondent. The appellant filed a petition under article 226 of the Constitution in the High Court which was also dismissed. The appellant obtained special leave and contended that the notice was issued without jurisdiction as there was no material before the respondent to justify his issuing of the notice and that the application for the copies had been improperly ejected by the respondent. Held, that it was for the Custodian to form his opinion on such material as was before him and on such information which he possessed. It is not for any Court to determine whether the information in the possession of the Custodian was adequate to justify the issue of a notice under section 7 of the Act: Held further, that the application for copies had been rightly rejected. There are two stages in the process whereby any property can be declared to be evacuee property under the Act. One is the issuing of the notice to persons interested and the other is the inquiry under section 7. The proceedings commence after issue of the notice and not prior to it. A party to the proceedings will be entitled to copies of the record and evidence from the stage of 817 the issuing of the notice until the conclusion of the enquiry but not previous to the issue of the notice.

The petitioners, in this writ petition under article 32, sought a direction for closure of the various units of Shriram Foods & Fertilizers 820 Industries on the ground that they were hazardous to the community. During the pendency of the petition, there was escape of oleum gas from one of the units of Shriram. The Delhi Legal Aid and Advice Board and the Delhi Bar Associa tion filed applications for award of compensation to the persons who had suffered harm on account of escape of oleum gas. A Bench of three Hon 'ble Judges while permitting Shriram to restart its power plant as also other plants subject to certain conditions, referred the applications for compensa tion to a larger Bench of five Judges because issues of great constitutional importance were involved, namely, (1) What is the scope and ambit of the jurisdiction of the Supreme Court under article 32 since the applications for compensation are sought to be maintained under that Article; (2) Whether article 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest and with potential to affect the life and health of the people; and (3) What is the measure of liabil ity of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured. Does the rule in Rylands vs Fletcher, (1866 Law Report 1 Excheq uer 265) apply or is there any other principle on which the liability can be determined. Disposing of the applications, HELD: 1. The question whether a private corporation like Shriram would fall within the scope and ambit of article 12 so as to be amenable to the discipline of article 21 is left for proper and detailed consideration at a later stage if it becomes necessary to do so. [844F G] Rajasthan Electricity Board vs Mohan Lal, ; ; Sukhdev vs Bhagwat Ram, ; ; Ramanna Shetty vs International Airport Authority, ; ; Ajay Hasia vs Khalid Mujib, ; ; Som Prakash vs Union of India, ; ; Appendix I to Industrial Policy Resolution, 1948; Industries (Develop ment and Regulation) Act, 1951; Delhi Municipal Act, 1957 ; Air (Prevention and Control of Pollution) Act, 1981; Eurasian Equipment and Chemicals Ltd. vs State of West Bengal, ; ; Rasbehari Panda vs St.ate, ; ; Kas turi Lal Reddy vs State of Jammu & Kashmir, ; , referred to. 821 2. The Delhi Legal Aid and Advice Board is directed to take up the cases of all those who claim to have suffered on account of oleum gas and to file actions on their behalf in the appropriate Court for claiming compensation and the Delhi Administration is directed to provide necessary funds to the Board for the purpose. [844G H; 845A] 3.(i) Where there is a violation of a fundamental or other legal right of a person or class of persons who by reason of poverty or disability or socially or economically disadvantaged position cannot approach a Court of law for justice, it would be open to any public spirited individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing regular writ petition under article 226 in the High Court and under article 32 in this Court, but also by addressing a letter to the Court. [828B C; E F] 3.(ii) Even if a letter is addressed to an individual Judge of the Court, it should be entertained, provided of course it is by or on behalf of a person in custody or on behalf of a woman or a child or a class or deprived or disadvantaged persons. [829B C] 3.(iii) Letters addressed to individual Justices of this Court should not be rejected merely because they fail to conform to the preferred form of address nor should the Court adopt a rigid stance that no letters will be enter tained unless they are supported by an affidavit. If the Court were to insist on an affidavit as a condition of entertaining the letters the entire object and purpose of epistolary jurisdiction would be frustrated because most of the poor and disadvantaged persons will then not be able to have easy access to the Court and even the social action groups will find it difficult to approach the Court. [828H; 829B] Bandhua Mukti Morcha vs Union of India & Ors., ; ; S.P. Gupta vs Union of India, [1981] (Suppl) SCC 87 and Union for Democratic Rights & Ors. vs Union of India, [1983] 1 SCR 456, relied upon. 4.(i) Article 32 does not merely confer power on this Court to issue direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all inci dental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitu tional obligation that this Court 822 has, in the past, innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disad vantaged who are denied their basic human rights and to whom freedom and liberty have no meaning. [827F 828A] 4.(ii) The power of the Court is not only injunctive in ambit, that is, preventing the infringement of fundamental right but it is also remedial in scope and provides relief against a breach of the fundamental right already committed. [830A B] 4.(iii) The power of the Court to grant such remedial relief may include the power to award compensation in appro priate cases. The infringement of the fundamental right must be gross and patent, that is incontrovertible and exfacie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons or it should appear unjust or unduly harsh or op pressing on account of their poverty or disability or so cially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the Civil Courts. [830D; E F] 4. (iv) Ordinarily a petition under article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of Civil Court. It is only in exceptional cases that compensation may be awarded in a petition under article 32. [830F G] 4.(v) The applications for compensation in the instant writ petition are for enforcement of the fundamental right to life enshrined in article 21 of the Constitution and while dealing with such applications the Court cannot adopt a hyper technical approach which would defeat the ends of justice. The Court must look at the substance and not the form. Therefore, the instant applications for compensation are maintainable under article 32. [827A B] Bandhua Mukti Morcha vs Union of India & Ors. , ; ; S.P. Gupta vs Union of India, [1981] (Suppl.) SCR 87; Union for Democratic Rights & Ors. vs Union of India, [1983] 1 SCR 456 and Rudul Shah vs State of Bihar, AIR 1983 SC 1086, relied upon. The rule in Rylands vs Fletcher (supra) laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does 823 damage to another, he is liable to compensate for the damage caused. This rule applies only to non natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory author ity. This rule evolved in the 19th century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. In a modern industrial society with highly de veloped scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry on as part of developmental programme, the Court need not feel inhibited by this rule merely because the new law does not recognise the rule of strict and absolute liability in case of an enterprise engaged in hazardous and dangerous activi ty. [842D G] Halsburry Laws of England, Vol. 45 Para 1305, relied upon. 6.(i) Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. Law cannot afford to remain static. The Court cannot allow judicial thinking to be constricted by reference to the law as it prevails in England or in any other foreign country. Although this Court should be prepared to receive light from whatever source it comes, but it has to build up its own jurisprudence, evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly indus trialised economy. If it is found that it is necessary to construct a new principle of law to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concommitant to an industrial economy the Court should not hesitate to evolve such principles of liability merely because it has not been so done in England. [843A E] 6(ii) This Court has throughout the last few years expanded the horizon of article 12 primarily to inject respect for human rights and social conscience in corporate struc ture. The purpose of expansion has not been to destroy the raison d 'etre of creating corporations but to advance the human rights jurisprudence. The apprehension that including within the ambit of article 12 and thus subjecting to the discipline of article 21 those private corporations whose activities have the potential of affecting the life and health of the people, would deal a death blow to 824 the policy of encouraging and permitting private enterpre neurial activity is not well founded. It is through creative interpretation and bold innovation that the human rights jurisprudence has been developed in India to a remarkable extent and this forward march of the humanrights movement cannot be allowed to be halted by unfounded apprehensions expressed by status quoists. [841C E] 7.(i) An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an abso lute non delegable duty to the community to ensure that if any harm results to anyone, the enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity must be conducted with the highest standards of safety and if any harm results on account of such activity the enterprise must be absolutely liable to compensate for such harm irrespective of the fact that the enterprise had taken all reasonable care and that the harm occurred without any negligence on its part. [843E G] 7.(ii) If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate item of its overheads. The enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. [844A B] 7.(iii) The measure of compensation in such kind of cases must be co related to the magnitude and capacity of the enterprise because such compensation must have a deter rent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in carrying on of the hazardous or inherently dangerous activity by the enterprise. [844E F] 8. The historical context in which the American doctrine of State action evolved in the united States is irrelevant for the purpose of Indian Courts, especially in view of article 15(2) of the Indian Constitution. But, it is the principle behind the doctrine of State aid, control and regulation so impregnating a private activity as to give it the colour of State action which can be applied to the limited extent to which it can be Indianised and harmoniously blended with Indian constitutional 825 jurisprudence. Indian Courts are not bound by the American exposition of constitutional law. The provisions of American Constitution cannot always be applied to Indian conditions or to the provisions of Indian Constitution and whilst some of the principles adumberated by the American decisions may provide a useful guide, close adherence to those principles while applying them to the provisions of the Indian Consti tution is not to be favoured, because the social conditions in India are different. [840D H] Ramanna Shetty vs International Airport Authority, ; ; Jackson vs Metropolitan Edison Co., ; ; Air India vs Nargesh Mirza, ; and General Electric Co. Maratha vs Gilbert, ; , relied upon.

140 and 177 to 191 of 1959. Petitions under Article 32 of the Constitution of India for enforcement of Fundamental Rights. M. R. M. Abdul Karim and K. R. Choudhury, for petitioners. K. N. Rajagopala Sastri and D. Gupta, for respondents. 513 1961. March 22. The Judgment of the Court was delivered by KAPUR, J. These are sixteen petitions under article 32 of the Constitution challenging the legality of the imposition of surcharge imposed on the income of the assessees under the Finance Acts of 1942, 1943, 1944 and 1945. The assessment relates to four assessment years 1942 43, 1943 44, 1944 45 and 1945 46. The petitioners are four partners of a firm named Mohammedaly Sarafaly & Co., Madras, which was carrying on business in hardware, stocks, shares, etc. For the assessment years 1942 43 to 1945 46 this firm was treated as a registered firm under the Indian Income tax Act and therefore the partners were assessed on their respective shares of the profits from the business of the firm. All assessments were completed before 1949 and total income for the purpose of assessment for those four years was about Rs. 29,00,000. In 1955 the petitioners under a 'Voluntary Disclosure Scheme ' with regard to profits which had escaped assessment made a disclosure of their income and proceedings were taken under section 34 of the Income tax Act. In the month of April, 1959, there was a reassessment on all the four partners and the total income for the four assessment years thus came to about Rs. 35 lakhs which included Rs. 29 lakhs already assessed. On that income, income tax, super tax, and surcharge were levied. The surcharge, according to the petition was Rs. 3,82,791. It is this surcharge which is impugned as being, without the authority of law inasmuch as the then Federal Legislature, it is submitted, was not competent to levy the surcharge. Provision for surcharge was made under section 8(1) of the Finance Act, 1942 (Act XII of 1942). This section may now be quoted: Section 8(1) "Subject to the provisions of sub sections (2) and (3), (a) income tax for the year beginning on the 1st day of April, 1942, shall be charged at the rates specified in Part I of Schedule II increased in the cases to which subparagraph (b) of paragraph A 65 514 and paragraph B of that part apply with a sur charge for the purposes of the Central Government at the rate specified therein in respect of each such rate of income tax, and (b) rates of super tax for the year beginning on the 1st day of April, 1942, shall, for the purpose of section 55 of the Indian Income tax Act, 1922, be those specified in Part II of Schedule II increased in the cases to which paragraphs A, B and C of that Part apply by a surcharge for the purposes of the Central Government at the rate specified therein in respect of each such rate of super tax. " It was contended that the Federal Legislature had no power under the Government of India Act, 1935,(25 and 26 Geo V, Ch. 42), to impose a surcharge "for the purposes of the Central Government". The legislative power of the Federal Legislature was given in section 100 of the Government of India Act, 1935, and the power to tax income was contained in item 4 of List I of the Seventh Schedule which was as follows: "Taxes on income other than agricultural income. " Part VII of the Government of India Act, 1935, deals with Finance, Property and Suits and the first chapter deals with Finance. The relevant section which has been relied upon by the petitioners, i.e., section 138(1) of that Act, is in that Part which deals with Distribution of Revenues between the Federation and the Federal Units. That section reads: Section 138(1) "Taxes on income other than agricultural income shall be levied and collected by the Federation. . . . Provided that (a). . . . . . . . . . . (b) the Federal Legislature may at any time increase the said taxes by a surcharge for Federal purposes and the whole proceeds of any such surcharge shall form part of the revenues of the Federation. " It was submitted that according to this section the power of the Federal Legislature to impose a surcharge was only for Federal purposes; that by section 8(1) of the Finance Act, 1942, and similar provisions in 515 the other Finance Acts of three following years, the surcharge had been levied "for the purposes of the Central Government" and that the terms "the purposes of the Central Government" and "for Federal purposes" were not the same but were two different concepts. Section 311 of the Government of India Act, 1935, deals with Interpretation but "Federal purposes" is Dot defined in that section. In subsection (3) of section 313 which is in Part XIII, dealing with Transitional Provisions, it is provided: Section 313(3) "References ' in the provisions of this Act for the time being in force to the Governor General and the Federal Government shall, except as respects matters with respect to which the Governor General is required by the said provisions to act in his discretion be construed as references to the Governor General in council, and any reference to the Federation, except where the reference is to the establishment of the Federation, shall be construed as a reference to British India, the Governor General in Council, or the Governor general, as the circumstances and the context may require. " On the basis of this section it was urged that the term "Federal purposes" in section 138(1)(b) of the Government of India Act, 1935, means the purposes of the Federal Government, i.e., of the Governor General in Council or the Governor General as the case may be and that in the context it is a term of lesser amplitude than the term "purposes of the Central Government". "Central Government" in section 3(8ab)(a) of the , was defined as follows: Section 3 (8ab) "Central Government ' shall (a) in relation to anything done or to be done after the commencement of of the Government of India Act, 1935, mean the Federal Government;". "Federal Government" was defined in the in section 18 a as follows: Section 18 a " 'Federal Government ' shall (a) in relation to anything done or to be done after the commencement of of the Government of India Act, 1935, but before the establishment of the Federation, mean, as respects matters 516 with respect to which the Governor General is by and under the provisions of the said Act for the time being in force required to act in his discretion, the Governor General and as respects other matters, the Governor General in Council; and shall include (i) in relation to functions entrusted under section 124(1) of the said Act to the Government of a Province, the Provincial Government acting within the scope of the authority given to it under that subsection; and (ii) in relation to the administration of a Chief Commissioner 's Province, the Chief Commissioner acting within the scope of the authority given to him under section 94(3) of the said Act;". From these sections it was argued that the term "Federal Government" in the Government of India Act 1935, only meant the Governor General or the Governor General in Council as the case may be but under the definition in the the term "Central Government" did not only denote the Governor General or the Governor General in Council as the case may be but also included for certain purposes the Provincial Governments acting within the scope of the authority given to them under a. 124(1) of the Government of India Act, 1935. This argument, in our opinion, is wholly fallacious. The power of the Federal Legislature to legislate was conferred by section 100, sub sections (1) and (2). The first sub section deals with the power of the Federal Legislature to legislate in regard to items contained in the First List which was exclusively within the power of the Federal Legislature. The Federal Legislature therefore had the power to legislate in regard to any subject contained in List I and item 54 relating to taxes on income was in that List. It has been held that the items have to be given the widest possible amplitude. But it was submitted that the power under item 54 howsoever wide it may be is subject to the limitation contained in section 138(1), proviso (b). Now "Federal purposes" is not defined in the Government of India Act, 1935, nor is it defined in the General 517 Clauses Act. But there is sufficient indication in section 138 itself that the amounts recovered as surcharge were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes there indicated. Under section 124(4) of the Government of India Act, 1935, where powers and duties are conferred by section 124 upon a Province or a Federated State there shall be paia by the Federation to the Province or the Federated State such sum as may be agreed Hence by the definitions given in . . . Hence by the given in the no different concept of the words "purposes of the Central Government" was intended from what was intended by the use of the words "Federal purposes" in section 138(1)(b) of the Government of India Act, 1935. These petitions therefore fail and are dismissed with costs. One hearing fee. Petitions dismissed.

The petitioners as partners of a registered firm were assessed to income tax for the relevant assessment years. Thereafter they made a disclosure of their income under a "Voluntary Disclosure Scheme" regarding profits which had escaped assessment, and on reassessment of the disclosed income income tax, super tax and surcharge were levied. The levy of surcharge but not income tax and super tax was challenged as unauthorised. Held, that the power to legislate for levy of tax on income was conferred upon the Federal Legislature by section 100 sub sections (1) and (2) of the Government of India Act, 1935, and item 54 of List I of the Seventh Schedule and the Federal Legislature was competent under that entry to legislate in regard to the levy of a surcharge on tax; section 138(1) proviso (b) did not restrict the amplitude of that legislative power. The term "Federal purposes" in section 138 is not defined in the Government of India Act nor in the ; but there is sufficient indication in the section itself that surcharges were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes therein mentioned. The concept of the words "purposes of the Central Government" under the was not different from what was intended by the use of the words "Federal purposes" in section 138(i) proviso (b) of the Government of India Act.

The appellant company was carrying on business in Bombay as commission agents. In the course of assessment proceedings for the year 1954 55, the Income tax Officer noticed from the ssee 's boo s of account that the assessee had business connections with certain nonresident parties and found that the transactions disclosed that through the assessee those non resident parties were receiving income, profits and gains. He considered that section 43 of the Indian Income tax Act, 1922, was applicable to the assessee and issued on March 27, 1957, a notice under section 34 of the Act for assessment of the assessee as an agent of the said non resident parties. The assessee pleaded, inter alia, that the proceedings intiated by the Income tax Officer under section 34 were barred since the notice issued by him was after the expiry of one year from the end of the assessment year 1954 55, but the Income tax Officer rejected the contention relying on the amendment made to the proviso to section 34(l)(b)(iii) by the Finance Act, 1956, under which the period of one year was changed to two years. The amendment was given retrospective operation upto April 1, 1956, but since the power to issue a notice under the unamended Act had come to an end on March 31, 1956, the question was whether the Income tax Officer could issue a notice of assessment to a person as an agent of a non resident party under the amended provision when the period prescribed for such a notice had before the amended Act came into force expired. HELD:The proceedings initiated by the Income tax Officer by the notice dated March 27, 1957, were barred; the authority of the Incometax Officer under the Indian Income tax Act before it was amended by the Finance Act of 1956 having come to an end, the amending provision would not entitle him to commence a proceeding even though at the date when he issued the notice it was within the period provided by the amendment. Notwithstanding the fact that there was no determinable point of time between the expiry of the time provided under the old Act and the commencement of the Amendment Act, in the absence of an express provision or clear implication, the legislature could not be said to have intended to attribute to the Amending provision a greater retros pectivity than was expressly mentioned.

This petition under Article 32 of the Constitution of India has been filed by an Association of about 2,000 em ployees working in 500 Railway Institutes and Clubs in various parts of the country claiming that they should be treated on the same par as the employees in the Statutory Canteens run by the Railway Administration. In support of their claim the petitioners while enumerating the range of activities handled by them, they have attempted to draw a parallel with the regular employees contending inter alia that not only they receive grants in aid and a number of facilities from the Govt. , the Railway Board has always treated these institutes and clubs as an integral part of the Railways. The Respondents resisted the petition stoutly and con tended that the Institutes and Clubs are managed by a Com mittee representing its membership which engages such staff as is required and meets the cost of their wages and allow ances etc., that the Railways are not the principal employ ers of their staff, that they are not paid directly from the Consolidated Fund of India and whatever facilities are provided to them they are confined to the wholetime staff as a special case and not on account of any obligation under any law. On consideration of respective contentions and documents on record while dismissing the petition, this Court. HELD: There is a material difference between the can teens run in the Railway establishments and the Institutes and Clubs. The Institutes/ Clubs have to run on the member ship fees and fixed grants received from the Staff Benefit Fund. The fund consists of receipts from the forfeited provident fund and bonus, and of fines. The grant is made as pointed out by the Respondents, to each Institute/Club at the rate of 595 Rs. 14 per capita of the non gazetted staff employed at the relevant establishment. Out of this contribution, only Rs.4 per capita are spent on the activities of the education. relief in case of distress and sickness, sports, scouts activities and for other miscellaneous purposes. There is further no dispute that the wages and allowances of the Staff of the Institutes/Clubs are paid by the Institutes/Clubs themselves and they are not subsidised by the Railway Administration as in the case of the statutory and non statutory recognised canteens. [600H] 160 [E F & G] On the facts, it cannot be held that there is a rela tionship of employer employee between the Railway Adminis tration and the employees engaged in the Institutes and Clubs. Neither law nor facts spell out such relationship. If the present service conditions of these employees are unsat isfactory, the remedy lies elsewhere. [603B C]

Against the judgment of the Single judge of the Punjab High Court dated January 5, 1953, in which he followed the decision of a Division Bench holding that section 7A of the Delhi and Ajmer Rent Control Act, 1947, was unconstitutional and void, the appellants preferred an appeal under the Letters Patent. Meanwhile the judgment or the Division Bench was brought up by way of appeal to the Supreme Court, and as the appeal was getting ready to be heard, the appellants made an application on January 5, 1959, for special leave to appeal to the Supreme Court against the judgment of the Single judge. No notice was given to the respondent to the application, and special leave was granted ex parte. The Letters Patents appeal was thereafter withdrawn by the appellants. When the appeal came on for hearing in due course, the respondent raised an objection to the hearing of the appeal on the grounds that the application for special leave was barred by limitation, that there were no sufficient reasons for condoning the long. delay of four years, and that the special leave granted ex parte should be revoked. 243 Held, that, in the peculiar circumstances of the case, leave should not be revoked. Expect in very rare cases, if not invariable, the Supreme Court should adopt as a settle rule that the delay in making an application for special leave should not condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave. Desirability of the Rules of the Supreme Court being amended suitably pointed out.

The appellant was assessed to pay tax on his income for the assessment years 1945 46 and 1946 47 under section 23(3) of the Income tax Act, 1922. Thereafter, on June 24, 1959, the Income Tax Officer issued a notice of reassessment under section 34 requiring the appellant to submit a return of his income assessable for the year ending March 31, 1946 on the ground that the income of the appellant had escaped assessment. The preamble to the notice however, referred to the assessment years 1946 4 7 and 1945 46. The appellant filed a return for the assessment year 1946 47, and when his attention was drawn to the body of the notice, he flied a fresh return for the assessment year 1945 46 admitting that he had misunderstood the notice. On March 14, 1963 the Income Tax Officer issued another notice under section 148 of the Income tax Act, 1961, calling upon the appellant to submit a return of his income for the assessment year 1946 47, on the ground that his income for that year also had escaped assessment. The appellant, thereupon flied a writ petition in the High Court for quashing the two notices dated June 24, 1959 and March 14, 1963 but the petition was dismissed. In appeal to this Court, on the questions, whether; (1 ) by the notice dated June 24, 1959 the appellant was called upon to file a return for the assessment year 1946 47 and therefore the reassessment proceedings for the assessment year 1945 46 were incompetent; and (2) since the appellant had submitted another re.turn for the assessment year 1946 47 the notice dated March 14, 1963. , was incompetent, because a notice under section 34 of the Income tax Act, 1922, or section 148 of the Income tax Act 1961, could not be issued so long as the return was not considered and disposed of, HELD: (1) Though there was some negligence in drawing up the preamble to the notice dated June 24, 1959 it did not affect its validity for the assessment year 1945 46. The appellant was clearly informed that he had to file a return of his income assessable for the year ending March 31, 1946 that is for the assessment year 1945 46, and the appellant himself had admitted his mistake in construing it. [706 B D] (2) The Act does not provide any machinery for dealing with voluntary returns filed by an assessee after assessment of income for the year of assessment was completed. When the income of the assessee had been assessed to tax, it was not open to him, to file another voluntary return and avoid the issue of a notice either under section 34 of the 1922 Act or section 148 of the 1961 Act. The cases, Commissioner of Income tax vs Ranchhoddas Karsondas, and Commissioner of Income tax vs section Raman Chettiar, 55 I.T.R. 630 (S.C.) on which the appellant relied are cases where there was no order of assessment for the rele 705 vant year and their principle has no application to the present case. Unless a notice of reassessment is issued by the Income Tax Officer, the assessee cannot, after an order of assessment is made, submit a return of his income for the year for which he was already assessed and call upon the Income Tax Officer to assess his income. [707 G; 708 C, F G]

In 1945 one R who was the thekadar of the proprietary rights of a village, sued the appellants and the respondents, other than the first respondent Board of Revenue, for their ejectment under section 171 of the U.P. Tenancy Act. alleging that the appellants had illegally sub let the lands to the respondents. The appellants and the respondents made a on cm denying the alleged 'sub letting and stating that the entries in the village records about the respondents being sub tenants were erroneous. The suit was dismissed in March, 1946, I.e., towards the end of 1353 F on the ground that there was no sub letting and the entries were not correct No attempt was made by anyone to bring the village records in harmony with this decision and the respondents continued to figure as sub tenants in these records. On his attention being drawn to this, the Lekhpal, on his own authority, removed the entries in favour of the respondents from the records for the year ending 1358 F but the entries for the year 1356 F were left undisturbed as it was not within the Lekhpal 's jurisdiction to alter these. After the U.P. Zamindari Abolition and Land Reforms Act came into force in 1952 i.e., at the beginning of 1360 F, on the strength of the Khasra and Khatauni of 1356F, the respondents claimed Adhivasi rights under section 20(b)(i) of the Act and. file six suits praying for the recovery of possession of the lands under 'section 232 of the Act. They lost the suits before the sub Divisional Officer and Additional Commissioner of Varanasi but succeeded in appeals to the Board of Revenue. The appellants thereafter filed writ petitions for quashing the orders of the Board; and the High Court although of the view that the impugmed orders of the Board of Revenue were wrong, held that the Board had jurisdiction to interpret section 20(b) as it thought proper; and as the orders passed by it were final without being subject to any appeal. they could not be quashed by certiorari as being mere errors of law. In appeal to this Court, it was contended, inter alia, on behalf of the appellants that (i) the correctness of the entry in the record of rights of 1356 F could be gone into and was capable of challenge in a court of law exercising jurisdiction under article 226; (ii) in the present case there was an adjudication in March 1946 that the 'respondents were not subtenants; consequently, unless they showed that they had thereafter become sub tenants, the benefit of the entry in their favor in 1356 F could not be availed of by them; (iii) in the Khasra of 1356 F the respondents were only recorded as sub tenants but not as occupants and could not therefore get the benefit of section 20 (b) (i) of the Act. HELD: Dismissing the appeals. The record of rights for the year 1356F had not been corrected afterwards. The court had to go by the entry in the record of rights and 499 no enquiry need be made as to when the respondents became sub tenants after the decision in the suit filed by R. As between the tenant and the sub tenant, the entry in the record of rights in favour of the sub tenant made him the occupant entitled to the adhivasi rights under section 20 of the Act. [5O4 G H] The Upper Ganges Sugar Mills Ltd. vs Khalil ul Rahman and others; , ; Amba Prasad vs Abdul Noor Khan Sukh Ram & Ors. , ; and Nanakchand vs Board of Revenue U.P. ; applied.

The appellant had issued notice to the respondents under section 34(1)( of the Income Tax Act, 1922 in respect of an escaped income of Rs. 47,595 for the assessment year 1944 45. The case of the respondents was that the impugned notice was bad because the Income Tax Officer proceeded against the respondents without obtaining the necessary sanction of the Central Board of Revenue as required by cl. (iii) of the proviso to section 34(1) of the Act. The respondents filed a writ petition in the High Court challenging the notice issued under section 34(1) of the article The respondents succeeded before the High Court. 438 Held: (i) The sanction under cl. (iii) of the proviso to section 34(1) is, however, necessary only where the notice in question is issued under cl. (ii) of the proviso. That is evidently what the legislature meant when it said "in any case failing under cl. (ii)". The words "in any case" used in cl. (iii) only mean a case in which notice can be issued under cl. Such a notice can be issued only when the escaped income is of one lakh of rupees and over. Clause (iii) requires such sanction where the notice is issued under cl. (ii) and when on a construction of cl. (ii), no notice can be issued with respect to a class of escaped assessments, there can possibly be no requirement of the sanction of the Central Board of Revenue. If a notice is issued by virtue of some other provision sub as the second proviso to sub section (3) of section 34, it would be a notice "in any other case" referred to in cl. (iii) of the proviso to sub section (1) of section 34 and in such a case the sanction which is required is only that of the Commissioner. Such a sanction was obtained in this case and therefore, the notice cannot be said to be bad because the sanction of the Central Board of Revenue had not been obtained. In the present case the income which has escaped assessment is below one lakh of rupees and more than eight years have elapsed since the assessment year in respect of which the income is alleged to have escaped assessment. Clearly, therefore, no notice could issue under cl. (ii) The High Court erred in holding that the provisions of the second proviso to section 34(3) would not apply to a case where the escaped assessment is of an amount less than a lakh of rupees and more than eight years have elapsed. Apparently, the High Court has overlooked the fact that the second proviso to sub section (3) of section 34 was amended first by Act 25 of 1953 and then by Act. 18 of 1956. The amendment of 1956 would govern the whole of section 34(1) and would consequently include even an escaped assessment with respect to which limitation is provided in cl. (ii) of the first proviso to section 34(1). The result would be the same even if the case fell to be governed by the Amending Act of 1953, though not by that of the Amending Act of 1956.

The petitioner in Petition No. 143 was the Moopil Nair of the Kavalappara sthanam and, as the sthanee, claimed to be the sole proprietor of the sthanam properties. The respondents Nos. 2 to 17, who were the junior members of the Kavalappara tarward or family, resisted the claim on the ground that the properties were tarward properties and they had rights in them. There was litigation between the parties and ultimately the Privy Council held in favour of the petitioner. The petitioner transferred some of the properties to his wife and two daughters and son and they were the petitioners in the two other petitions. The parties were governed by the Marumakkathayam Law and in 1955 the Madras Legislature, purporting to remove certain misapprehensions evident in decisions of courts, passed the Madras Marumakkathayani (Removal of Doubts) Act, 1955 (Act 32 of 1955) which by section 2 provided as follows: " 2. Certain kinds of sthanam properties declared to be tarward properties : Notwithstanding any decision of Court, any sthanam in respect of which (a)there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarward, or (b)the members of the tarwad have been receiving main tenance from the properties purporting to be sthanam properties as of right, or in pursuance of a custom or otherwise, or (c)there had at any time been a vacancy caused by there being no male member of the tarwad eligible to succeed to the sthanam, shall be deemed to be and shall be deemed always to have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which the provisions of the Madras Marumakkathayam Act, 1932, (Madras Act XXII Of 1932), shall apply." 317 Immediately after the publication of the Act, the respondents Nos. 2 to 17, published notices in the press that by reason of the passing of the Act, Kavalappara estate had become their tarwad property and that rents could be paid to the sthanee only as the Karnavan of the properties and not otherwise. The notices further stated that the donees under the two deeds of gift executed by the sthanee were not entitled to the properties conveyed to them and should not be paid any rents at all. One of the respondents filed a partition suit and others also contemplated doing the same. The petitioners sought for a writ of mandamus or any other writ or order directing the respondents to forbear from enforcing the impugned Act against the sthanee and the sthanam estate and declaring the Act to be unconstitutional and invalid. Preliminary objection was raised on behalf of some of the respondents as to the maintainability of the petitions and it was contended that (1) the prayer for a writ of mandamus Was not maintainable since there was an adequate remedy in the partition suit filed by one of the respondents ; (2) that violation of right of property by private individuals was not within the purview of article 19(1)(f) or article 31(1) and the remedy was not by way of application under article 32; (3) that no application under article 32 could be maintained until the State had taken or threatened to take any action under the impugned law that would infringe fundamental rights; (4) that the proceeding under article 32 could not be converted into or equated with a declaratory suit under section 42 Of the Specific Relief Act in and (5) that this court could not, on an application under article 32, embark upon an enquiry into disputed questions of fact. Held (per Das, C. J., Bhagwati, Sinha and Subba Rao, jj.), that all the contentions must be negatived and all the preliminary objections must fail. The right to enforce a fundamental right conferred by the Constitution was itself a fundamental right guaranteed by article 32 of the Constitution and this court could not refuse to entertain a petition under that Article simply because the petitioner might have any other adequate, alternative, legal remedy. Rashid Ahmed vs Municipal Board, Kairana, ; and Romesh Thappar vs The State of Madras, [1950] S.C.R. 594, referred to. In the instant cases as the grievance of the petitioners was primarily against the impugned Act passed by the Madras Legislature, which was a State as defined by article 12 of the Constitution and the dispute was not one between two sets of private individuals but between the petitioners on the one hand and the State and persons claiming under a law made by the State on the other, article 32 must apply. P.D. Shamdasani vs Central Bank of India Ltd., [1952] S.C.R. 391, distinguished and held inapplicable. Where an enactment such as the impugned Act, unlike 318 others that contemplated some further action to be taken by the State after the enactment had come into force, automatically took away or abridged a person 's fundamental rights immediately it came into force, there was no reason why the aggrieved person should not immediately be entitled to seek the ' remedy under article 32 Of the Constitution. State of Bombay vs United, Motors (India) Limited, ; and Himmatlal Harilal Mehta vs The State of Madhya Pradesh, , referred to. In view of the language used in section 2 of the impugned Act and its effect, there could be no doubt that the petitioners could legitimately complain that their fundamental right to hold and dispose of the sthanam properties have been violated by the action of the Legislature. Article 32 of the Constitution conferred wide powers on this Court and such powers were not confined to the issuing of prerogative writs alone. In appropriate cases, this court had the right in its discretion to frame its writs or orders suitable to the exigencies created by enactments. It was clear on the authorities that this Court could, where the occasion so required, make even a declaratory order with consequential relief under article 32 of the Constitution. Chiranjit Lal Chowdhury vs The Union of India, [1950] S.C.R. goo, Rashid Ahmed vs Municipal Board, Kairana, [1950] S.C.R. 566, T. C. Basappa vs T. Nagappa, ; and Ebrahim Vazir Marat vs The State of Bombay, [1954] S.C.R. 933, relied on. Maharaj Umeg Singh vs The State Of Bombay, [1955] 2 S.C.R. 164, considered. This court would fail in its duty as the custodian and pro tector of the fundamental rights if it were to decline to entertain a petition under article 32 simply because it involved the determination of disputed questions of fact. Clause (2) of article 32 conferred on this court the power to issue directions or orders or writs of various kinds mentioned therein and in dismissing a petition, it had either to hold that any particular writ asked for was not appropriate to the occasion or that the petitioner had failed to establish a fundamental right or its breach . In either case, however, it had to decide the petition on merits. Chiranjit Lal Chowdhuri vs The Union of India, [1950] S.C.R. 869,Kathi Raning Rawat vs The State of Saurashtra, ; and Ramkrishna Dalmia vs Shri ' justice section R. Tendolkar; , , referred to. In appropriate cases opportunity might also be given to the parties to establish their cases by further affidavits, or by issuing a commission or even by setting the application down for trial on evidences. Per Wanchoo, J. If the petitions were based solely on the infringement of article 14, there could be no doubt that they would not be maintainable. Even though they were based on the 319 infringement of article 19(1)(f) also, their maintainability would still be in doubt in the absence of any further provision in the impugned Act for its direct enforcement by the State.

Appeal No. 462 of 1957. Appeal by special leave from the judgment and decree dated April 18,1952, of the former Nagpur High Court in First Appeal No. 88 of 1942. C.B. Agarwala and K. P. Gupta, for the appellant No. 1. Har Dayal Hardy and N. N. Keswani, for respondent No. 1. 1961. March 16. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave is directed against the judgment and decree of the High of Judicature at Nagpur confirming the judgment of the 2nd Additional District Judge, Jabalpur in Civil Suit No. 9 A of 1942, filed by respondents 2 to 7 herein claiming to be the reversioners of the estate of one Raja Ajitsingh. Ajit Singh was the Raja of Saliya Estate consisting of 73 villages and other property situate in Jabalpur and Saugor Districts. Ajit Singh died on January 2, 1910, leaving behind him two widows named Rani Khuman Kuar and Rani Anant Kuar and an illegitimate son named Ramraghuraj Singh. Rani Anant Kuar died in or about 1914 and Rani Khuman Kuar passed away on February 1, 1922. After the death of Raja Ajit Singh, the Estate was taken over by the Court of Wards on behalf of the widows in the year 1913 and remained in its possession till March 27, 1923. After the death of Rani Khuman Kuar, the local Government issued a notification recognizing Ramraghuraj Singh as the successor to the Estate; but, for one reason or other, the 349 Court of Wards continued to manage the Estate on his behalf from September 23, 1923. Ramraghuraj Singh died on April 23, 1932, and on his death the, first respondent, the son of Ramraghuraj Singh, was, declared as the ward of the Court of Wards which continued to manage the Estate on his behalf Respondents 2 to 6, claiming to be the reversioners to the Estate of Raja Ajit Singh, filed a suit on June 15, 1935, for recovery of possession of the Estate. Appellants 1 and 2 are alleged to be the assignees pendente lite of the interest of the alleged reversioners. The plaintiffs averred that RamraLhurai Singh was the son of one Jhutti by her husband one Sukhai and that as Raja Ajit Singh had no issue, he and the Ranies treated the boy as their son, that the Lodhi community to which Raja Ajit Singh belonged was not a sudra caste and that, therefore, even if Ramraghuraj Singh was the illegitimate son of Raja Ajit Singh, he was not entitled to a share, and that in any view half of the share of the widows in the Estate would devolve, on their death, on the reversioners to the exclusion of the illegitimate son. They further pleaded that the possession of the Court of Wards of the entire Estate from January 2, 1910 to February 1, 1922, was adverse to the illegitimate son and, therefore, he lost his title, if any, to the said Estate. The case of the first respondent was that Raja Ajit Singh belonged to the sudra caste, that Ramraghuraj Singh was the son of the said Raja by a continuously and exclusively kept concubine named Raj Dulari, that the widows never questioned the right of Ramraghuraj Singh to a share in the property of Raja Ajit Singh, that therefore there was no scope for the plea of adverse possession, and that, after the death of the widows, the succession to the Estate of Raja Ajit Singh in respect of one half share opened out and the illegitimate son, he being the nearest heir, succeeded to that share also. The trial court as well as the High Court concurrently gave the following findings: (1) Raja Ajit Singh belonged to the sudra caste; (2) Raja Raghuraj Singh was the son of Raja Ajit Singh by a continuously and 350 exclusively kept concubine by name Raj Dulari, who had passed into the coneubinage of Raja Ajit Singh after the death of her husband; (3) as the illegitimate son of Raja Ajit Singh, Ramraghuraj Singh succeeded to a moiety of the Estate of his putative father and the two widows of Raja Ajit Singh succeeded to the other moiety of his Estate; (4) as there was no daughter or daughter 's son, after the death of the widows, Ramraghuraj Singh, being the sole surviving heir of his putative father, inherited a moiety of the Estate which was held by the widows during their lifetime; (5) Ramraghuraj Singh was all along in joint possession of the Estate with the widows, and, although the Court of Wards had assumed superintendence on behalf of the Ranies, he was not out of possession during their lifetime and as such his title could not be extinguished by adverse possession; (6) the plaintiffs ' suit was barred under section 26 of the Central Provinces Court of Wards Act; and (7) the plaintiffs ' claim was barred by limitation. While the trial court held that it had not been established that the plaintiffs were the reversioners of Raja Ajit Singh, the High Court held that it had been proved. In the result the trial court dismissed the suit and, on appeal, the High Court confirmed it. The 2nd appellant died and his legal representatives were not brought on record and the appeal so far as the 2nd appellant is concerned has abated. The 1st appellant alone proceeded with the appeal. It is the usual practice of this Court to accept the concurrent findings of the courts below. There are no exceptional circumstances in this case, at any rate none was brought to our notice, to compel us to depart from the usual practice. We, therefore, accept the concurrent findings, namely, that Raja Ajit Singh was a member of the sudra caste and that Ramraghuraj Singh was the son of Raja Ajit Singh by a continuously and exclusively kept concubine named Raj Dulari, who passed into his concubinage after the death of her husband. The main question that arises in this appeal is whether an illegitimate son of a sudra vis a vis his selfacquired property, after having succeeded to a half 351 share of his putative father 's estate, will be entitled to succeed to the other half share got by the widow, after the succession opened out to his putative father on the death of the said widow. The answer to the question depends upon the content of the right of an illegitimate son to succeed to the self acquired property of his putative father. The source of his right is found in the relevant Hindu Law texts. Mitakshara in explanation of the texts of Manu and Yajnavalkya says in Chapter 1, section 12, in the following three verses thus: "1. The author next delivers a special rule concerning the partition of a Sudra 's goods. 'Even a son begotten by a Sudra on a female slave may take a share by the father 's choice. But, if the father be dead, the brethren should make him partaker of the moiety of a share: and one, who has no brothers, may inherit the whole property, in default of daughter 's sons '. 2.The son, begotten by a Sudra on a female slave, obtains a share by the father 's choice, or at his pleasure. But, after the demise of the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share: that is, let them give him half as much as is the amount of one brother 's allotment. However, should there be no sons of a wedded wife, the son of the female slave takes the whole estate, provided there be no daughters of a wife, nor sons of daughters. But, if there be such the son of the female slave participates for half a share only. 3.From the mention of a Sudra in this place it follows that the son begotten by a man of a regenerate tribe on a female slave, does not obtain a share even by the father 's choice, nor the whole estate after his demise. But, if he be docile, he receives a simple maintenance. " No mention of a widow is found in the above verses, but in Dattaka Chandrika, the author says in V. 30,31 thus: "If any, even in the series of heirs down to the 352 daughter 's son, exist, the son by a female slave does not take the whole estate, but on the contrary shares equally with such heir." The leading decision on the rights of an illegitimate son is that of the Judicial Committee in Raja Jogendra Bhupati Hurri Chundun Mahapatra vs Nityanund Mansingh (1). There, one Raja died leaving behind him a legitimate son and an illegitimate son. On the death of the legitimate son, who had succeeded to the Raja, it was held that the illegitimate son succeeded to him by survivorship. Sir Richard Couch cited two verses from Mitakshara Chapter 1, section 12. We have already extracted the said verses. Commenting upon these verses, the learned Judge observed at P. 132 thus: "Now it is observable that the first verse shews that during the lifetime of the father the law leaves the son to take a share by his father 's choice, and it cannot be said that at his birth he acquires any right to share in the estate in the same way as a legitimate son would do. But the language there is very distinct, that "if the father be dead the bre thren should make him partaker of the moiety of a share". So in the second verse the words are that the brothers are to allow him to participate for half a share, and later on there is the same expression: "The son of the female slave participates for half a share only". " On that interpretation, he accepted the view of the Bombay High Court and held that an illegitimate son and a legitimate son, being members of an undivided Hindu family governed by Mitakshara, the illegitimate son becomes entitled to the whole of the immoveable property of the family if the legitimate son dies without any male issue. The Judicial Committee again considered the right of an illegitimate son in Kamulammal vs Visvanathaswami Naicker (2). There it was held that in a competition between a widow and an illegitimate son to the property of his putative father, the illegitimate son takes half of the (1) (1890) L.R. 17 I.A. 128. (2) (1922) L.R. 50 I.A. 32. 353 property and the widow the other half. Sir Lawrence Jenkins observed at p. 37 thus: "Here the contest is between the illegitimate son and the widow, and though the widow is not named in the text it is well settled that as a preferential heir to the daughter 's son she is included among those who share with the illegitimate son, and it would serve no useful purpose to speculate why she was not mentioned in the text. " The status of the illegitimate son was subject of further scrutiny by the Privy Council in Vellaiyappa Chetty vs Natarajan (1). There the question arose in the context of an illegitimate son 's right to maintenance from a joint family property after the death of his father who left no separate property. The Judicial Committee held that he was entitled as a member of the family to maintenance out of the joint family property in the hands of the collaterals with whom the father was joint. In dealing with the question of status of an illegitimate son, Sir Dinshah Mulla, speaking for the Court, after considering the relevant Hindu Law texts and decisions, arrived at the following conclusion at p. 15: "On a consideration of the texts and the cases on the subject their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son;. . . It is not necessary to multiply decisions. The law pertaining to the right of inheritance of an illegitimate son to his putative father 's; self acquired property may be stated, thus: An illegitimate son has the status of a son under the Hindu Law and he is a member of the family. But his rights are limited compared to those of a son born in wedlock. He has no right by birth and, therefore, he cannot demand partition during his father 's lifetime. During the lifetime of his father, the law allows the illegitimate son to take (1) Mad. 1. 45 354 only such share as his father may give him. But on his father 's death, he takes his father 's self acquired property along with the legitimate son and in case the legitimate son dies, he takes the entire property by survivorship. Even if there is no legitimate son, the illegitimate son would be entitled to a moiety only of his father 's estate when there is a widow, daughter or daughter 's son of the last male holder. In the absence of any one of the three heirs, he succeeds to the entire estate of his father. From the premises it follows that an illegitimate son, except to the extent circumscribed by the. Hindu Law texts, has the status of a son and is heir to the self acquired property of his putative father. If that be his undoubted right under the Hindu Law, on what principle can he be deprived of his right of succession to the other moiety of his father 's property after the death of the widow? Under the Hindu Law, the death of the widow opens inheritance to the reversioners and the nearest heir at the time to the last full owner becomes entitled to possession. When the succession opens, in a competition between an illegitimate son and other reversioners, the illegitimate son is certainly a nearer heir to the last male holder than the other reversioners. If he was the nearest heir only yielding half a share to the widow at the time of the death of his putative father, how does he cease to be one by the intervention of the widow 's estate? As on the death of the widow the estate reverts back to the last male holder, the succession shall be traced to him, and, if so traced, the illegitimate son has a preferential claim over all other reversioners. In Mayne 's Hindu Law, 11th edn., this position has been controverted in the following manner at p. 637: "The illegitimate Bon, though he inherits on the death of his putative father, along with or in default of male issue, widow or daughter, cannot come in as a reversionary heir on the death of the widow or daughter, as he is undoubtedly neither a sagotra nor a bhinnagotra sapinda of the last, male holder within the text of Manu. " We regret our inability to accept this proposition. 355 for, if accepted, we would be speaking in two voices. Once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative father 's entire self acquired property in the absence of a son, widow, daughter or daughter 's son and to a share along with them, we cannot see any escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widow 's death. The intervention of the widow only postpones the opening of succession to the extent of half share but it cannot divert the succession through a different channel, for she cannot constitute herself a new stock of descent. The opinion expressed in Mayne 's Hindu Law is sought to be supported by the author by reference to a decision of the Madras High Court in Karuppayee Ammal vs Ramaswami (1). But a reference to that judgment shows that no such proposition has been laid down therein. There the facts were that on the death of a sudra, the last male owner of an estate, his widow succeeded to a moiety thereof and his illegitimate son to the other moiety; the widow then died leaving behind her a son of the daughter of the last male owner and the illegi timate son above mentioned. The Madras High Court held that the daughter 's son was entitled to the moiety that had vested in the widow and the illegitimate son was not entitled to any portion thereof. The reason for that conclusion is found at p. 868 and it is: "The principle underlying the doctrine of reverter referred to is that the last male holder 's estate is inherited by females who have no free right of alienation and who hold a peculiar kind of estate called "woman 's estate" and on whose death the then heir of the last male holder succeeds to the last male holder 's estate. From its very nature, the doctrine could not apply legitimately to a case where the last male holder 's estate vested on his death not in a female heir but in a male heir also. In such a case, the doctrine as such would not strictly apply, nor has it been, so far as we are aware, applied to such a case." (1) Mad. 356 The reason of the decision is therefore clear and that is when a daughter 's son succeeds to an estate, there is no further scope for the application of the doctrine of reverter. The learned Judges expressly left open the present question when they said, "We are not now concerned with the question as to what would become of the property if the last of the daughters died without leaving a daughter son, in such circumstances". This decision cannot, therefore, be invoked in support of the contention that in a case where the doctrine of reverter applies the illegitimate son is excluded from succession. On the other hand, the Nagpur High Court in Bhagwantrao vs Punjaram (1) rightly came to the conclusion that where on a partition between a legitimate and an illegitimate son, the widow was allotted a share, on her death the illegitimate son was entitled to a share in the property. We, therefore, hold that on the death of the widow, the illegitimate son, the father of the first respondent herein, succeeded to the other half share of the estate of his putative father Raja Ajit Singh. It is. next contended that the widows acquired an absolute interest in the estate of Raja. Ajit Singh by adverse possession and, therefore, the property would devolve; not on Raja Ajit Singh 's heirs but on the heirs of the widows. On the question of adverse possession also, both the courts below have held against the appellant. But learned counsel argued that in the circumstances of this case the said find ing was a mixed question of fact and law. It was said that the courts below missed the point that the Court of Wards, representing the widows, held the Estate adversely to Ramraghuraj Singh in respect of his half share and, therefore, the fact that during its management the widows did not deny the title of Ramraghuraj Singh or the fact that they admitted his title could not affect the question of adverse possession. Assuming that learned counsel for the appellant was correct in his contention, we fail to see how the said legal position would advance the appellants case, for the Court of Wards admittedly managed only the (1) I.L.R. 357 widows ' limited estate and it is not the case of the appellant that the Court of Wards acquired on behalf of the widows an absolute interest in respect of the half share of Ramraghuraj Singh in the suit properties. The plaintiffs themselves claimed to hereversioners of Raja Ajit Singh on the ground that the succession to him opened out when the widows died; and if their contention be accepted, namely, that the widows acquired an absolute interest in half of the property, they would be non suited in respect thereof on the simple ground that their suit was not to recover the property as the heirs of the widows. But, as we have pointed out, the widows would have acquired a title by adverse possession in respect of the share of Ramraghuraj Singh only in their capacity as owners of a limited estate i.e., in regard to their half share they held it as widow 's estate and in respect of the other half share of Ramraghuraj Singh they acquired a right by adverse possession only a limited estate therein. The result would be, when the widows died the succession to the estate of Raja Ajit Singh would open out and the illegitimate son, as the nearest heir, would succeed to the entire estate. We, therefore, reject this contention. In the result, the appeal fails and is dismissed. The respondent will not get any costs as the Advocate for the respondent is absent in 'the Court when the judgment is being delivered. Appeal dismissed.

A Sudra Hindu died leaving two widows and an illegitimate son by a continuously and exclusively kept concubine. The son succeeded to a moiety of the estate and the widows succeeded to the other moiety. The widows died without leaving any daughter or daughter 's son. The reversioners filed a suit for recovery of possession of the estate. The illegitimate son contended that on the death of his father he was entitled to succeed to half the estate the other going to the widows and that on the death of the widows he was entitled to the half share held by them. Held, that the illegitimate son succeeded to half the estate upon the death of the father and succeeded to the other half on the death of the widows. An illegitimate son has the status of a son under the Hindu Law; but he has no rights by birth and cannot claim partition during his father 's lifetime. On the father 's death he takes his father 's self acquired property along with the legitimate son and in case the legitimate son dies, he takes the entire property by survivorship. If there is no legitimate son, he would be entitled only to a half share when there is a widow, daughter ox daughter 's son of the last male holder. In the absence of any one of these three heirs, he succeeds to the entire state. If the widow succeeds to half the estate, upon her death succession again opens to half the estate of the last male 348 holder held by her and the illegitimate son, who has the status of a son, has a preferential claim over all other reversioners. Raja jogendra Bhupati Hurri Chundun Mahapatra vs Nityarnund Mansingh, (1890) L.R. 17 I.A. 128, Kamulammal vs Visvanathaswami Naicker, (1922) L.R. 50 I.A. 32 and Vallaiyappa Chetty vs Natarajan, Mad. 1, referred to. Karuppayee Ammal vs Ramaswami, Mad. 856, distinguished. Bhagwantrao vs Punjaram, I.L.R. , approved.

The appellant was elected on 18.8.1986 as one of the Directors of the District Central Co operative Bank, Chandrapur, Maharashtra from the Brehmapuri Agricultural Sales and Purchase Society. On 8.1.1987 the District Deputy Registrar of the Co operative Societies, Chandrapur issued a notice to him under section 78(1) of the Act to show cause as to why he should not be removed from the Board of Directors of the Bank and from the Executive Committees of other Co operative Societies in the District for having remained in arrears of the loan instalments due from him on the date of filing of nomination papers for election to the post of Director of the Bank and thereafter till 21.10.1986 when he actually repaid the dues thereby incurring the disqualification as contemplated by section 73FF of the Act. The appellant showed cause and by additional reply took the stand that he had not committed any default after the amended section 73FF came into existence. This was rejected and by Order dated 7.12.1987 passed by the Assistant Registrar Co operative Societies, Chandrapur he was removed from the post of Director holding him to be a defaulter under section 73FF of the Act. Appeal against that order was dismissed by the District Joint Registrar and his revision therefrom made under section 154 of the Act too met the same fate at the hands of the Cooperative & Textile Department, State of Maharashtra, Bombay Dismissing his Writ Petition filed thereafter, the High Court of Bombay held that when the appellant contested the election he was a defaulter and even though he had paid all the debts on 21.10.1986 yet he could not be absolved of the disqualification on the day he contested the election. In the appeal before this Court it was argued on behalf of the appellant that the impugned order of the Assistant Registrar removing him from the Board of Directors was without jurisdiction in as much as 676 the Act prescribes separate procedure for calling in question the election and that procedure having not been followed the Assistant Registrar could not have acted under section 78(1) of the Act; that the entire loan having been repaid before the issue of notice under section 78(1) he was not a defaulter in presenti and lastly even assuming that the disqualification on the ground of default is common both for election and continuation as Director in the Committee, the special provision for calling in question an election mut prevail over section 78. Rejecting the contentions and dismissing the appeal, the Court. HELD: If the impugned order is found to have been passed by way of setting aside the election of the appellant, it would be bad as his election had not been called in question in accordance with the procedure prescribed by the Act. However, the notice has ex facie been issued under section 78 of the Act. No doubt there is reference to his having been a defaulter and disqualified for being elected but it has been addressed to him as Director on the Board of Directors. It also refers to his being disqualified "to be elected or to continue as Director or Executive Committee member of the Executive Committee" under section 73FF of the Act and about ceasing to be a Director by committing default. From the above contents, there is no room for holding that the appellant 's election has been set aside by the impugned order. On the other hand, the emphasis is on his being disqualified to continue as Director or ceasing to be Director on account of his having committed default. [682F 683A] The day an instalment falls due on its due date, failure to pay results in default and this default continues day after day until it is repaid. The appellant can be said to have made default on the first day of his directorship and on every subsequent day till instalments were paid. The appellant was a defaulter immediately on the coming into force of section 73FF and so long that default continued he must be taken to have made default until repayment. [683G 684A] Sub section (2) of Section 73FF says that a member who has incurred any disqualification under sub section (1) shall cease to be a member of the committee and his seat shall thereupon be deemed to be vacant. Therefore, the moment the appellant after election continued to be in default and must be taken to have made default, stood disqualified and thereby ceased to be a member of the Committee and his seat deemed to have fallen vacant. In this view of the matter the notice of the Deputy Registrar was in effect to say that the appellant had already ceased to be a director and his seat already fell vacant. In Keshaorao 677 Narayanrao Patil vs District Deputy Registrar, reported in , Bombay High Court held that section 73FF(2) did not operate automatically and that passing of an order of removal was necessary. This has to be interpreted in the context of the provisions in the section. [684B D] Hundraj Kanayalal Sajnani vs Union of India, A.I.R. at 1121; Zaverbhai Amaidas vs The State of Bombay, [1955] 1 S.C.R. 799; Maharashtra State Board of Education vs Paritosh Sheoth, ; , distinguished. Keshaorao Narayanrao Patil vs District Deputy Registrar, , approved.

On the strength of the permission granted by the Revenue Divisional Officer, as required under clause 6 of the Orissa Scheduled Areas Transfer of Immovable Property by Scheduled Tribes Regulation 3 of 1956 and Rule 4 made thereunder, to sell his private property to a non scheduled Tribe person for a sum of Rs. 4000/ , Respondent 3 sold his property on January 2, 1964 by a registered deed of sale to the appellant, despite an attachment order passed by the Executing Court on July 13, 1963 on an application dated June 28, 1963 made by Respondent 1 to recover the decretal amount as per the money decree obtained by him on August 18, 1962 against Respondent 3 and his mother Respondent 4. Later, Respondent No. 1 however, produced the copy of the order passed by the R.D.O. dated October 23, 1963, at the instance of appellant in the Executing Court and got the property put to sale on May 15, 1964. In the court auction respondent 2 son of respondent 1 purchased the property. On June 22, 1964, the appellant filed an application under order 21 Rules 89 and 90 and Section 47 and 151 C.P.C. for setting aside the auction sale on the ground that the attachment and the auction sale were void for want of permission from the competent authority under Orissa Regulation 2 of 1956 and also due to fraud committed by the decree holder. The application was allowed followed by confirmation by the appellate judge, in appeal. But the High Court in Second Appeal reversed it accepting the contention of res judicata. Allowing the appeal by special leave, the Court. ^ HELD: 1. Both clauses 6 of the "Orissa Scheduled Areas Transfer of Immovable Property by Scheduled Tribes Regulation 2 of 1956, and Rule 4 made thereunder, provide that no immovable property belonging to a member of the scheduled Tribe is liable to be attached or sold except in accordance with the permission granted by the competent authority. Prior to the sale to the private party, the property was undoubtedly attached in execution proceedings on July 13, 1963, but the order of attachment was void, being contrary to the express inhibition contained in clause 6 of Regulation 2 of 1956 read with Rule 4 made thereunder. [200E G] 2. The auction sale is bad and invalid: It is elementary that what can be brought to sale in a Court sale is the right, title and interest of the judgment debtor and therefore, the auction purchaser can get nothing more than that right, title and interest. In the instant case, the appellant having become an owner of the property on account of the 197 Private sale dated January 2, 1964 respondent 3 had no saleable interest left in the property which could be put to auction. The auction sale therefore cannot displace the title of the appellant which is the same thing as saying that as between the title of the appellant and the so called title of the auction purchaser the appellant 's title must prevail. [200G H, 201A] Moreover, as the condition imposed by the R.D.O. regarding the price was violated by the auction sale, the auction purchaser cannot get a valid title to the property under that sale. In the private sale, the appellant purchased the property for Rs. 4,000/ and therefore the condition of the permission was complied with. But the auction sale was held in satisfaction of the decretal dues which were far less than Rs. 4,000/ the decree itself being in the sum of Rs. 1,000/ and odd and the highest bid at the auction being of Rs. 3,000/ only.[201 B C] 3. (a) The basic issue being the validity of auction sale in favour of respondent 2, no question of res judicata can arise. the appellant claims through the judgment debtor and neither the latter nor the decree holder ever disputed that he, the judgment debtor, was a member of the Scheduled Tribe. On the other hand both of them were conscious of the situation that the property could not be sold without the sanction of the R.D.O., Nowrangpur. The decree holder himself apprised The Executing Court of that position. The permission which was granted by the R.D.O., Nowrangpur at the instance of the appellant was produced by respondent 1 in the execution proceedings as if the permission was granted in sis favour for the sale by respondent 3 of his property. The failure, therefore, of the judgment debtor to raise any particular contention cannot operate as res judicata actually or constructively, either against him or against the appellant. [201 D F] (b) Whether "Bhotras" fall within any of the sub groups of the Scheduled Tribes enumerated in Part IX of the Schedule to the Constitution (Scheduled Tribes) Order, 1950 is a question which could not have been permitted to be raised for the first time in the Second Appeal. Much less can it be allowed to be raised in this Court in an appeal under article 136 of the Constitution.[200C D]

Respondent Nos. 4 to 6 sold their 3/5th share of the ancestral land to the appellant for Rs.14,000, as the ven dors left their village and wanted to settle elsewhere where they purchased 80 kanals of Nehri land. Respondents Nos. 1 to 3 filed a declaratory suit in the court of Sub Judge, Ludhiana seeking a declaration that the sale of the suit land would not affect their reversionary rights after the death of respondents 4 to 6. They pleaded that the land was ancestral and according to the custom governing the parties, it could not be alienated; they also asserted that the land was sold without any consideration and legal necessity. The appellant defendant No. 1, contended that the sale was an act of good management on the part of the alienors, and that the same was not without consideration/the vendors having decided to settle elsewhere. The trial court held that the sale was an act of prudent management and was not without consideration. As regards the custom it held that the parties were governed by custom, whereunder ancestral land could not be alienated except for legal necessity or as an act of good management. The suit was accordingly dismissed and the first appeal preferred against that decision failed. Respondents 1 to 3 thereafter preferred Regular Second Appeal before the High Court. The High Court allowed the appeal, set aside the sale holding that it was neither for any legal necessity nor could it be justified as an act of good management. The suit was accordingly decreed. Hence this appeal by the appellant defendant No. 1 by special leave. 418 Before this Court the appellant contended that the sale was or was not an act of good management having been a question of fact, the trial court as also the first appel late court having arrived at a concurrent finding that it was an act of good management, the High Court should not have interfered with that finding. On the other hand the respondents contended that the sale was not an act of good management. Allowing the appeal, this Court, HELD: The custom is that the ancestral immovable proper ty is ordinarily inalienable specially amongst Jats residing in the Central Districts of Punjab, except for necessity and the other permissible reasons. All alienation as a bona fide act of good management has been treated as one of necessity and hence valid. [233B] In the instant case, the vendee proved the ingredients of good management and the concurrent finding of the Trial Court and the first appellate court was that the impugned sale was an act of good management, and it was essentially a finding of fact. [234F] The High Court was, therefore, in error in setting aside the concurrent finding of fact in the facts and circum stances of the case in Second Appeal. Gujar vs Sham Das, 107 P.R. 1887; Mohammad Chiragh and Ors. vs Fatta & Ors., AIR 1934 Lahore 452; Abdul Rafi Khan vs P. Lakshmi Chand and Ors., AIR 1934 Lahore 998; Dial Singh vs Surain Singh, AIR 1937 Lahore 493; Gujjan Singh and Ors. vs Atma Singh, 1968 PLR Vol. 70 195.

The parties to the litigation leading to this appeal are governed by the Aliyasantana law prevalent in the district of South Kanara. They were members of a Kutumba descended from a common ancestress by name Manjekke. One Parameshwari and her son and daughter instituted original suit No. 91 of 1950 before the Court of the Subordinate Judge South Kanara for partition of properties in accordance with the provisions of Madras Aliyasantana Act, 1949. The suit was dismissed, but on appeal the High Court reversed it. The High Court passed a preliminary decree on 28 6 1961 and remanded the suit for further proceedings. In the trial a joint memo was filed by the parties on 25th September 1963 accepting the shares as per the memo. Defendants 22 to 24 in the suit were allotted 85176 shares out of a total of 6,15,264 shares. Defendants 22,23,24 were all male members of the 'Kutumba ' and were 'Nissanthathi kavaru '. On the death of the 23rd and 24th defendants their legal Representatives who were brought on record filed R.I.A. No. 2266/66 and R.I.A. 2259/66 respectively claiming that out of the share allotted to the Kavarus of defendants 22 to 24, one third representing the share or interest of the 23rd and 24th defendants be allotted to them. The petition was opposed on the ground that each one of the defendants 22, 23, and 24 was a separate 'Nissanthathi Kavaru ' and on the death of each of the defendants 24 and 23, his share or interest devolved upon the 'Santhathi Kavaru ' nearest to him to which defendants 11, 12 and 16 belonged. The plea of the 22nd defendant was that all the three defendants 22, 23 and 24 constituted one single Nissanthathi Kavaru to which, under the preliminary decree one single or joint share was allotted and, therefore, the said share survived to the last surviving member thereof (22nd defendant) and that no devolution on a 'Santhathi Kavaru ' under sub section (5) of Section 36 is possible until the last member of 'Nissanthathi Kavaru ' viz. the 22nd defendant dies. The trial court found that in the High Court decree dated 20 6 1961 defendants 22 to 24 were allotted shares jointly. It further held that defendants 22, 23 and 24 formed three 'Nissanthathi Kavarus ' as their mother was dead at the time of the filling of the suit and partition was effected and there was no undivided interest in the property when they died so as to attract the provisions of section 7(2) of the . The High Court on appeal held that when the 24th defendant died he had an undivided interest in the properties of the Kavaru of himself and defendants 405 22 and 23 and that the said undivided interest quantified as provided by the explanation to sub section (2) of section 7 of the and would devolve by intestate succession under the Succession Act. Similarly when the 23rd defendant died he had an undivided interest in the property jointly belonging to himself and the 22nd defendant. That undivided interest also get quantified under Section 7(2) of the . The High Court allowed the appeals holding that the property descended according to the rule of intestate succession contained in . Dismissing the appeal by special leave the Court, ^ HELD: 1. The three defendants were allotted jointly a share in the partition. In the suit filed by one Parameshwari defendants 22, 23 and 24 were made parties as they belonged to the Kavaru of their mother. They pleaded in the written statement for the allotment of their share in the event of partition. Moreover in the joint memo their joint share was shown as 85, 176 out of the total share of 615,264. [409E, 410C D] 2. The three defendants have enjoyed the interest as Nissanthathi Kavaru, and on partition are entitled only to life interest in the properties allotted to them under section 36(3) of the Madras Aliyasantana Act, 1949. [411 C D] 3. In view of the over riding provision in Section 4 of the , it is clear that the provisions of Aliyasantana Act, whether customary or statutory will cease to apply, in so far as they are inconsistent with the provisions of the , which came into force on 17th June 1956. Therefore, the devolution by testamentary or intestate succession is under the . [411G H] The explanation to Section 7(2) of the Act provides that the interest in the property of the Kutumba or Kavaru of a Hindu shall be deemed to be the share in the property of the Kutumba or Kavaru, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the Kutumba or Kavaru, as the case may be, then living whether he or she was entitled to claim such partition or not under the Aliyasantana law and such share shall be deemed to have been allotted to him or her absolutely. The result of the Explanation is that the undivided interest in the property of the Hindu in the Aliyasantana Kutumba or Kavaru shall devolve as provided for under the and that the share of the Hindu shall be deemed to have been allotted to him absolutely. [412G H, 413A] The Explanation to section 30 of the provides that a member of an Aliyasantana Kutumba or Kavaru can dispose of his interest in Kutumba properties by a will, while under the Aliyasantana law the individual cannot do so. Explanation to section 30(1) enables the male Hindu in a Kutumba or Kavaru which is deemed to be property capable of being disposed of by him Sections 7(2) and 30(1) would relate to undivided interest in the property of the Kutumba or Kavaru. [413B D] Section 17 of the deals with the intestate succession to the separate property of a Hindu male under the Aliyasantana law. It provides that section 8, 10, 15 and 23 shall have effect with certain modifica 406 tions in relation to persons who would have been governed by the Aliyasantana law. Section 8 provides that the property of a male Hindu dying intestate shall devolve as specified in the section. The succession to the property of a male Hindu belonging to a Kutumba or Kavaru of Aliyasantana law dying intestate would be governed by the provisions of section 8 as modified by section 17, the effect being that the succession as provided for under the Aliyasantana law would not be applicable to Hindu females under section 10 which provides for the distribution of property among heirs in class 1 of the Schedule. Section 15 provides the general rule of succession in the case of Hindu females. The rule as to the succession is also made applicable to Hindu female under the Aliyasantana law which provides for succession of the separate property of a Hindu male and a female. Section 14 of the Act enlarges the property possessed by a female Hindu (and not a Hindu male) whether acquired before or after the commencement of the by providing that she will hold the property as a full owner and not as a limited owner. The Hindu male will be entitled only to the limited rights as provided for under the law applicable to him. According to the provisions of section 36(5) of the Aliyasantana law, the property allotted to Nissanthathi Kavaru at a partition is enjoyed by it only as a life interest and at the time of the death of the last of its members shall devolve upon the Kutumba. But when a Hindu governed by the Aliyasantana law dies possessed of a life interest, after his death the property devolves under the to the heirs as provided for under the said Act and not under the Aliyasantana Act and therefore would not revert back to the Kutumba. [413H, 414A C, 418D E] 4. The effect of the Provisions of the is that after the coming into force of the an undivided interest of a Hindu would devolve as provided by section 7(2), while in the case of separate property it would devolve on his heirs as provided for in the . Even though a Nissanthathi Kavaru might have a limited interest which would in turn devolve upon a Kutumba or the nearest Santhathi Kavaru under Section 36(5) of the Aliyasantana Act, the devolution will be under the , as the mode of devolution prescribed under section 36(5) of the Aliyasantana Act, has to give way to the provisions of section 8 of the , which prescribed a different mode of succession. [414G H, 415 A] In this case, the property has been found to be undivided as between defendants 22, 23 and 24 and therefore, the position is that on the death of each one of the defendants his undivided interest would devolve on his heirs. [415B] The contention that there was a division in status on the filing of suit for partition or that as the mother was dead there were separate Kavarus is not correct. In the case of defendants 22, 23 and 24 who are male the Kavaru would mean the Kavaru of the mother of that male under section 3(b) (ii) of the Aliyasantana Act. The male by himself cannot be a Kavaru under the definition. By virtue of the Explanation to Section 35(2) a male member of a Kutumba is deemed to be a Kavaru for the purpose of Chapter VI, which deals with partition of Kutumba. In this case, the suit was filed by Parameshwari and her two children for the partition and separate possession of their share of the Kutumba property. When the suit is not filed by a male member the provisions of Chapter VI will not be applicable. The deemed provision is only applicable in considering the right to claim partition. Further 407 when the plaintiff filed the suit, there is no presumption that there was a division in status of all the Kavarus that constituted the Kutumba. The filing of the suit will no doubt result in the disruption of the joint status of the plaintiff/Kavaru, but the other Kavarus may continue to be joint in the Kutumba. Whether the other Kavarus continued to be joint in the Kavaru or not is a question of fact. [415E H, 416A] Jalaja Shedthi and Ors. vs Lakshmi Shedthi and Ors., ; , and Sundara Adappa and Ors. vs Girija and Ors. A.I.R. 1962 Mys. 72, explained and distinguished.

Consequent upon the notification under the Estates Abolition Act, the impartible Estate of Venkatagiri vested in the Government and on claims made under section 41 of the Act, the tribunal determined advance compensation to the various persons interested. On appeal against the decision of the Tribunal it was contended, that (1) the impartible character of the Estate ceased when the estate vested in the Government; (2) the compensation did not bear the character of impartibility as it became the property of the joint family ; (3) section 45 was a law altering the rights of distribution of property among the members of a joint family and wag beyond the legislative competence of the State Legislature ; (4) the law was discriminatory ; (5) the appellants were not maintenance holders but creditors; (6) the amount of "Paishkush" payable to the Government ought not to have been deducted from the compensation in calculating the amounts payable to the appellants, as the holder of the estate alone was liable to pay it. Held, that the first question was raised directly in another proceeding and it was not necessary to decide it in these proceedings which were only in respect of advance compensation. Held, further, that in respect of such compensation the proportion of distribution could only be, in accordance with the provisions of sub section 2 of section 45 of the Act by which alone the appellants were entitled to claim advance compensation. 281 (2)that the legislation was not one in respect of wills, intestacy and succession, under Entry 7, List 3, but under Entry 9 of List 2 of the Seventh Schedule of the Constitution. (3)that in so far as the legislation came within article 31 (B) of the Constitution it was not open to attack as offending article 14 of the Constitution. (4)the appellants were maintenance holders howsoever they had been described in the earlier documents and that the earlier documents did not constitute them as creditors of the holders of the estate. (5)The distributable compensation could only be arrived at afterdeducting the liabilities mentioned in the proviso to section 41 (1) due from the estate to Government from the amount of compensation for the estate and that section 54 (A) (ii) required that half of those liabilities (including Peshkash) due to the Government be deducted from half the amount of compensation which was to be distributed under section 54A (i). Held, further, that in the other appeal proportion of 1/5th fixed by section 45 had been rightly applied and that the contention that the proportion should have been that which the allowances in the earlier documents bore to the total income in the year 1889, was not tenable.

Respondent No. 1 acquired tenancy rights in five plots in the villages of Biknaur and Samahuta situated in the area known as Lower Murli Hill in District Shahabad, Bihar. In 1949 he filed a plaint in the Court of the Subordinate Judge Sasaram, against the State of Bihar and others, claiming inter alia that as a tenant he had a customary right to quarry limestone for trade purposes from the Lower Murli Hill. The claim was based mainly on certain entries in the Custom sheets prepared at the time of the Cadastral Survey in 1913 under section 102 of the Bihar Tenancy Act, 1885. The trial court rejected the claim but the High Court held the custom to be established by the evidence of the Customs sheets. The defendants appealed. Held The High Court was in error in holding that the plain tiff had established the custom pleaded by him or that it was reasonable. (i) There was nothing to show that the practices and privileges recorded in the Custom Sheets were exercised as a matter of right. The record has presumptive value. But the revenue authorities were concerned to ascertain the existing state of affairs and not to determine whether the practices and privileges were ancient, certain, reasonable and continuous. As evidence of local custom, the custom sheets had therefore not much value. On the other hand there were indications that the exercise of the privileges recorded therein was permissive. Even on the most liberal interpretation they did not provide evidence of the exercise of the privilege of commercial exploitation of limestone from the area in question. [317D; 319G] (ii) Even granting that the Custom sheets recorded a local custom that the tenants in the villages of Baknaur and Samahuta excavated stones from the hills near the villages for purposes of trade, a claim of right founded on that custom must be held unreasonable and incapable of enforcement by the sanction of a court 's verdict, [320B] A claim in the nature of a profit a prendre operating in favour of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid custom. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality. To the extent to which it is inconsistent with the general law undoubtedly the custom prevails. But to be valid a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. A right in the nature of a profit a prendre in the exercise of which the residents of a locality are entitled to excavate stone for trade purposes would ex facie 313 314 be unreasonable, because the exercise of such a right ordinarily tends to the complete destruction of the subject matter of the profit. The custom, if exercised in its amplitude as claimed, may also lead to breaches of the peace, for it would be open to all tenants to work any quarry simultaneously for trade purposes. [321B D; 324D] Lord Rivers vs Adams, L.R.3 exhibit Div. 361, Harris & Anr. vs Earl of Chesterfield and Anr. , , Alfred F. Beckett Ltd. vs Lyons , referred to Lutchhmeeput Singh vs Sadaulla Nushyo & Ors., I.L.R. 9 Cal. 698 and Arjun Kaibarta vs Manoranjan De Bhoumick, I.L.R. , approved. Henry Goodman vs The Mayor and Free Burgesses of the Borough of Saltash. 7 A.C. 633 and Mercer vs Denne, , 557 distinguished.

The respondent Municipality issued a notice under sub section (1) Of section 153A of the Bombay District Municipal Act, 1901, as adapted and applied to the State of Saurashtra and as amended by Act XI Of 1955, calling upon the appellant to show cause why it should not be directed to discharge the effluent Of it 's chemical works in the manner specified in the notice. On the appellant objecting to the notice and the requisition contained therein, a Special Officer was appointed by the Government under sub section (3) of that section to hold an enquiry in the matter. The Special Officer treated some of the issues raised,, as preliminary issues of law and held that the question whether the discharge of the effluent polluted the water and adversely affected the fertility of the soil was a matter for the subjective satisfaction of the Municipality and binding on him and was as such beyond the scope of his enquiry. The question for determination in this appeal was whether the Special Officer was right in the view he took of section 153A(3) Of the Act and in restricting the scope of the enquiry in the way he did. 389 Held, that Special Officer took a wrong view of his jurisdiction under section 153A(3) Of the Act and was in error in restricting the scope of the enquiry. There could be no doubt on a proper appreciation of the scheme laid down by the provision of section 153A of the Act, correctly construed, that while the subjective satisfaction of the Municipality as to the existence of the nuisance could not be questioned at the initial stage when it sought to put the machinery provided by sub section (1) in motion or under sub section (2) where such existence was admitted, the situation contemplated by sub section (3) where the notice and the requisition were wholly disputed, and no mere modification of the requisition sought, was entirely different. The language of sub section (3) and particularly the words " to hold an enquiry into the matter " used by it clearly indicated that where there was such a contest, it was the duty of the Special Officer to enquire into the existence of the alleged nuisance and come to a finding of his own. The status of the Special Official and powers conferred on him by the relevant provisions of the Act, clearly indicated that sub section (3) was intended by the Legislature to be a protection against any arbitrary exercise of its power by the Municipality. It was of the utmost importance that such proceedings should in the interest of the community, be disposed of with all possible expedition. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 173 of 1959. Appeal by special leave from the judgment and order dated July 16, 1958, of the Special Officer appointed under section 153(3) of the Bombay District Municipal Act, 1901 (Bombay Act No. 1 1 1 of 1901), as applied to Saurashtra, Zalawad Division, Surendarnagar.

Appeal No. 16 of 1952. Appeal from the Judgment and Order dated February 6, 1951, of the High Court of Judicature at Madras (Rajamannar C. J. and Somasundaram J.) in Civil Miscellaneous Petition No. 11307 of 1950, arising out of Order dated November 10, 1950, made in C. No. 2216 A 3 49 on the file of the Regional Transport Authority, Tanjore. G. R. Jagadisa Iyer for the appellant. V. K. T. Chari, Advocate General of Madras, (V. V. Baghavan, with him) for the respondent. December 5. The Judgment of the Court was delivered by GHULAM HASAN J. This appeal brought by special leave under article 136 (1) of the Constitution is directed against the order dated February 6, 1951, of the High Court of Judicature at Madras, dismissing the petition of the appellant under article 226, praying for the issue of a writ of certiorari to quash the order dated November 10, 1950, passed by the respondent in the following circumstances : The appellant is the lessee of a site in the town of Tanjore in the State of Madras upon which he has a bus stand. The bus stand originally belonged to the Tanjore Municipality and the appellant merely held a licence from that authority. Later on, the title of the Municipality to the site was questioned by a third party and in a civil litigation which ensued the title of the Municipality was negatived. Thereupon the appellant obtained the lease hold right of the site from the true owner and constructed a bus stand conforming to the design approved by the Municipality. Besides sheds for passengers and vehicles it provided other amenities. It was situate near the Railway Station and most of the buses leaving Tanjore for 38 292 out station journeys used this bus stand both as the starting point and as the terminus. It appears that the site was approved as convenient and suitable for the bus stand both by the Municipality and the District authorities for buses plying from and into Tanjore. The appellant held the licence for running the bus stand year after year. In 1939 the Municipality granted him a licence for four months only instead of one year as required by section 270 (c) of the Madras Municipalities Act (V of 1920), and the appellant succeeded in vindicating his right for a whole year 's licence in the Civil Court by obtaining the relief for injunction and an order directing the issue of a licence against the Municipality for 1940 41. The appellant carried on the business without let or hindrance until 1950 when the Municipality refused to renew his licence, whereupon he obtained a mandatory injunction from 'the Civil Court directing the Municipality to grant him a licence for the year 1950 51. This decree was passed on October 7, 1950. On February 21, 1950, however, the Regional Transport Authority, Tanjore, which is the respondent in the present appeal, declared the bus stand as unsuitable with effect from April 1, 1950, and altered the starting and the terminal points from that date. This order resulted in the closing of the appellant 's bus stand. This decision which was given by means of a resolution was confirmed subsequently by another resolution passed on March 31, 1950. The appellant challenged the validity of these resolutions by a petition under article 226 before the Madras High Court on the ground that they were passed without jurisdiction and were contrary to the principles of natural justice as they were passed without notice to the appellant and without giving him an opportunity to defend his right. The resolutions purported to have been passed under section 76 of the , which runs thus: " The Provincial Government or any authority authorized in this behalf by the Provincial GovernMent ' may, in consultation with the local authority 293 having jurisdiction in the area concerned,determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers." The Division Bench of the Madras High Court consisting of the learned Chief Justice and another learned Judge quashed the two orders as prayed for by the appellant on the grounds that the orders were passed ex parte, and that section 76 did not authorize, the respondent to close the bus stand. In the opinion of the Bench, section 76 deals with provision for parking places and halting stations and has no applica tion to a permanent bus stand which is a sort of a radiating centre of all the bus traffic for the town. It was held therefore that the Regional Transport Authority could not under section 76 fix starting and terminus places for motor buses. Reference was made, in the course of the arguments, to rule 268, Madras Vehicles Rules, 1940, and the learned Judges observed that though the rule does empower the Transport Authority to fix starting places and termini between which public service vehicles other than motor cars shall be permitted to be used, but that this could be done only if starting places and termini had not already been fixed in accordance with the provisions of any statute. In the present case as these had already been fixed in accordance with rule 27 D, Motor Vehicles Rules, 1923, the Transport Authority could not fix new starting places and termini under rule 268 of the Rules passed in 1940. The Bench pointed out that the rule was defective and would lead to an impasse if the starting places and termini already fixed become unsuitable and have to be shifted. Accordingly they suggested that the rule should be amended and a provision introduced conferring on the appropriate 294 authority the requisite power to alter from time to time the starting places and termini. See T. E. Ebrahim Saheb vs The Regional Transport Authority Tanjore(1). It appears that within two months of the decision of the High Court rule 268 was amended by the Government. Before the decision of the High Court was given the bus stand was shifted to a place belonging to the Municipality in another area. Rule 268 as it originally stood ran thus: " In the case of public service vehicles (other than motor cabs) if starting places and termini have not been fixed in accordance with the provisions of any statute, the transport authority may, after consultation with such other authority as it may deem desirable, fix starting places and termini between which such vehicles shall be permitted to be used within its jurisdiction. A list of such places shall be supplied by such authority to every holder of a permit for such vehicles. When such places have been fixed, every such vehicle shall start only from such places. " By the amendment the words " if starting places and termini have not been fixed in accordance with the provisions of any statute " were deleted, and the words " and after notice to the parties affected, fix or alter from time to time for good and proper reasons," were added. As amended, the rule runs thus: " 268. In the cage of public service vehicles (other than motor cabs) the transport authority may after consultation with such other authority as it may consider desirable, and after notice to the parties affected, fix or alter from time to time for good and proper reasons, the starting places and termini between which such vehicles shall be permitted to be used within its jurisdiction. A list of such places shall be supplied by such authority to every holder of a permit for such vehicles at the time of grant of or renewal of permits. (1) A.I.R. 951 Mad. 419. 295 When such places have been fixed every such: vehicle shall start only from such places. " The respondent then issued a notice to the appellant on October 25, 1950, to show cause why the bus stand should not be shifted, the grounds given being that it was not satisfactorily maintained and was situated in a limited space which was inadequate to accommodate all the buses using the stand and that it did not permit of any improvements being carried out. The appellant filed a long written statement objecting to the notice and challenging the grounds, whereupon the respondent issued a fresh notice on November 2, 1950, in which the original grounds were dropped and were substituted by the ground "from ' the point of convenience of the travelling public". After hearing the appellant and the Municipality, the Board passed a resolution on November to, 1950, that for good and proper reasons, namely, the convenience of the travelling public, the Transport Authority had resolved to alter the starting places and termini of all public service vehicles (other than motor cabs) arriving, at and proceeding from Tanjore from the existing bus stand owned by the appellant to the Municipal bus stand in another area of the town. This order led to another petition being filed in the High Court at Madras, praying for a writ of certiorari under article 226. The appellant questioned the jurisdiction of the Transport Authority to pass the order in question. It was contended before the High Court that rule 268 as amended was itself ultra vires, firstly, because it was beyond the rulemaking power conferred by section 68, sub section (r), of the , and secondly because it was repugnant to article 19(1)(g) of the Constitution. Both these contentions were rejected by the High Court and the petition was dismissed. The contentions raised before the High Court have been repeated before us. We are satisfied that there is no good ground for differing from the view taken by the High Court. The contains 10 Chapters. Chapter IV of the Act deals with 296 control of transport vehicles. Section 4 7 (1) lays down that the Regional Transport Authority shall, in deciding whether to grant or refuse a stage carriage permit, have regard to the following matters, namely, (a) the interest of the public generally; (b) to (f). . . . . . . . Section 48 says that the Regional Transport Authority after consideration of the matters set forth in section 47, may attach to a stage carriage permit any prescribed condition or any one or more of the following conditions. Various conditions are set out one of which (v) is material for our purposes. It is to the effect " that within Municipal limits and in such other areas and places as may be prescribed, passengers shall not be taken up or set down at or except at specified points. " The material portion of section 68 may be set out here: "(1) A Provincial Government may make rules for the purpose of carrying into effect the provisions of this Chapter. (2) Without prejudice 'to the generality of the foregoing power, rules under this section may be made with respect to all or any of the following matters, namely: (r) prohibiting the picking up or setting down of passengers by stage or contract carriages at specified places or in specified areas or at places other than duly notified stands or halting places. . . ; " It is obvious from a plain reading of sub section (1) that the Government has got full power to make rules for the purpose of carrying into effect the. provisions contained in Chapter IV relating to the control of transport vehicles and according to subsection (2), without prejudice to this power, the Government has the power to frame rules with respect to matters set out in sub sections (2) (a). to (2) (za). It is significant to note that the Act does not follow the ordinary mode of providing at the end of the Act that the Government is empowered to make rules for the 297 purpose of carrying into effect the provisions of the Act but at the end of each of the Chapters, including Chapter IV, the power has been reserved to the Provincial Government to make rules for the purpose of carrying into effect the provisions of the Chapter. The purpose of Chapter IV is described by the compendious expression "control of transport vehicles" and the Provincial Government is invested with plenary powers to make rules for carrying out that purpose. Keeping in view the purpose underlying the Chapter we are not prepared to hold that the fixing or alteration of bus stands is foreign to, that purpose. It was contended that section 68, sub section 2(r), does not confer the power upon the transport authority to direct the fixing or the alteration of a bus stand and that rule 268 of the rules framed under that section was, therefore, ultra vires. We are not prepared to accede to this contention. Sub section 2(r) clearly contemplates three definite situations. It prohibits the picking up or setting down of passengers (i) at specified places (ii) in specified areas, and (iii) at places other than duly notified stands or halting places. If the power to make rules in regard to these, matters is given to the Government, then it follows that a specified place may be prohibited from being used for picking up or setting down passengers. This will inevitably result in the closing of that specified place for the purpose of picking up or setting down of passengers. Similarly a specified area may be excluded for the same purpose. The expression "duly notified stands" is not defined in the Act, but it is reasonable to presume that a duly notified stand must be one which is notified by the Transport Authority and by none other. There is no warrant for the presumption that it must be notified by the Municipality. ' Reference was Made to section 270(b), 270(c) 298 270(e), 1, 2 & 3 of the Madras District Municipalities Act (V of 1920), and it was argued that the authority which is clothed with a power to fix a stand is the Municipality. Section 270(b) empowers the Municipal Council to construct or provide halting places and cart stands, and the latter according to the Explanation appended to the section includes a stand for motor vehicles as well. Section 270(c) merely says that where a Municipal Council has provided a public landing place, halting place or cartstand, the executive authority may prohibit the use for the same purpose by any person within such distance thereof, as maybe determined by the Municipal Council, of any public place or the sides of any public street. Section 270(e) lays down that no person can open a new private cart stand or continue to keep open a private stand unless he obtains from the Council a licence to do so. These provisions do not affect the power of the Transport Authority to regulate traffic control or impose restrictions upon the licence of any such cart stand. If rule 268 is therefore within the power of the rule making authority, it follows that it cannot be challenged as being void because it is not consistent with some general law. Reliance was placed on a passage at page 299 of, Craies on Statute Law as laying down that a by law must not be_repugnant to the statute or the general law. But by laws and rules made under a rule making power conferred by a statute do not stand on the same footing, as such rules are part and parcel of the statute itself. Section 68, subjection 2(r), involves both s general prohibition. that the stand will cease to exist as well as a particular prohibition, namely that passengers shall not be picked up or set down at a specified point. The order passed by the Transport Authority properly construed falls within the ambit of section 68, sub section 2(r). Rule 268 under which the order impeached was passed is rule framed under the plenary rule making 299 power referred to in section 68, sub section (1). Sub section (2) (za) says that a rule may be made with respect to any other matter which is to be or may be prescribed. This shows the existence of residuary power vested in the rule making authority. It follows therefore that rule 268 is within the scope of the powers conferred under section 68 of the Act. The next contention was that the order is repugnant to article 19 (1) (g) of the Constitution, according to which all citizens must have the right to practise any profession or to carry on any occupation, trade or business. It cannot be denied that the appellant has not been prohibited from carrying on the business of running a bus stand. What has been prohibited is that the bus stand existing on the parti cular site being unsuitable from the point of view of public convenience, it cannot be used for picking up or setting down passengers from that stand for outstations journeys. But there is certainly no prohibition for the bus stand being used otherwise for carrying passengers from the stand into the town, and vice versa. The restriction placed upon the use of the bus stand for the purpose of picking up or setting down passengers to outward journeys cannot be con sidered to be an unreasonable restriction. It may be that the appellant by reason of the shifting of the bus stand has been deprived of the income he used to enjoy when the bus stand was used for outward journeys from Tanjore, but that can be no ground for the contention that there has been an infringement of any fundamental right within the meaning of article 19 (1) (g) of the Constitution. There is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interest of public convenience. The restriction may have the effect of eliminating the use to which the stand has been put hitherto but the restriction cannot be regarded as being unreasonable if the authority imposing such restriction had the power to do so. Whether the abolition of the stand 39 300 was conducive to public convenience or not is a matter entirely for the transport authority to judge, and it is not open to the court to substitute its own opinion for the opinion of the authority, which is in the beat position, having regard to its knowledge of local conditions to appraise the situation. It was next contended that rule 268, if it is held to be intra vires, was not complied with as the Transport Authority could pass such an order only after consultation with such other authority as it may deem desirable. It is admitted that the Transport Authority;consulted the Municipality before passing the order in question. Rule 268 therefore was fully complied with. But then it is urged that the Municipality was not the proper authority in the circumstances as it was a partisan to the dispute and had been endeavouring to oust the appellant from the bus stand in order to set up its own bus stand. The Municipality is a public body interested in public welfare and if it sought the assistance of the Government or the Transport Authority to shift the busstand, it was actuated only by the demands of public interest. It was possible for the Transport Authority to consult the District Board or the Panchayat as suggested for the appellant, but it was not bound to do so. We do not think that in consulting the Municipality the Transport Authority acted otherwise than within the scope of its powers. Further, according to the language employed the consultation is not obligatory but only discretionary. It was suggested that the act of the Municipality was mala fide and reference was made to paragraphs 18 and 19 of the appellant 's affidavit dated November 20, 1950. They refer merely to the vagueness of the ground of public convenience and to he amendment of the rule not being bona fide. There is, however, no material to support this suggestion. The mere fact that in the first notice certain grounds were mentioned which were not adhered to in the second notice and convenience of the travelling public was alone mentioned as the ground cannot lead to the 301 inference that the order was mala fide. The rule was amended in pursuance of the suggestion of the High Court in order to overcome the difficulty which arose in the absence of requisite power to alter the busstands. It is significant that no allegation about mala fides was made before the High Court and the question was never discussed there. In the petition for special leave to appeal though there is reference to the ground of inconvenience being vague, yet there is no suggestion of mala fides. The question about mala fides appears to have been raised for the first time in paragraph 4 (f) and (g) of the statement of the case. We hold that the plea of mala fides has not It was also urged that the resolution is invalid as the District Collector who presided over the meeting of the Transport Authority which passed this resolution had opened the new Municipal bus stand on April I, 1950. The suggestion is that be did not bring to bear upon the question an impartial and unbiased mind. The District Collector was not acting in the exercise of judicial or quasi judicial functions so that his action can be subjected to the scrutiny which is permissible in the case of a judicial officer. He, was acting purely in his executive capacity and his conduct in presiding over the meeting of the Transport Authority in the exercise of his normal functions and also opening the Municipal stand which he was entitled to do as the head of the District, does not affect the validity or fairness of the order complained against. We do not think there is any merit in this contention. Accordingly we dismiss the appeal with costs. Appeal dismissed.

Rule 268 of the Madras Motor Vehicles Rules, 1940, as it originally stood did not empower the Transport Authority to alter from time to time the starting places and termini for motor vehicles. The rule was amended in 1950 so as to empower the Transport Authority to do so, and after giving notice to the appellant who was the owner of a bus stand in a municipality, which was being used for several years as the starting place and terminus for motor buses plying to and from the municipality, the Transport Authority passed a resolution changing the starting place and terminus for the convenience of the public. The appellant applied for a writ of certiorari contending that r. 268 as amended was ultra vires as it went beyond the rule making powers conferred by section 68 (2) (r) of the and was also repugnant to article 19 (1) (g) of the Constitution: Held, (i) that the fixing and alteration of bus stands was not a purpose foreign to the " control of transport vehicles ", the purpose for which rules could be made under section 68 (1), and the power to make rules prohibiting the picking up or setting down of passengers at specified places mentioned in section 68 (2) (r) necessarily included the power to alter the situation of bus stands, and r. 268 as amended did not therefore go beyond section 68 (2) (r) ; (ii) the restriction placed upon the use of the bus stand for the purpose of picking up or getting down passengers to or from outward journeys cannot be considered to be an unreasonable restriction on the right to carry on any profession, trade or business of the appellant, and r. 268 was not in any way repugnant to article 19 (1) (g) of the Constitution. The expression " duly notified stand " in the Madras means a stand duly notified by the Transport Authority. There is no warrant for the view that it means a stand 291 notified by the municipality. The provisions of section 270 (b), (c) and (e) do not affect the power of the Transport Authority to regulate traffic control or impose restrictions upon the licence of cart stands.

The assessee was running a business of plying buses and during its previous year ending on August 16, 1959, the buses had been plied for part of the year but were sold thereafter. The Income tax Officer assessed the difference between the sale price of the buses and their written down value to tax as profit under the second proviso to section 10(2) (vii). In appeal, the Appellate Assistant Commissioner rejected the assessee 's contention that the business had been transferred as a whole and therefore the profit in question could not be taxed. The Tribunal also dismissed an appeal taking the view that the buses had been plied by the assessee for part of the previous yea.r and the profit on the sale of these buses was taxable under the said provision. However, the High Court, upon a reference, held that the amount in question was not assessable as profit under section 10(2)(vii) on the assumption that the whole of the bus service business had been wound up during the relevant period. On appeal to this Court. HELD: allowing the appeal: Even on the assumption that the sale of the buses was a closing down or a realization sale it would nonetheless be taxable since the sale was made after the amendment of the second proviso. section 10(2)(vii) by Act 67 of 1949. [533 F G] According to the law laid down by this Court the view of the High Court would have been sustainable if the sale in the present case had been effected during the assessment year prior to the amendment of the proviso by Act 67 of 1949. The critical words which were inserted by that proviso namely, "whether during the continuance of the business or after the cessation thereof", must be given their proper meaning. It is quite plain that if the building, machinery or plant is sold during the continuance of the business or after the business ceases, the sale proceeds would be liable to tax in accordance with the proviso. When the legislature clearly provided that the proviso would apply even if the sale was made, after the cessation of the business, it is difficult to conceive that it was intended to exclude from the ambit of the proviso a sale made for the purpose of closing down the business or effecting its cessation. [535 F H] Commissioner of Income tax, Madras Iv. Express Newspapers Ltd., Madras, , 195; Commissioner of Income tax, Kerala vs West Coast Chemicals and Industries Ltd. ; Commissioner of Income tax, Kerala vs R.R. Ramakrishna Pillai, and The Liquidators of Pursa Limited vs Commissioner of Income tax, Bihar; , ; distinguished. Commissioner of Income tax vs Ajax Products Ltd., ; ; referred LI 3Sup. CI/68 3 532

The stage carriage permits of the petitioners, who were also the petitioners in Writ Petition NO. 75 of 1959, previously, reported, were expiring on 31st March, 1958, and were renewed up to March 31, 959. A fresh scheme of nationalisation having 131 been approved and published under section 68C of the Motor Vehicles Act, the Regional Transport Authority, in order to avoid inconvenience to the public, granted temporary permits to the petitioners till the State Transport Department obtained their permits. The Department applied for permits under section 68F(1) of the Act in accordance with the scheme admittedly less than six weeks before the date when they were to take effect, contrary to the provision of section 57(2) of the Act. The petitioners had also applied for renewal of their permits. The Regional Transport Authority issued permits to the Department and rejected the renewal applications of the petitioners. The petitioners moved the High Court under article 226 of the Constitution for quashing ,that order. The High Court held that the issue of permits to the Department was invalid as the provision of section 57(2) had not been complied with, and the refusal of renewal of the petitioners ' permits was incorrect, but it dismissed the Writ Petition on the ground that the relief that could be granted to the petitioners could only be short lived. The petitioners applied for a certificate to enable them to appeal to this Court and while that application lay pending, applied to this Court under article 32 of the Constitution. It was contended on their behalf that before the renewal application could be rejected and permits granted to the Department under section 68F(1) of the Act, the Department must apply for permits in respect of all the routes covered by the scheme so that there could be no possibility of any discrimination between an operator and an operator in infringement of article 14 of the Constitution as also their rights to carry on their business under article 19(1)(g) of the Constitution. It was further contended that non compliance with the provision of section 57(2) of the Act disentitled the Department to any permits at all. It was contended on behalf of the Department that it was open to it to implement the scheme by stage and it was denied that there could be any discrimination in doing so or that section 57(2) applied to an application under section 68F(1) of the Act. Held (per Sinha, C.J., Imam, Wanchoo and Das Gupta, JJ.), that it was clear from the language of s 68F of the , that an application by a State Transport Undertaking for a permit thereunder must be made in the manner prescribed by Ch. IV of the Act and, therefore, there could be no doubt that such an application must fall within the purview of section 57(2) of the Act. Consequently, the orders granting the application for permits made by the State Transport Department in the instant case, admittedly in breach of section 57(2) of the Act, were on that ground alone liable to be quashed. Section 68C of the Act contemplates that where there is no intention to operate an entire route but a portion of it, that portion alone should be specified as the route and not the whole of it or any portion thereof as in the instant case. The scheme, however, clearly intended that all the routes in their entirety 132 were to be taken over and so the qualifying words were mere surplusage. Per Kapur, J. On a proper construction of sections 68C and 68F of the Act, it would not be correct to say that the Legislature intended that the scheme as approved must be implemented all at once or not at all. It would be impractical to suggest that the whole scheme should be implemented in a rigid manner. Some flexibility in implementing it must necessarily be implied for otherwise nationalisation of transport services, the accepted State policy in India, was likely to be indefinitely held up, if not thwarted. The language used by section 68F lends no support to such a contention nor do the words " in pursuance of " occurring, therein mean that the whole of the scheme has to be put into operation and not a portion of it. Bradford Corporation vs Myers, , referred to, If the State cannot take over routes for which application can be immediately made, the taking over must become not only difficult but extremely expensive as other interests may supervene in the meantime. Where, therefore, it intends to run a scheme within a reasonable time, there can be no reason why it should not apply for different routes within a reasonable time so long as it acts honestly, fairly and without any oblique motives. Since the State Undertaking in the present case had imple mented a part of the scheme and made fresh applications for permits in the manner provided by section 57(2) and their relevant provisions of Act, it is not necessary to pass a formal order quashing the permits granted in its favour. K. N. Guruswamy vs The, State of Mysore, [1955] 1 section C.R. 305 referred to.

The appellant is one of the State Transport Undertak ings. On June 30, 1976 an approved scheme was published under s.68 D of the in respect of the route Madurai to Kumuli authorising the appellant to run its stage carriages and proposing to exclude completely all other persons from operating their stage carriage services under permits covering the entire route except those persons mentioned in Annexure 11 to the scheme, who were existing operators on the different sectors of the notified route on the date of the publication of the scheme. The respondent 's name was not mentioned in Annexure I1 as he was operating on a non scheme route. On February 28, 1981 the respondent secured the variation of his permit from the Regional Transport Authority enabling him to operate on a sector of the notified routes. The appeal against the said order was dismissed and no revision petition was filed against that order. On December 23, 1982 the respondent obtained from the Regional Transport Authority a second variation of his permit which authorised him to operate his stage carriage service on the route which was also a part of the notified route. An appeal filed against that order was dismissed by the State Transport Appellate Tribunal. The High Court dismissed the revision petition taking the view that s.68 F(I D) of the Act could not be considered as a bar for entertaining an application for the variation of a permit since such an application was neither an appli cation for a permit nor for its renewal. In the appeal to this Court on behalf of the appellant it was 392 contended that a draft scheme published under s.68 C of the Act on June 4, 1976, which was still in force was a bar to the grant of variation of the permit authorising the re spondent to operate his stage carriage on a sector of the route in respect of which the scheme had been published. On behalf of the respondent it was contended that on a true construction of the scheme only persons who were oper ating their stage carriages under permits issued in respect of the entire route from Madurai to Kumuli alone have been excluded under the approved scheme and not those who were operating between any two $aces on the notified route or between any place lying outside the notified route and a place on the notified route even though they might be oper ating on a portion of the notified route. Allowing the appeal, HELD: 1. In the context in which s.68 F(I D) of the appears it is difficult to hold that the application for variation of a permit by including the whole or any part of route in respect of which a scheme is published under s.68 C of the Act can be treated as failing outside the mischief of s.68 F(I D) of the Act. There is no justification to limit the application of s.68 F(I D) to only applications for fresh permits or their renewal and to leave out their application for variation of a permit by the exclusion of the route or a portion of the route in respect of which a scheme is published. The fact that the applicant is the holder of a permit to operate a stage carriage on another route whose variation he is seek ing by the inclusion of a route or a part whereof in respect of which a scheme is published under s.68 C ought not to make any difference. The principle underlying s.68 F(I D) is that the number of services on such a route should be frozen on the publication of a scheme under s.68 C. [395E H] 2. The approved scheme excludes the operation by others of stage carriage service on the said route except those whose names are mentioned in Annexure II attached thereto. The respondent is not protected by any provision under the approved scheme itself. He cannot be permitted to operate on any sector of the notified route in question in view of the provisions contained in s.68 C, 68 D and 68 FF. [396B C] Karnataka State Road Transport Corporation, Bangalore vs B.A. Jayaram and Others, [1984] 2 S.C.R. 768 & Adarsh Travels Bus Service and Another vs State of U.P. and Others, ; , referred to. 393

The petitioner was the owner of a bus being run as a stage carriage. On 24.7.78 while carrying passengers this bus met with an accident, as a result of which one passenger died. The Motor Accident Claims Tribunal held that the accident took place due to the negligence on the part of the driver and awarded compensation of Rs.56,800 to the legal representatives of the deceased. It further held that the liability of the insurer to indemnify the petitioner was limited to Rs.5,000 as the policy specifically limited the insurer 's liability to what had been provided by section 95(2)(b)(ii)(2) and (4) of . The appeal filed by the Petitioner was dismissed by the High Court. In the Special Leave Petition before this Court, it was contended on behalf of the petitioner that the insurer was liable to indemnify the petitioner upto a limit of Rs.75,000 under section 95(2)(b)(ii)(2) of the and that the further limit mentioned in section 95(2)(b) (ii)(4) was inapplicable to the case of the petitioner. Dismissing the Special Leave Petition, this Court, HELD: 1. Having regard to the as it stood prior to the amendments by Act 47 of 1982. the insurer was liable to pay upto Rs.10,000 for each individual passenger where the vehicle involved was a motor cab and upto Rs.5,000 for each individual passenger in any other case. [1161F] 2.1 Section 95(2)(b) as it existed before its amendment in 1982 1150 dealt with the limits of the liability of an insurer in the case of motor vehicles in which passengers were carried for hire or reward or by reason of or in pursuance of a contract of employment. [1155H; 1156A] Sub clause (i) of section 95(2)(b) provided that in respect of death of or injury to persons other than passen gers carried for hire or reward, a limit of Rs.50,000 in all was the limit of the liability of the insurer. [1156A] Under sub clause (ii) there were two specific limits on the liability of the insurer in the case of motor vehicles carrying passengers. The first limit related to the aggre gate liability of the insurer in any one accident. It was fixed at Rs.50,000 in all where the vehicle was registered to carry not more than thirty passengers, at Rs.75,000 in all where the vehicle was registered to carry more than thirty but not more than sixty passengers and at Rs.1,00,000 in all where the vehicle was registered to carry more than sixty passengers. The other limit was in respect of each passenger, which provided that subject to the limits afore said as regards the aggregate liability, the liability extended up to Rs.10,000 for each individual passenger where the vehicle was a motor cab and Rs.5,000 for each individual passenger in any other case. Neither of the two limits can be ignored. [1156B D] 2.2 The limit prescribed in section 95(2)(b)(ii)(4) cannot be said to be only the minimum liability prescribed by law. The amount mentioned in that provision provides the maximum amount payable by an insurer in respect of each passenger who has suffered on account of an accident. This is a fair construction of section 95(2) of the Act as it existed at the time when the accident took place. [1156E] 2.3 After the 1982 amendment the liability of the insur er in respect of each individual passenger is Rs.15,000 as against Rs.10,000 in the case of each individual passenger where the vehicle was a motor cab and Rs.5,000 for each individual passenger in other cases, prior to the said amendment. This shows that Parliament never intended that the aggregate liability of the insurer mentioned in sub clauses (1), (2) and (3) of section 95(2)(b)(ii) would be the liability of the insurer even when one passenger had died or suffered injury on account of an accident. Such liability was always further limited by sub clause (4) of section 95(2)(b)(ii). [1159F G] 2.4 In the instant case, the vehicle in question being a bus carrying passengers for hire or reward registered to carry more than thirty 1151 but not more than sixty passengers, the limit of the aggre gate liability of the insurer in any one accident was Rs.75,000 and subject to the said limit the liability in respect of each passenger was Rs.5,000. [1156D] 2.5 As the law stands today the insurer is liable to pay upto Rs.15,000 in respect of death of any passenger or any injury caused to him. Having regard to the large number of motor vehicle accidents which are taking place on roads and also to the fact that a large number of public service vehicles carrying passengers are involved in them, limit of Rs.15,000 fixed in the case of each passenger appears to be still meagre. [1159E; 1160E] 3. The following suggestions in respect of certain provisions of the are made for considera tion of the Central Government: (i) The limits of compensation in respect of death or permanent disablement payable in the event of there being no proof of fault have become unrealistic in view of inflation ary pressures and consequent loss of purchasing power of the rupee. These limits should, therefore, be raised adequately. [1162B C] (ii) There is no justification for continuing the dis tinction between public service vehicles and other vehicles and also between passengers and third parties with regard to the liability of the insurer to pay compensation. Even among the public service vehicles a distinction is made between vehicles used as goods carriages and those used for carrying passengers. It may be considered whether it is necessary to continue these distinctions and also whether the limits of liability of the insurer should not be altered suitably. [1162D E] (iii) The society and the State which are responsible for a large number of motor vehicles being put on road should carry also the responsibility of protecting the interests of innocent victims of hit and run motor accidents which are increasing in number. The amounts of Rs.5,000 and Rs.1,000 provided as compensation in respect of death or grievous hurt respectively appear to be highly inadequate. It may be considered whether these figures should not be increased in an appropriate manner. [1162F G] (iv) The expression "legal representative" has not been defined in the Act and it has led to serious doubts in the course of judicial proceedings. It may be considered whether it would not be advisable to define the said expression for purposes of making claims before Claims 1152 Tribunals where death has resulted from a motor vehicle accident in the same way in which the English Law has been amended. [1163A C] Motor Owners Insurance Co. Ltd. vs Jadavji Keshavji Modi Northern India Transport Insurance Co., [1971] Supp. SCR 20; Manjusri Raha & Ors. B.L. Gupta & Ors. ; , ; P.B. Kader & Ors. vs Thatchamma and Ors., AIR 1970 Kerala 241; K.R. Sivagami, Proprietor, Rajendran Tourist vs Mahaboob Nisa Bi and others, ; Madras Motor and General Insurance Co. Ltd. by its successor: The United Fire and General Insurance Co. Ltd. and others vs V.P. Ba lakrishnan and others, ; New India Assurance Co. Ltd. vs Mahmood Ahmad and others, ; Shiva hari Rama Tiloli and another vs Kashi Vishnu Agarwadekar and others, ; National Insurance Co. Ltd. vs Shanim Ahmad and others, ; Tara Pada Roy vs Dwijendra Nath Sen and others, ; Noor Mohammad and another vs Phoola Rani and others, ; Raghib Nasim and another vs Naseem Ahmad and others, and Gujarat State Road Transport Corporation, Ahme dabad vs Ramanbhai Prabhatbhai and Another, ; , referred to.

The appellant company in Civil Appeal No.642 of 1974 was doing the business as ship chandler. It imported the goods from foreign countries and after receipt of the goods, kept them in a bonded warehouse under the relevant provisions of the . The ware house was under dual control of the Customs Department and the importers like the appellant so that it could not be opened by one without the presence of the other. On receipt of order from the Captain of the Ship requiring ship stores, the appellant supplied the goods on board after observing certain formalities imposed by the , the rules and regulations made thereunder. For the Assessment year 1964 65 a question arose whether Rs.3,51,438.08 which was the taxable turnover, determined by the assessing authority, was subject to the tax under the Tamil Nadu General Sales Tax Act, 1959. The appellant objected to the assessment on such turnover on the ground that the goods relating to such turnover were imported from abroad, stored in the customs ware house and were not brought to the country across the customs frontiers. The Sales Tax Officer assessed the turnover and the Appellate Assistant Commissioner confirmed the assessment on the basis that sales were effected 237 within the State of Tamil Nadu. However, the Tribunal, in appeal by the appellant, held that the sales did not take place within the State of Tamil Nadu since the import of goods in question had not become complete and as the goods were sold to the foreign going vessels, the sales in question could not be deemed to be within the State of Madras. On revision, the High Court relying on the decision of the Supreme Court in the State of Madras vs Davar and Co., 24 STC 481, held that the sales took place in the State of Madras and assessment to tax was valid. The facts in all the other connected appeals, writ petitions and the special leave petitions being identical, a similar question of law also arose in them. In appeal to the Supreme Court by the appellant/petitioners, it was contended on their behalf: (i) that the property in the goods, did not pass in the territory of Tamil Nadu and the sales were therefore, in the course of export because goods were to be on board the ship and were exported outside the country and could not be consumed before they reached the high seas; (ii) that the sale of goods took place in the territorial water of India and not within the State of Tamil Nadu; (iii) that the legislative competence of the State of Tamil Nadu as regards levying of the sales tax was confined to the territories of the State as specified in item No. 7 of the First Schedule to the Constitution. That legislative competence did not extend to any territorial waters simply because these were abutting the land mass of the State of Tamil Nadu; (iv) that the Sovereignty over the limits of territorial waters extended and always extended to the entire territorial waters of India. The limits and extent of the said territorial waters had not been altered by any notification of the Central Government. The territorial waters extended to a distance of 12 nautical miles from the sea shore adjacent to the land mass of the State; and (v) that there was no definition at all of "Customs Frontiers" in the . The definition inserted in the Act in section 2(ab) by the Amending Act 103 of 1976 must be read as declaratory or explanatory and no questions of prospective operations would arise. On the other hand, it was argued on behalf of the respondent State that the appellant 's godowns and bonded ware houses were within the State of Tamil Nadu. When orders were received, the appellants/petitioners supplied the required quantity from the stock either in the godown or in the bonded ware houses and delivered these or set these apart in fulfilment of the orders placed by the concerned officer of the foreign bond ship and that at that time only appropriation was made towards the contract of sale and such appropriation took place within the State of Tamil Nadu. It was, therefore, on such ap 238 propriation that the sale took place; and (ii) that it was not correct to say that the transactions of sale were completed only when the masters of the vessels acknowledged delivery of the goods on board the vessels. Dismissing the Appeals and the Petitions, ^ Held: 1.1 The concept of export in Article 286(1)(b) of the Constitution postulates the existence of two termini as those between which the goods were intended to move or between which they were intended to be transported and not a mere movement of goods out of the country without any intention of their being landed in specie in some foreign port. Goods might be consumed within the meaning of the Explanation to Article 286(1) (a) either by destruction or by way of use depending on the nature of the goods. Therefore, the sales were not sales "in the course of export" within the meaning of Article 286(1) (b) and were not exempt under that Article but they fell within the Explanation to Article 286(1) (a). [247C D; G] 1.2 Mere movement of goods out of the country following a sale would not render the sale, one in the course of export within Article 286(1) (b) of the Constitution of India. Before a sale can be said to be a sale in the course of export, the existence of two termini between which the goods are intended to move or to be transported is necessary. [249F G] In the instant case the appropriation of goods took place in the State of Tamil Nadu when the goods were segregated in the bonded ware house to be delivered to the foreign going vessels. Therefore, under sub section (2), sub cl. (a) and (b) of section 4 of the , the sale of goods in question shall be deemed to have taken place inside the State because the contract of sale of ascertained goods was made within the territory of Tamil Nadu and furthermore in case of unascertained goods approrpriation had taken palce in that State in terms of cl. (b) of sub section (2) of section 4 of the . There is no question of sale taking place in course of export or import under section 5. From that point of view, the amendment introduced by Act 103 of 1976 by incorporating in cl. (ab) of section 2 of the does not affect the position. It was not a case of export as there was no destination for the goods to a foreign country. The sale was for the purpose of consumption on board the ship. It was not as if only on delivery on board, the vessel that the sale took place. The mere fact that shipping bill was prepared for sending it for custom formalities which were designed to effectively control smuggling activities could not 239 determine the nature of the transaction for the purpose of sales tax nor does the circumstances that delivery was to the captain on board the ship within the territorial waters make it a sale outside the State of Tamil Nadu.[252E H; 247A B] Burmah Shell Oil Storage and Distributing Co. of India Ltd., and Anr. vs Commercial Tax Officer & Ors., 11 STC 764; Deputy Commissioner of Commercial Taxes vs Caltex India Ltd., Madras, 13 STC 163; The State of Madras vs Davar & Co., 24 STC 481; Fairmacs Trading Co. vs The State of Tamil Nadu, 41 STC 157; Tata Iron and Steel Co. Ltd. Bombay vs S.R. Sarkar & Ors., 11 STC 655; and The State of Kerala & Ors. vs The Cochin Coal Co., Ltd., 12 STC 1 relied upon. Fairmacs Trading Co. vs The State of Tamil Nadu, 41 STC 157 and Fairmacs Trading Co. vs The State of Andhra Pradesh, 36 STC 260 approved. Customs barrier does not set a terminal limit to the territory of the State for sales tax purposes. Sale, therefore, beyond the customs barrier is still a sale within the State. The amendment introduced in s.2 by the Act 103 of 1976 does not affect the position because the custom station is within the State of Tamil Nadu. [253A B] 4. In the facts and circumstances of the case, it is not necessary to express any opinion on the arguments whether introduction of cl.(ab) of s.2 of the by Act 103 of 1976 is prospective or not. [253C D] Deputy Commissioner of Commercial Taxes vs Caltx India Ltd., Madras, 13 STC 163; Tata Iron and Steel Co. Ltd. Bombay vs S.R. Sarkar & Ors., 11 STC 655; Furby vs Hoey [1947] 1 All England Report 236; The Central Bank of India vs Their Workmen ; ; and Chanan Singh & Anr. vs Jai Kaur; , at 804 807 referred to. Kent Justices Ex Parte LYE & Ors., [1967] 1 All England Report 560 at 564 65 held inapplicable.

In the 1967 election to the State Legislative Assembly, the appellant and the 1st respondent claiming to be Adi Dravidas, stood as candidates for a seat reserved for Scheduled Castes. The respondent was declared elected. The appellant`s election petition challenging the election was allowed by the High Court. This Court dismissed the respondent 's appeal holding, (1) that the respondent was converted to Christianity in 1949, (2) that on such conversion he ceased to be an Adi Dravida, (3) that he was reconverted to Hinduism but 4) assuming that membership of a caste can be acquired on conversion or reconversion to Hinduism, the respondent had failed to establish that he became a member of the Adi Dravida caste after reconversion. In the 1972 elections, the appellant and respondent again filed their nominations as Adi Dravidas for the seat reserved for Scheduled Castes. On objection by the appellant, the Returning officer rejected the nomination of the respondent on the view that on conversion to Christianity, he ceased to be an Adi Dravida and that on reconversion, he could not claim the benefit of the Constitution (Scheduled Castes) order, 1950. The appellant was declared elected. The respondent challenged the election and the High Court held that the question (a) whether the respondent embraced Christianity in 1949, (b) whether on such conversion be ceased to be an Adi Dravida, and (c) whether he was reconverted to Hinduism, were concluded by the decision of this Court in the earlier case. In fact, the respondent so conceded on the first two aspects. The High Court, however, held that the respondent had established twelve cir circumstances, which happened subsequent to the earlier election showing that he was accepted into their fold by the members of the Adi Dravida caste, that he was, therefore, at the material time, an Adi Dravida professing Hindu religion as required by paragraphs 2 and 3 of the Constitution (Scheduled Castes) order, and that therefore, his nomination was improperly rejected. Dismissing the appeal to this Court, ^ HELD: (1) The question whether the respondent abandoned Hinduism and embraced Christianity in 1949 is essentially a question of fact. The respondent having conceded before the High Court, that in view of the decision of this Court in the earlier case, the question did not survive for consideration and the High Court, having acted on that concession, the respondent could not be permitted to raise an argument that the evidence did not establish that he embraced Christianity in 1949. [89 D F] (2) Similarly. the question whether the respondent was reconverted to Hinduism stands concluded by the decision of this Court in the earlier case and it must be held that since prior to January 1967, the respondent was reconverted to Hinduism, he was, at the material time, professing the Hindu religion so as to satisfy the requirement of para 3 of the Constitution (Scheduled Castes) order [94C D] 83 (3) The High Court was right in the view that on reconversion to Hinduism, A the respondent could once again reconvert to his original Adi Deavida caste if he was accepted, as such, by the other members of that caste; and that, in fact, the respondent after his reconversion to Hinduism, was recognised and accepted as a member of the Adi Dravida caste by the other members of that community [97A B, 98G] (a) Since a caste is a social combination of person governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new B. member just as it may expel an existing member. The rules and regulations of the caste may not have been formalised they may not exist in black and white: they may consist only of practices and usages. If, according to the practice and usage of the caste any particular ceremonies are required to be performed for readmission to the caste, a reconvert to Hinduism would have to perform those ceremonies if he seeks readmission to the caste. But, if no rites or ceremonies are required to be performed for readmission of a person as a member of the caste, the only thing necessary would be the acceptance of the person concerned by the other members of the caste. [95 C F] C (b) The consistent view taken by the Courts from the time of the decision in Administrator General of Madras vs Anandachari (ILR , 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 was born and to which he belonged before conversion to another religion if the members of the caste accept him as a member. 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 caste are prepared to re admit 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 the community is willing to take him within the fold. [96 C R] Nathu vs Keshwaji I.L.R. Guruswami Nadar vs Irulappa Konar A.I.R. 1934 Mad. 630 and Durgaprasada Rao vs Sudarsanaswami, AIR 1940 Mad. 513, referred to. (c) It is the orthodox Hindu Society, still dominated to a large extent, particularly in rural areas, by medievalistic outlook and status oriented approach which attaches social and economic disabilities to a person belonging to a Scheduled Caste and that is why, certain favoured treatment is given to him by the Constitution. Once such a person ceases to be a Hindu and becomes a Christian the social and economic disabilities arising because of Hindu religion cease and hence, it is no longer necessary to give him protection; and for this reason, he is deemed not to belong to a Scheduled Caste. But, when he is reconverted to Hinduism. the social and economic disabilities once again revive and become attached to him, because, these are disabilities inflicted by Hinduism. Therefore, the object and purpose of the Constitution (Scheduled Castes) order 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. [96 F 97 A] (d) out of the 12 circumstances relied on by the High Court, 5 are not of A importance, namely, (1) that the respondent celebrated tho marriages of his younger brothers in the Adi Dravida manner; (ii) that the respondent was looked upon as a peace maker among the Adi Dravida Hindus of the locality; (iii) that the funeral ceremonies of the respondent 's father were performed " according to the Adi Dravida Hindu rites; (iv) that he participated in the first annual death ceremonies of another Adi Dravida; and (v) that the respondent participated in an All India Scheduled Castes Conference. The other seven circumstances, however, establish that the respondent was accepted and treated as a member of the Adi Dravida community, namely, (1) that he was invited to lay the foundation stone for the construction of the wall of an Adi Dravida temple: (ii) that he was asked to take part in the celebrations connected with an Adi Dravida temple. (iii) that he was asked to preside at a festival connected with an Adi Dravida temple; (iv) that he was a member of the Executive Committee of the Scheduled Caste Cell in the organisation of the Ruling 84 Congress; (v) that his children were registered in school as Adi Dravidas and that even the appellant had given a certificate that the respondent 's son was an Adi Dravida. (vi) that he was treated as a member of the Adi Dravida caste and was never disowned by the members of the caste; and (vii) that a Scheduled Caste Conference was held in the locality with the object of re admitting the respondent into the fold of Adi Dravida Caste and that not only was the purificatory ceremony performed on him at the Conference with a view to clearing the doubt which had been cast on his membership of the Adi Dravida caste by the earlier decision of this Court, but also an address was presented to him felicitating him on the occasion. [97 C 98 F] (4)(a) The question whether on conversion to Christianity the respondent ceased to be a member of the Adi Dravida caste is a mixed question of law and fact and a concession made by him in the High Court on that question does not preclude him from re agitating it in the appeal before this Court. r[89 G H] (b) Further, the decision given in the earlier case relating to the 1967 elections on the basis of the evidence led in that case, cannot operate as res judicata ill the present case which relates to the 1972 election and where fresh evidence has been adduced by the parties and moreover, when all the parties in the present case are not the same as those in the earlier case. [89 H 90 B] (c) When a 'caste ' is referred to in modern times, the reference is not to the 4 primary castes. but to the innumerable castes and sub castes that prevail in Hindu society. The general rule is that conversion operates as an expulsion from the caste, that is, a convert ceases to have any caste, because, caste is pre dominantly a feature of Hindu Society and ordinarily a person, who ceases to be a Hindu, would not be regarded by the other members of the caste as belonging to their fold. But it is not an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he be longed prior to his conversion. Ultimately, it must depend on the structure of the caste and its rules and regulations whether a person would cease to belong to the caste on his abjuring Hinduism. If the structure of the caste is such that its members, must necessarily belong to Hindu religion, a member, who Ceases to be a Hindu, would go out of the caste, because, no non Hindu can be in the caste according to its rules and regulations. Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hinduism but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because, even persons professing that other religion ca be members of the caste. This might happen where caste is based on economic or occupational characteristics and not on religious identity, or the cohesion of the caste as a social group is so strong that conversion into another religion does not operate to snap the bond between the convert and the social group. This is indeed not an infrequent phenomenon in South India, where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste. What is, therefore, material to consider is how the caste looks at the question of conversion. Does it outcaste or excommunicate the convert or does it still treat him as continuing within its fold despite his conversion. If the convert desires and intends to continue as a member of the caste and the caste also continues to treat him as a member notwithstanding his conversion, he would continue to be a member of the caste, and the views of the new faith hardly matter. Paragraphs 2 and 3 of the Constitution (Scheduled Castes) order. read together. also recognise THAT there may be castes specified as Scheduled Castes which comprise persons belonging to a religion different from Hindu or Sikh religion. In such castes, conversion of a person from Hinduism cannot have the effect of putting him out of the caste, though. by reason of para 37 he would be deemed not to be a member of the Scheduled Caste. B G; 93 C E, F H] Cooppoosami Chetty vs Duraisami Chetty, I.L.R. 33 Mad. 67; Muthusami vs Masilamani, I.L.R. G. Michael vs section Venkateswaran. AIR 1952 Mad. Kothapalli Narasayya vs Jammana Jogi, ; K. Narasimha Reddy vs G. Bhupathi, ; Gangat vs Returning Officer, [1975 85 1. S.C.C. 589 and Chatturbhuj Vithaldas Jasani vs Moreshwar Prasahram, , referred to. [It would therefore, prima facie, seem that on conversion to Christianity, the respondent did not automatically cease to belong to the Adi Dravida caste; but in view of the decision that on reconversion he was readmitted to the Adi Dravida faith, no final opinion was expressed on this point.] [94 B C]

The appellant was appointed as overseer by the Municipal Board, Kanpur, on March 5, 1937, and continued in its service up to March 19, 1951, when a copy of the resolution passed by the Board on March 5, 1951, purporting to dismiss him from service was handed over to him. On April 7, 1951, he filed an appeal to the Government against the order of dismissal from service, but he was informed on April 8, 1952, that his appeal was rejected. Thereafter on December 8, 1952, the appellant instituted a suit challenging the legality of the order of dismissal on various grounds, and the question arose whether the suit was within time. Sub section (I) Of section 326 of the U. P. Municipalities Act, 1916, provided that no suit shall be instituted against a Municipal Board " until the expiration of the two months next after notice in writing has been left at the office of the Board. explicitly stating the cause of action " ; and sub section (3) stated that " no action such as is described in sub section (1) shall. be commenced otherwise than within six months next after the accrual of the cause of action ". The appellant contended that the cause of action accrued to him on April 8, 1952, when the order of dismissal of his appeal to the Government was communicated to him and the suit, filed within eight months of that date, was within time, and relied on the provisions of section 58 (1) and (2), read with section 69, of the Act, which gave an officer dismissed by the Board a right of appeal to the Government within 30 days of the communication to him of the order dismissal : Held, that though the order passed by the Board on March 5, 1951, was subject to a right of appeal to the Government, the operation of the order was not suspended by the mere filing of the appeal, and the order became effective from March 19, 1951, when it was communicated to the appellant. The cause of action, therefore, accrued to him on that date, and the suit filed by him on December 8, 1952, was barred by limitation under section 326 of the U. P. Municipalities Act, 1916.

minal Appeal No. 127 of 1960. Appeal by special leave from the judgment and order dated August 4, 1958, of the former High Court at Bombay in Criminal Revision Application No. 728 of 1958. B. P. Maheshwari, for the appellant. 452 Vir Sen Sawhney, R. H. Dhebar and T. M. Sen, for the respondent. March 17. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is directed against the judgment of the Bombay High Court. The appellant was a ' Third Class Magistrate at Sanand in 1951. He received Rs. 200 in cash from Amar Singh Madhav Singh as deposit for security to be released on bail. This amount was not credited in the Criminal Deposit Rojmal and the appellant thereby committed criminal breach of trust with respect to the amount. The appellant was dismissed from service on April 4, 1953, as a result of a departmental enquiry. On June 9, 1954, a complaint was filed on behalf of the State against the appellant. He was convicted of the offence under section 409, Indian Penal Code, by the Trial Magistrate. The conviction was confirmed by the Extra Additional Sessions Judge, Ahmedabad. His revision was dismissed by the High Court. The only point urged in this appeal is that the learned Magistrate should not have taken cognizance of this offence without the previous sanction of the State Government in view of the provisions of section 197, Code of Criminal Procedure. It is not disputed that a Court could not have taken cognizance of this offence against the appellant if he had been a Magistrate on June 9, 1954. The appellant was not a Magistrate on June 9, 1954, when the complaint was filed. The question then is whether the provisions of section 197 of the Code of Criminal Procedure prohibit a Court from taking cognizance of an offence committed by a Magistrate while acting or purporting to act in the discharge of his official duty even when he is no longer a Magistrate on the date the Court takes cognizance. Sub section (1) of section 197, Code of Criminal Procedure, reads: "(1) When any person who is a Judge within the meaning of section 19 of the Indian Penal Code, or 453 when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and (b) in the case of a person employed in connection with the affairs of a State, of the State Government. " There cannot be much scope for the contention that a Court is prohibited from taking cognizance of an offence committed by a Judge while acting or purporting to act in the discharge of his official duty only when that person is a Judge at the time cognizance is taken, as otherwise full effect will not be given to the expression 'any person who is a Judge ', in the subsection. Similar expression is not used in describing a Magistrate or a public servant. But it is clear that those two persons should also be 'Magistrate or a public servant ' at the time cognizance is taken of an offence committed by them while acting or purporting to act in the discharge of official duty. In connection with 'public servant ' the expression who is not removable from his office save by or with the sanction of a State Government or the Central Government indicates that. It is only when the public servant concerned is in service that the question of his removal from office can arise. If the public servant has ceased to be a public servant, no such question arises. Therefore it seems proper to construe the expression 'when any Magistrate ' in the sub section to mean 'when a person who is a Magistrate '. Even if the expression be not construed in this form, the section says: 'when any Magistrate. is accused of any offence '. This indicates that it is only when the accusation is against a Magistrate that the Court will not take cognizance of an offence committed by 454 him while acting in the discharge of his official duty, without previous sanction. If a person is not a Magistrate at the time the accusation is made, the Court can take cognizance without previous sanction. It has been strenuously urged on behalf of the appellant that the expression 'when any Magistrate is accused of any offence ' refers to the stage when the accusation is first made against the Magistrate, that is to say, when it is alleged for the first time that the Magistrate has committed such an offence. There seems to be no justification to add the word 'first ' and read this expression as 'when any Magistrate is first accused of any offence '. The occasion when such an allegation is made for the first time against a Magistrate is not in connection with the Court 's taking cognizance of the offence but will always be either when a complaint is made to a superior officer in the department or to the police. Both these authorities are free to inquire into the accusation. It is only when the departmental enquiry or the police investigation leads to the conclusion that the matter is fit for going to Court that a complaint would be made or a police report would be submitted Io the proper Court for taking action against the Magistrate. It is at this stage that the Magistrate would be accused of the offence for the purposes of the Court and therefore it would be then that the Court will see whether the person proceeded against is a Magistrate or not. This view finds further support from the language of the clauses (a) and (b). The previous sanction, according to these clauses, will be of the Central Government if the Magistrate is employed in connection with the affairs of the Un ion and of the State Government if he is employed in connection with the affairs of a State. If the person is not employed, no sanction is necessary. Whether the person is so employed or not, is to be seen shortly before the submission of the complaint or police report to the Court. The sanction can be given by the proper authority on a consideration of the allegations and evidence available to establish them and therefore only after the investigation is complete. The submission of the 455 complaint or police report is expected to follow the grant of sanction within a reasonable time. A similar question arose in section A. Venkataraman vs The State (1) in connection with the interpretation of the provisions of section 6 of the Prevention of Corruption Act, 1947 (Act II of 1947). Sub section (1) of that section reads: "(1) No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Indian Penal Code or under subsection (2) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government; (c) in the case of any other person, of the authority competent to remove him from his office." This Court said at p. 1046: "The words in section 6(1) of the Act are clear enough and they must be given effect to. There is nothing in the words used in section 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed. . A public servant who has ceased to be a public servant is not a person removable from any office by a competent authority. " The same can be said with respect to the provisions of section 197 of the Code of Criminal Procedure. We therefore hold that no previous sanction is necessary for a Court to take cognizance of an offence committed (1) [1958] S.G.R. 1037 456 by a Magistrate while acting or purporting to act in the discharge of his _official duty if he had ceased to be a Magistrate at the time the complaint is made or police report is submitted to the Court, i.e., at the time of the taking of cognizance of the offence committed. We accordingly dismiss the appeal. Appeal dismissed.

The appellant, a Magistrate, was dismissed from service as a result of a departmental enquiry. On a complaint filed by the State Government he was convicted under section 409 of the Indian Penal Code. The point urged was that the trial Magistrate should not have taken cognizance of the offence without the previous sanction in view of the provisions of section 197 of the Code of Criminal Procedure. Held, that no previous sanction was necessary for a Court to take cognizance of an offence committed by a Magistrate while acting or purporting to act in the discharge of his official duty if he had ceased to be a Magistrate at the time the complaint was made or police report was submitted to the Court, i.e., at the time of the taking of cognizance of the offence committed. section A. Venkataraman vs The State, , applied.

The appellant was the cashier of the Municipal Board Hardwar. He was in charge of the cash and it was his duty to see that funds above Rs. 4,000/ were deposited 'in the treasury or the Imperial Bank. On audit it was found that money received by the Board totalling Rs. 52,144/ was not deposited as required by the rules. On complaint by the Chairman of the Board, a Sub Inspector of Police investigated the case and a case was registered under section 409 of the Indian Penal Code, But this case was withdrawn and the accused discharged on the ground that it was covered .by section 5 (2) of the Prevention of Corruption Act. Thereafter investigation was conducted by an officer as required by section 5A of the Act. But this investigation consisted of this that the duly authorised investigating officer went through the papers of the earlier investigation and decided to file a fresh prosecution on the basis of the earlier investigation. Sanction was obtained for (2) of the Act. Subsequently the four cases, in which the appellant and his brother were jointly charged were split up into 7 cases. In the three new cases only the appellant was tried. The Trial Judge found the appellant guilty unders 5 (2) read with section 5 (1) of the Act and sentenced him to undergo imprisonment and to pay fine. On appeal to the High Court, it upheld the conviction but reduced the sentence and. set aside the sentence of fine. The appellant appealed to this Court with special leave. The following points were urged in the appeal before this Court. Firstly, it was urged that the investigation 89 irregular and not in accordance. ,with section 5A of the Act in as much as the investigation was not conducted by a person authorised by that section. Secondly, it was contended that sanction was obtained only for the first four cases and no sanction was obtained for the three new cases (after splitting up the four) out of which the present appeals have arisen. It was further contended that the sanction was not with respect to section 5 (1) (C) or ' the Act though it was under section 5 (2)of the Act and therefore it was insufficient to confer ,jurisdiction on.the Special Judge to try the appellant under section 5 (1) (c) read with section 5 (2) of the Act. Held that section 5A is mandatory and not directory and an investigation conducted in violation thereof is illegal. But this illegality wilt not vitiate the results of the trial unless it is shown that it has brought about a miscarriage of justice; neither does it affect the competence or jurisdiction of the court to try the case. In the present appeals it is not shown that there has been miscarriage of justice as a result of the illegal investigation. H.N. Rishbud & Inder Singh vs State of Delhi, [1955] I S.C.R. 1150 followed State of Madhya Pradesh vs Mubarak All [1959] Supp. 2 S.C.R. 201 distinguished. The mere fact that in view of the provisions of section 239 of the Code of Criminal Procedure, 1898, the Special Judge thought it necessary to separate the trial of the appellant with respect to certain items for which there was sanction would not mean that these cases had no sanction behind it. The sanction of the original four cases would cover these three cases also. The allegations made in the sanction show that the sanctioning authority had section 5 (1) (c) in mind because the sanction speaks of misappropriation and embezzlement of the 'money of the ' Board and misappropriation and embezzlement is only to be found in section 5 (1) (c). As the words of the sanction stand they would cover a case of misappropriation or conversion to Ins own case by the appellant himself or by allowing others to do so. The sanction is sufficient for the purpose of giving jurisdiction to the Special Judge to take cognizance of the cases out of which the present appeals have arisen.

The appellant made a complaint against the respondent, an Assistant Commissioner of Police for having committed an offence under section 348, Indian Penal Code, alleging that on the arrest of the appellant under section 1208/420 Indian Penal Code, the respondent had refused to grant him bail until a certain sum was paid or acknowledged in writing to be paid to the complainant. The Chief Presidency Magistrate issued process. On revision, the High Court quashed the process holding that sanction of the State Government under section 197 Code of Criminal Procedure ought to have been obtained. On appeal by special leave, it was contended that the High Court in quashing the process had proceeded to decide on the merits of the case even though there was no material before it and therefore its judgment could not stand. Held: (i) For considering whether section 197 Code of Criminal Procedure would apply the Court must confine itself to the allegations made in the complaint. But that does not mean that it need not look beyond the form in which the allegations have been made and is incompetent to ascertain for itself their substance. (ii) The sanction of the appropriate authority for the respondent 's prosecution was necessary under section 197 Code of Criminal Procedure. Whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a public servant.

% This petition for special leave was against the judgment and order of the High Court of Bombay, rejecting the application for revocation of the authority of the respondent No. 1, the sole arbitrator under sections 5 and 11 of the ( 'The Act '). The petitioner invited tenders for the construction of the terminal building of a new international passenger complex (Phase II) at the Bombay Airport. The respondent No. 2, a partnership firm, submitted a tender which was accepted and a formal agreement followed, with a provision in the agreement for settlement of disputes through a sole arbitrator appointed under clause 25 of the conditions of contract by the competent authority. Certain disputes arose in which the petitioner sought claims amounting to Rs.85 lakhs. The respondent No. 2 the contractor approached the petitioner to refer the disputes to arbitration. The Chief Engineer of the petitioner appointed respondent No. 1 as the arbitrator and made a reference with regard to the claim of Rs.85 lakhs. The respondent No. 2 asked the Chief Engineer to refer further disputes to the arbitrator and, accordingly, on 16th May, 1986, a second reference was made with regard to 11 further points of dispute with claims amounting to Rs.1.17 crores. On 23rd December, 1986, the Chief Engineer made reference No. 3 to the Arbitrator with regard to claim amounting to Rs.5.81 crore. Thereafter, by applications of 8th and 9th June, 1987, the petitioner expressed objections to the references Nos. 2 and 3 made by the Chief Engineer contending that the references were null and void, being irregularly made, and took preliminary objections before the arbitrator to the arbitration proceedings, being lack of jurisdiction of the arbitrator on the ground that he was not validly appointed so far as references Nos. 2 and 3 were concerned. On 7th 371 August, 1987, the petitioner made an application before the arbitrator under section 13(b) of the Act with the request to state the matter before him for the opinion of the Court as special case. The arbitrator by his order dt. 3rd October, 1987, rejected the said application and the preliminary objections of the petitioner. Thereafter, the petitioner alleging that the arbitrator had formed his own opinion regarding the matters in issue, filed an appliction before the High Court for the revocation of the authority of the arbitrator on the ground of apprehension in the petitioner 's mind about bias of the arbitrator. The High Court by its judgment and order dt. 2nd February, 1988, rejected the application of the petitioner. The petitioner then moved this Court for relief by special leave. Dismissing the petition for special leave, the Court, ^ HELD: It was necessary to reiterate first what are the parameters by which an appointed arbitrator can be removed on the appliction of a party. It is well settled that there must be purity in the administration of justice as well as quasi justice involved in the adjudicatory process before the arbitrator. Once the arbitrator enters on an arbitration, he must not be guilty of any act which can possibly be construed as indicative of partiality or unfairness. It is not a question of the effect which a misconduct on his part had in fact upon the result of the proceeding, but of what effect it might possibly have produced. It is not enough to show that even if there was misconduct on his part, the award was unaffected by it and was in reality just; the arbitrator must not do anything which is not in itself fair and impartial. In the words of Lord O 'Brien, L.C.J, there must be a real likelihood of bias and not a mere suspicion of bias before proceedings can be quashed on the ground that the person conducting the proceedings is disqualified by interest. The purity of administration requires that the party to the proceedings should not have apprehension that the authority is biased and is likely to decide against the party, but it is equally true that it is not every suspicion felt by a party which must lead to the conclusion that the authority hearing the proceedings is biased, as held by the High Court. The apprehension must be judged from a healthy, reasonable and average point of view and not on a mere apprehension of any whimsical person. It cannot be and should never be in a judicial or quasi judicial proceeding that a party who is a party to the appointment could seek the removal of an appointed authority or an arbitrator on the ground that the appointee being his nominee had not acceded to his prayer about conduct of the proceedings. It is the reasonableness and apprehension 372 of an average honest man that must be taken note of. There was no substance found in the alleged grounds of apprehension of bias, examined in this light. [378D G; 379D H; 380A B] The High Court had examined five circumstances advanced before it. The first was that the arbitrator did not record the minutes of the meetings after September 29, 1987. The petitioner insisted that the arbitrator should record the minutes setting out the entire oral arguments advanced on behalf of the petitioner. This was not a reasonable request and the arbitrator rightly declined to do that. This was no basis of any reasonable apprehension of bias. [380C E] The next circumstance urged was that the preliminary objections raised by the petitioner were rejected without a speaking order. It was not necessary for the arbitrator to record a long reasoned order on the preliminary objections, and indeed the law does not demand writing such a long order. In any case, it would be open to the petitioner to file a petition under section 33 of the Act if the petitioner felt that the arbitrator had no jurisdiction to entertain the reference. It would be open to the petitioner to challenge the award to be declared by the arbitrator, including on ground of jurisdiction. [380E H] The third circumstance was that the petitioner had filed an application under section 13(b) of the Act calling upon the arbitrator to state a special case for the opinion of the Court and the failure of the arbitrator to raise the question of law was indicative of bias. This argument could not be accepted. Section 13(b) confers power on the arbitrator to state a special case but it does not make it obligatory on the part of the arbitrator to state a special case as soon as the party desires it. In this case, the petitioner itself agitated the issue of jurisdiction and other questions of law before the arbitrator. Once having done so, it was not proper for the petitioner to ask the arbitrator to state a special case. This was no ground for bias. [381A C] The fourth ground was that the first reference, involving a claim for Rs.85 lakhs, was heard for a considerable time, while the arguments in respect of the second and third references covering claims of Rs.1.17 crores and Rs.5.81 crores were concluded by the respondent No. 2 within one and one fourth of a day. The length of the time taken is no indication of either speeding up or any abuse of the proceedings. The Court agreed with the High Court that there is no rule which requires that the length of the argument should depend upon the magnitude of the claim made. [381D] 373 The other point urged by the petitioner was that the venue of arbitration was changed and this change was without the consent of the petitioner. Change of venue would in no manner indicate that the arbitrator was prejudiced against the petitioner. This was solely a fallacious ground to make out a case of alleged bias. [381E G] The other ground was that as, since 9th June, 1987, the petitioner had not paid for the air ticket of the arbitrator from Delhi to Bombay and for his residential accommodation, the respondent No. 2 must be providing for the air ticket and the hotel accommodation for the arbitrator, and the arbitration was likely to be biased. As rightly pointed out by the High Court, the petitioner, after the 9th June, 1987, seemed to have decided that the arbitrator should not proceed with the reference and in order to frustrate the arbitration proceedings, started raising all sorts of frivolous and unsustainable contentions. Having realised that the arbitrator was not willing to submit to its dictates, the petitioner declined to contribute for the air ticket, etc. No party should be allowed to throw out the arbitration proceedings by such tactics, and if the arbitrator did not surrender to the pressure, he could not be faulted nor could the proceedings of the arbitrator be allowed to be defeated by such a method. [381G H; 382B D] Another ground made was that there was a loss of confidence. There was no reasonable ground for such a loss of confidence. Every fancy of a party cannot be a ground for removal of the arbitrator. [382D] The Court was in agreement with the learned Judge of the High Court expressing unhappiness over the manner in which attempts had been made to delay the proceedings. [382G] The Court found no ground to conclude that there could be any ground for reasonable apprehension in the mind of the petitioner for revocation of the authority of the arbitrator appointed by the petitioner itself. While endorsing and fully maintaining the integrity of the principle 'justice should not only be done, but should manifestly be seen to be done ', it is important to remember that the principle should not be led to the erroneous impression that justice should appear to be done than it should in fact be done. There was no reasonable ground of any suspicion of bias of the arbitrator. The conduct of the arbitrator did not fall within the examples given and principles enunciated in the instances of cases where bias could be found in the Commercial Arbitration by Mustill and Boyd, 1982, Edn. [383A C] 374 Russell on Arbitration, 18th Edition, page 378, Re Brion and Brien, , 89; The King (De Vesci) vs The Justices of Queen 's Country, ; The Queen vs Rand & Ors., [1986] 1 Q.B. 230; Ramnath vs Collector, Darbhanga, ILR 34 Pat. 254; The Queen vs Meyer and Ors., ; Ekersley and Ors. vs The Messey Docks and Harbour Board, ; Gallapalli Nageswara Rao vs The State of Andhra Pradesh, ; ; Mineral Development Ltd. vs State of Bihar, ; Ranjit Thakur vs Union of India & Ors., ; and R.V. Camborne Justices Ex parte Pearce, , 855 referred to.

The appellants, in execution of a decree passed in a suit filed by them under section 180 of the U.P. Tenancy Act, 1939, on December 2, 1948 took back possession of the land in dispute from the respondent Nos. 4 and 5 (respondents for short). On the advent of the U.P. Zamindari Abolition and Land Reforms Act, 1950 ( '1950 Act ' for short) the respondents moved an application under section 232 of the 1950 Act to regain possession of the land on the ground that they hand acquired the status of adhivasis udder that Act. The Assistant Collector dismissed the application. The respondents appealed to the Additional Commissioner. The appellants contended that since the village in which the land in dispute was situated was put into consolidation under the U.P. Consolidation of Holdings Act, 1953 ( '1953 Act ' for short), the Additional Commissioner had no jurisdiction to hear the appeal. The appellants also submitted that a statement under section 8 and 8A of the 1953 Act was published in which they were shown as bhumidars of the land in question and the respondents had not objected to the entries. The Additional Commissioner, by his order dated June 15, 1956, allowed the appeal. Pursuant to that order the entries in the said statement were corrected and the respondents acquired possession of the land. The Board of Revenue, before whom the Additional Commissioner 's order was challenged, held that the Additional Commissioner had no jurisdiction to hear the appeal on merits. On September 11, 1958 the appellants moved an application under section 144 of the Code of Civil Procedure before the Sub Divisional officer praying for restitution of possession. This application and the subsequent appeals were rejected by the authorities. Dismissing a writ petition filed by the appellants the High Court held that the proceedings under section 144 of the Code of Civil Procedure could not succeed, but since the decision recorded by the authorities under the 1953 Act had become final, it was always open 288 to the petitioners to move the first appellate court to decide the appeal in terms of the decision of the consolidation authorities. Thereupon, in August 1966, the appellants filed a suit under sections 209 and 229 (b) of the 1950 Act against the respondents for a decree for possession on the ground that they were bhumidhars of the land in question under the 1950 Act. The Assistant Collector decreed the suit. The Additional Commissioner allowed the appeal filed by the respondents. The Board of Revenue dismissed the appellants ' second appeal. The appellants filed a writ petition in the High Court. A single Judge of the High Court dismissed the writ petition. A Division Bench of the High Court dismissed the special appeal filed by the appellants. Hence this appeal. The respondents contended: (i) that the suit was barred by limitation and the appellants were not entitled to the benefit of section 14(1) of the ; and (ii) that the suit was barred by section 49 of the 1953 Act. Dismissing the appeal, ^ HELD. 1. The party seeking benefit of section 14 (1) of the must satisfy the three conditions laid down in the section, namely, (i) that the Party as the plaintiff was prosecuting another civil proceeding with due diligence (ii) that the former proceeding and the later proceeding relate to the same matter in issue; and (iii) that the former proceeding was being prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.[297G H] 2. The expression 'other cause of a like nature ' will have to be read ejusdem generis with the expression 'defect of jurisdiction '. So construed the expression other cause of a like nature must be so interpreted as to convey something analogous to the preceding words from defect of jurisdiction '. The defect of jurisdiction goes to the root of the matter as the court is incompetent to entertain the proceeding. The proceeding may as well fail for some other defect. Not all such defects can be said to be analogous to defect of jurisdiction. Therefore, the expression other cause of a like nature on which some light is shed by the Explanation (C) to section 14 which provides "misjoinder of parties or causes of action shall be deemed to be a cause of like nature with defect of jurisdiction", must take its colour and content from the just preceding expression, defect of jurisdiction '. Prima facie it appears that there must be something taking to a preliminary objection which if it succeeds, the court would be incompetent to entertain the proceeding on merits. Such defect could be said to be of the like nature ' as defect of jurisdiction. Coversely if the party seeking benefit of the provision of section 14 failed to get the relief in earlier proceeding not with regard to anything connected with the jurisdiction of the court or some other defect of a like nature, it would not be entitled to the benefit of s 14. [300C G] India Electric Works Ltd. vs James Mantosh & Anr., ; , referred to. In a proceeding under section 144 of the Code of Civil Procedure, the party applying for restitution has to satisfy the court of first instance that a decree under which it was made to part with the property is varied or reversed or modified in appeal or revision or other proceeding or is set aside or modified in any suit instituted for the purpose and therefore, restitution 289 must be ordered. In such a proceeding, the party seeking restitution is not required to satisfy the court about its title or right to the property save and except showing its deprivation under a decree and the reversal or variation of the decree. [298C D; E] 4. In the instant case, the High Court rightly declined to grant benefit of the provision of sec 14 of the to the appellants because the second and third condition laid down in section 14 (1) were not satisfied. It may be assumed that the earlier proceeding under section 144 of Civil Procedure Code was a civil proceeding for the purpose of section 14 (1) and that the appellants were prosecuting the same with due diligence. But it is difficult to accept that the subsequent proceeding relates to same matter in issue as was involved in the earlier proceeding. The appellants merely claimed in their application under section 144 that in view of the reversal of the order by the Board of Revenue the respondents are not entitled to retain possession and that restitution should be evicted because the appellants lost possession under the order of the Additional Commissioner which was reversed by the Board of Revenue. The cause of action was the reversal of the order of the Additional Commissioner. When they failed to obtain restitution, the appellants filed a substantive suit under sections 209 and 229 (b) of the 1950 Act. It was a suit on title as bhumidars for possession against respondents alleging unauthorised retention of possession. It had nothing to do with the order of the Additional Commissioner. Moreover, the appellants failed in the earlier proceeding not on the ground that the authority had no jurisdiction to entertain the application nor on the ground that there was any other defect of a like nature, but on merits inasmuch as the authorities and the High Court held that in view of the decision of the authorities under 1953 Act, the appellants are not entitled to restitution. [301B; 299A; 298G H; 299A] 5. Once an allotment under section 49 of the U.P. Consolidation of Holdings Act, 1953 became final, a suit would not lie before a civil or revenue court with respect to rights in lands or with respect to any other matter for which a proceeding could or ought to have been taken under that Act. [301G] 6. In the instant case, once the village was denotified, as found by the authorities and the High Court the allotment made under the 1953 ACI became final and it could not be questioned in a suit before civil or revenue Court in view of the bar enacted in section 49. [302A B] 7. The appellants ' submission that after reversal of the Additional Commissioner 's order dated June 15, 1956 the respondents had neither a legal nor equatable right to be in possession, has no force. Assuming that the appellants had acquired the status of bhumidars the same was subject to the provision contained in section 20 (b) read with Explanation I of the U.P. Zamindari Abolition and Land Reforms Act, 1950 according to which, as correctly found by single Judge of the High Court, the respondents would become adhivasis of the land. Such adhivasis if they had lost possession were entitled to regain the same by making an appropriate application under section 232 of that Act. The respondents did move such an application which ultimately was accepted by the Additional Commissioner. Therefore, primarily, legally and additionally in equity, respondents have an iron clad case to be in possession against appellants. [294H; 296D G] 290

The appellant (holder of an inam in Madhya Pradesh) served a notice an his tenant, the respondent, terminating to tenancy on the ground that he wanted the land for personal cultivation and filed a suit for ejectment. The trial court decreed the suit. During the pendency of the appeal in the District Court, article 32 of 1954 was enacted, and pursuant to its provisions the hearing of the appeal was stayed. After the Madhya Pradesh Land Revenue Code came into force in 1959, the District Court held that by virtue of section 185 of that Code the respondent acquired the rights, of an occupancy tenant and dismissed the suit. The High Court confirmed the judgment of the District Court. In appeal to this Court, it was contended that : (i) the rights of an occupancy tenant arise in favour of a personl under section 185(1) (i) (a) only if there was between him and the landlord a subsisting tenancy at the date when the Code came into force and since under the law in force before the commencement of the Code, the respondent had ceased to be a tenant because of the notice terminating the contract of tenancy the respondent was not invested with the rights of an occupany tenant; and (ii) bi virtue of sections 261 and 262(2), the operation of section 185 is expressly excluded when a person, against whom ejectment proceedings have been instituted prior to the commencement of the Code in enforcement of a right then acquired, claims the status of an occupancy tenant. HELD : (i) The respondent acquired the right of an occupancy tenant under the Code, because the expression "tenant" in section 185 (1) (ii) (a) includes a person whose tenancy was terminated before the commencement of the Code. The definition of the expression "tenant" in the Code postulates a subsisting tenancy, but the position of a tenant prior to the date on which the Code was brought into force is not dealt with in the definition. In the context in which the expression "tenant" occurs in section 185(1), that definition could not be intended to apply in deter ining the conditions which invest a holder of land with the status of an occupancy tenant at the commencement of, the Code. Therefore having regard to the object of the enactment the expression should be ascribed the meaning it 'has in Act 32 of 1954. Under sections 3 & 4 of that Act a person who was inducted into the land as a tenant and who continued 'to hold the land at the commencement of the Act was entitled to protection against eviction and continue as tenant, notwithstanding that under the law in force prior to the commencement of the Act. the contractual relationship of landlord and tenant was determined. [432 D; 432 14 433 C] 428 There is no reason to think that the Legislature sought to make a A distinction between tenants of Inam land in section 185 (1) (ii) (a) and ryotwari sub lessees of other lands in section 185(1)(ii)(b). Therefore, if the expression "ryotwari sub lessee ' in section 185(1)(ii)(b) includes a sub lessee whose tenaure was terminated before the commencement of the Code, a tenant of inam land, whose tenancy has been terminated would also be included in the protection, provided at some time prior to the date on which the Code was brought into force, he was in possession of the land as a tenant, and he continued to hold the land till the date of the commencement of the Code. [434 E H] (ii) The provisions of the Code appeal to tenants in proceedings for ejectment pending at the commencement of the Code. The proviso to section 261 protects a right which had been acquired under a law repeated by the Code and the right could be enforced as if the code had not been passed. But the right to evict a tenant was governed by the general law of landlord and tenant and was not acquired under any repealed law. The proviso had no operation and a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law enacted in the Code. Therefore, the tenant could not ' be evicted otherwise than in the manner and for reasons mentioned in a. 193 of the Code but, personal requirement for cultivation of land is not a ground on which a claim for ejectment could be maintained. [435 G436 A] Section 262(2) is only procedural it provides that a civil court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, Which, if it had been instituted after the Code was passed would have been tried by a revenue court; and in the disposal of such a suit, the civil court will be governed by the procedural law applicable there to prior to the commencement of the Code. It does not nullify the statutory conferment of occupancy right upon persons in the position of tenants against whom proceedings were taken at the date when the Code was brought into force. [436 B D]

The Mysore Ordinance 4 of 1970 which came into effect from 7th August 1970 omitted the words "or police" in section 60(b) of the Mysore Excise Act, 1965 which provided for taking of cognizance by the Magistrate "on his own knowledge or suspicion or on the complaint or report of an excise or police officer". It also inserted a new section 60B whereby offence under section 34 was made cognizable and the provisions of the Criminal Procedure Code 1898 with respect to cogniz. able offences made applicable to such offence. The earlier position which obtained prior to the said Ordinance was restored by the Mysore Amendment Act No. 1 of 1971 which received the President 's assent on 20th January 1971 but which was deemed to have come into force on 7th August 1970. Section 23 of the 1971 Act provided that the amendment to section 60 made by the Ordinance of 1970 shall be deemed never to have been made and the provisions of section 60 as they stood prior to the said amendment shall be deemed to continue to be in force. The judicial Magistrate, Badami, on a complaint filed by a police officer refused to take cognizance of an offence for the illegal Possession of 41/2 tolas of ganja under section 34 of the Mysore Excise Act 1965 in view of the provisions if section 60(b) ibid which represented the law as it then stood. The revision application before the Sessions Court was dismissed on 15 1 1971. A further revision filed before the High Court on 14 6 1971 was also dismissed in limine. However after the dismissal of the revision by the High Court on a fresh complaint filed by the police in respect of the same offence as per the amending Act I of 1971, the judicial Magistrate took cognizance of the of fence, convicted the accused and sentenced hun to simple imprisonment for three months and also to pay a fine of Rs. 100/ . Notwithstanding the conviction the State pressed its appeal by special leave against the judgment of the High Court dismissing the revision. Allowing the appeal, the Court, HELD: (1) The High Court as well as the court of Ses sions were clearly in error in affirming the order made by the learned judicial Magistrate. [547A] (2) The charge sheet was validly filed before the learned judicial Magistrate by the Police and the judicial Magistrate was entitled to take cognizance of the offence on the basis of such charge sheet. [547A B] (3) The result of the enactment of section 23 by Mysore Act I of 1971 was that the amendment made in section 60 clause (b) by deleting the words "or police" by Mysore Ordinance No. 4 of 1970 as oblitarated and wiped out with retrospective effect so that in the eye of the law it was never made at all. [546F] (4) It is now well settled law that when a legal fiction is enacted by the Legislature the court should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect to it. The clear effect of the legal fiction enacted in section 23 of Mysore Act No. 1 of 1971 was that the 545 words "or police" were always there in cl. (b) of section 60 even at the time when the charge sheet was presented before the learned Magistrate and if that be so, the learned Magistrate was in error in refusing to take cognizance of the complaint on the ground that the charge sheet was not filed by an excise officer but by the police. [546G H, 547A] M.K. Venkatachalam I.T.O. & Anr. vs Bombay Dyeing & Mfg. Co. Ltd. ; , applied.

A Sub Inspector of Police arrested the respondent for offences under sections 4 and 5 of the Bombay Prevention of Gambling Act on a warrant issued under section 6 of the Act by the Deputy Superintendent of Police. The respondent 's application for release on bail was rejected by the Sub Inspector on the ground that a circular order issued by the District Superintendent of Police prohibited him from releasing on bail persons that were arrested in respect of offences under sections 4 and S of the Act. He, however, produced the respondent before a Magistrate. D The High Court in the writ petition filed by the respondent upheld his contention that offences under sections 4 and S of the Act being cognizable and bailable, the Commissioner of Police and officers to whom a warrant can be granted for the purpose of investigation under the Act, have to release the accused on bail under the provisions of section 496 of the Code of Criminal Procedure 1898 since the impugned order ran counter to the statutory provisions it was bad in law. The High Court also held that 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 offences under sections 4 and S of the Act without warrant, the offences are cognizable. Dismissing the appeal, ^ HELD: (a) Since the 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 offences under sections 4 and S of the Act are cognizable. Such offences are admittedly bailable. [400 F G] (b) 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 of executive instructions are contrary to or inconsistent with the provisions of the Code and 392 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. [400 G H] Union of India vs I. C. Lala etc., A.I.R. 1973 S.C. 2204=[1973] 3 SCR 818, 824 applied. (a) Under Section 6(1) of the Act (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 subsection, 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 tho aforesaid acts and things, constituted under sub clause (i) is the Commissioner of Police. The sub clause only enable him to employ his subordinate police officers not below the authorised rank of Sub Inspector to execute his general order or special warrant to arrest for offences under sections 4 and 5 of the Act. 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. [396D F & G] (b) It is settled law that the expression "Police officer" used in the definition of cognizable offence in section 4(1)(f) of the Code of Criminal Procedure does not necessarily mean "any and every" police officer. 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 only. [398 C] Queen Empress vs Deodhar Singh ILR , 150 approved.

32 of 1959. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. V. A. Seyid Muhamad, for the petitioner. N. section Bindra, R. H. Dhebar and T. M. Sen, for the respondents. March 22. The Judgment of the Court was delivered by section K. DAS, J. This is a writ petition under article 32 of the Constitution. The relevant facts lie within a narrow compass, and the short point for decision is whether in the circumstances of this case the petitioner can complain of an infringement of the fundamental rights guaranteed to her under articles 19(1)(f) and 31 of the Constitution. The relevant facts are these. The petitioner 's husband Kunhi Moosa Haji, it is alleged, carried on a hotel business in Karachi which is now in Pakistan. The petitioner stated that her husband had been carrying on the said business since 1936. It is not in dispute, however, that in the relevant year, that is, 1947, when the separate dominion of Pakistan was set up, the petitioner 's husband was in Karachi. The petitioner stated that at the end of August, 1949, her husband returned to Malabar, in India. On behalf of ' respondent No. 1, the Ministry of Rehabilitation, Government of India, it is averred that the petitioner 's 507 husband surreptitiously returned to India without a valid passport in 1953 and was arrested for an alleged infringement of the provisions of the Foreigners Act. On December 7, 1953, Kunhi Moosa Haji transferred in favour of his wife his right., title and interest in seven plots of land, details whereof are not necessary for our purpose. On December 8, 1954, about a year after the transfer, a notice was issued to both the petitioner and her husband to show cause why Kunhi Moosa Haji should not be declared an evacuee and his property as evacuee property under the provisions of the , (hereinafter called the Act). The petitioner 's husband did not appear to contest the notice, but the petitioner entered appearance through her advocate. By an order dated January 29, 1955, the Assistant Custodian of Evacuee Property, Tellicherry, declared that Kunhi Moosa Haji was an evacuee under the provisions of section 2(d)(1) of the Act and the plots in question were evacuee property within the meaning of section 2(f) of the Act. From this decision the petitioner unsuccessfully carried an appeal to the Deputy Custodian of Evacuee Property, Malabar, who affirmed the decision of the Assistant Custodian, Tellicherry, by his order dated July 11, 1955. The petitioner then moved the Deputy Custodian of Evacuee Property, Malabar, for a review of his order under section 26(2) of the Act. This petition also failed. Then the petitioner moved the Custodian General of Evacuee Property, New Delhi, in revision against the order of the Deputy Custodian. This revision petition was dismissed by the Custodian General by his order dated April 9, 1956. The petitioner then made an application to the Ministry of Rehabilitation for an order of restoration of the property in her favour under the provisions of section 16(1) of the Act. This application was also rejected. The petitioner then moved the High Court of Kerala by means of a writ petition under article 226 of the Constitution. This petition was, however, withdrawn by the petitioner on the ground that the Kerala High Court had held in an earlier decision reported in 508 Arthur Import & Export Company, Bombay vs Colletor of Customs, Cochin (1) that when an order of an inferior tribunal is carried up in appeal or revision to a superior tribunal outside the court 's jurisdiction and the superior tribunal passes an order confirming, modifying or reversing the order, the High Court cannot issue a writ to an authority outside its territorial jurisdiction. Then, on March 5, 1959, the petitioner filed the present writ petition and the basis of her contentions is that the fundamental rights guaranteed to her under articles 19(1)(f) and 31 of the Constitution have been infringed and she is entitled to an appropriate writ or order from this Court for the restoration of the property transferred to her by her husband. In her petition, the petitioner has contested the validity of the notice issued on December 8, 1954, on the ground of noncompliance with certain rules. She has also contested on merits the correctness of the findings arrived at by the relevant authorities that Kunhi Moosa Haji was an evacuee and the property in question was evacuee property. Learned Counsel for the petitioner tried to argue that the invalidity of the notice issued under section 7 of the Act went to the root of jurisdiction of the subsequent orders. We do not, however, think that any question of lack of jurisdic tion is involved in this case. The petitioner appeared in response to the notice and raised no point of jurisdiction. In subsequent proceedings before the Deputy Custodian and the Custodian General she contested the correctness of the orders passed on merits: no question of jurisdiction was canvassed at any stage and we do not think that the notice suffered from any such defect as would attract the question of jurisdiction. We need only add that no question of the constitutionality of any law is raised by the, petitioner. In the view which we have taken, this petition is concluded by the decision of this Court in Sahibzada Saiye d Muhammed Amirabbas Abbasi vs The State of Madhya Bharat (2) and it is not necessary to consider on merits the contentions urged on behalf of the petitioner. The position as we see it is this. This Court (1) (1958) 18 k. L.J. 198. (2) ; 509 can exercise jurisdiction under article 32 of the Constitution only in enforcement of the fundamental rights guaranteed by Part III of the Constitution. In the present,case, the appropriate authorities of competent jurisdiction under the Act have determined the two questions which fell for their decision, namely, (1) that Kunhi Moosa Haji was an evacuee within the meaning of section 2(d) of the Act and (2) that his property was evacuee property. It was open to the petitioner to challenge the decision of the Custodian General, New Delhi, by moving the appropriate High Court in respect thereof; it was also open to the petitioner to move this Court by way of special leave against the decision of the Custodian General or of the other appropriate authorities under the Act. The petitioner did not, however ', choose to do so. The result, therefore, is that the order of the custodian General has become final. Under section 28 of the Act the order cannot be called in question in any court by way of an appeal or revision or in any original suit, application or execution proceeding. It is, indeed, true that section 28 of the Act cannot affect the power of the High Court under articles 226 and 227 of the Constitution or of this Court under articles 136 and 32 of the Constitution. Where, however, on account of the decision of an authority of competent jurisdiction the right alleged by the peti tioner has been found not to exist, it is difficult to see bow any question of the infringement of that right can arise as a ground for a petition under article 32 of the Constitution, unless the decision of the authority of competent jurisdiction on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of As long as that decision stands, the petitioner cannot complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner is really dependent on whether Kunhi Moosa Haji was an evacuee and whether his property is evacuee property. If the decision of the appropriate authorities of competent jurisdiction on these questions has become final and cannot be treated as a nullity or cannot be otherwise got rid of, the petitioner cannot complain of any infringement of her 510 fundamental right under articles 19(1)(f) and 31 of the It is worthy of note that the relevant provisions of the Act have not been challenged before us as unconstitutional, nor can it be seriously contended before us that the orders of the appropriate authorities under the Act can be treated as null and void for want of jurisdiction. What is contended before us is that the orders were incorrect on merits. That is a point which the petitioner should have agitated in an appropriate proceeding either by way of an appeal from the order of the Custodian General with special leave of this Court or by an appropriate proceeding in the High Court having jurisdiction over the Custodian General. The petitioner did not take either of these steps, and we do not think that she can be permitted now to challenge the correctness on merits of the orders of the appropriate authorities under the Act on a writ petition under article 32 of the Constitution on the basis that her fundamental right has been infringed. In Sahibzada Saiyed Muhammed vs The State of Madhya Bharat (1) the facts were these. The petitioner who had migrated to West Pakistan applied to the High Court of Madhya Bharat for a writ of habeas corpus for directions to produce petitioners 2 and 3, his minor children, before the court on the allegation that they were wrongfully confined and, upon the dismissal of the said application, be applied to the District Judge of Ratlam under the Guardian and Wards Act for his appointment as guardian of the person and property of the said minors; the District Judge rejected the application and appointed another person as guardian; the petitioner then appealed to the High Court against the order of the District Judge and that appeal was dismissed. He applied for special leave to appeal to this Court and that application was also rejected. Thereafter be moved an application under article 32 of the Constitution and it wag held that where on account of the decision of a court of competent jurisdiction, the right alleged by the petitioner does not exist and, therefore, its infringement cannot arise, (1) ; 511 this Court cannot entertain a petition under article 32 for protection of the alleged right. We are of the opinion that the principle of this decision also applies to the present case. The circumstance that in Sahibzada Saiyed Muhammed vs the State of Madhya Bharat (1) an application for special leave was made and rejected makes no difference to the application of the principle. So far as the principle is concerned, the position is the same when an application is made and rejected and when no application is made. The re sult in both cases is that the decision becomes final and binding on the parties thereto. We must make it clear that we are not basing our decision on the circumstance that the High Court of Kerala rejected the application of the petitioner on the ground that it had no territorial jurisdiction. We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceeding. As long as that decision stands, the petitioner cannot complain of the infringement of a fundamental right, for she has no ,such right. We would, accordingly, dismiss the petition with costs. Petition dismissed.

The petitioner 's husband transferred certain property to the petitioner. A notice under section 7, , was issued to the petitioner and to her husband and the husband was declared an evacuee and the property was declared as evacuee property by the Assistant Custodian. An appeal to the Deputy Custodian and thereafter a revision petition to the Custodian General by the petitioner were dismissed. The petitioner applied to the Supreme Court under article 32 of the Constitution contending that her fundamental rights under 64 506 articles 19(1)(f) and 31 were infringed by the order of the Assistant Custodian and prayed for the restoration of the property. Held, that the petition under article 32 was incompetent as no question of violation of any fundamental right arose in the case. The decision of an authority of competent jurisdiction had negatived the existence of the right alleged by the petitioner and unless that decision was held to be a nullity or could be otherwise got rid of, the petitioner could not complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner was dependent on whether her husband was an evacuee and whether his property was evacuee property. The decision on that question had become final and no question of lack of jurisdiction was involved. Sahibzada Saiyed Muhammed Amirabbas Abbasi vs The State of Madhya Bharat, ; , applied.

When a notification is published under section 12(1) of the , under section 12(2) the right, title and interest of the evacuee in the evacuee property is extinguished and the property vests absolutely in the Central Government free from all encumbrances. Section 13 of the Act provides for the payment of compensation for such acquisition in accordance with the principles agreed upon between the Government of India and Pakistan. No such principles of compensation had, however, been agreed upon between the two Governments. The appellant was declared an evacuee and his property as evacuee property. When the notification under section 12 was issued, he challenged it but the High Court dismissed his writ petition holding that the vesting in the Central Government was unconditional and did not depend upon the fixation or payment of compensation under section 13. Dismissing the appeal to this Court, ^ HELD: (1) In the face of the clear provision in section 12(2), it could not be contended that the evacuee property did not vest in the Central Government until compensation for its acquisition had been determined and paid. [781F] (2) The appellant could not rely on article 31(2) because, article 31(5) expressly provides that it shall not affect the provisions of any law which the State may make either in pursuance of an agreement with the Government of any other country "or otherwise". So even in the absence of an agreement with the Government of Pakistan, it is permissible for the State to make the Act, and its provisions would not be affected by anything contained in article 31(2). [781CD] (3) Under section 13, compensation would have been payable to the appellant in accordance with any principles agreed upon between the Government of India and Pakistan. Therefore, in the absence of such an agreement, the appellant would not be entitled to claim any compensation. [781 E]

Respondent Ashok Deshmukh, was a Panchayat and Social Education Organiser in the Social Welfare Department, Government of Madhya Pradesh, when he was temporarily posted as an officiating Block Development Officer in the Panchayat and Rural Development Department of the Government of Madhya Pradesh on 11th March, 1983. His services were returned back to his parent department on 29th June, 1984. Aggrieved by the order of repatriation, the respondent filed a suit in the Court of Civil Judge, Udaipura, and obtained a temporary injunction. The temporary injunction having been vacated, he filed a writ petition in the High Court. After the writ petition was admitted and stay order issued, the respondent withdrew the civil suit. Two principal contentions were urged before the High Court were; (1) that the order of repatriation was contrary to Rule 14 of the M.P. Civil Services Rules, and (2) that the order of repatriation was the result of bias and mala fide attitude on the part of the Secretary, Panchayat and Rural Development Department. The High Court held (1) that the order of repatriation had been passed in violation of Rule 14 of the Rules, and (2) that although there was no material on record to support the allegation of any bias and mala fide on the part of the Secretary, the order of repatriation was the result of certain `wrong complaints ' made against him. The High Court quashed the order of repatriation and directed the State Government to retain the respondent as officiating Block Development Officer so long as persons junior to him were retained. 303 Allowing the appeal, it was, ^ HELD:(1) Rule 14 dealt with the question of reversion of a permanent Government servant from the officiating higher grade to the lower grade, and did not apply to a case of deputation from one department to another. The High Court was, therefore, in error in holding that the impugned order of repatriation had been passed in violation of rule 14 of the Rules. [307D F] (2) The allegations of bias and mala fides made against the Secretary have remained unsubstantiated. Unless the Court is sure that the impugned order is really based upon allegations of bias and mala fides it should not proceed to quash administrative orders which are made in exigencies of the administration. [310F G; C D] (3) If mere existence of some allegations against an officer, which on enquiry had been found to be untrue, were to be treated as the basis for quashing any order of transfer or repatriation made in respect of any officer then almost every such order of transfer or repatriation would have to be quashed because there would always be some complaint by some party or other against every officer. [310C D] (4) The impugned order of repatriation did not on the face of it show that there was any stigma attached to the respondent by reason of the said order. [310F] (5) On the material placed before it, the Court did not find that the order of repatriation was arbitrary and violative of Article 14 of the Constitution. [310G] C. Thiraviam Pillai vs State of Kerala, [1976] 2 S.L.R. 395, referred to.

On July 7, 1949, the then State of Mysore passed the Mysore Administration of Evacuee Property (Emergency) Act, 1949, providing, inter alia, for the appointment of a Custodian of Evacuee Property for the State of Mysore for the purpose of administering evacuee property in the State. By section 6 all evacuee property vested in the Custodian under section 5 had to be notified by him in the Mysore Gazette, while section 8 provided that any person claiming any right to any property notified under section 6 might prefer a claim to the Custodian on the ground that the property was not evacuee property. Section 30 provided for an appeal to the High Court where the original order under section 8 had been passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian. This Act was replaced by the Mysore Administration of Evacuee Property (Second) (Emergency) Act, 1949, which came into force on November 29, 1949. Section 53(2) of that Act provided that anything done or any action taken in the exercise of any power conferred by the earlier Act shall be deemed to have been done or taken in the exercise of the powers conferred by the later Act. Under the second Act, instead of the High Court an appeal from the order of the Custodian lay to the Custodian General, appointed by the Government of India under the provisions of the Administration of Evacuee property Ordinance, 1949, which had come into force on October 18, 1949 ; and in addition, section 25 Of that Act provided for revision by the Custodian General of orders passed by the Custodian. The , which was passed by Parliament and which came into force on April 17, 1950, provided substantially for all matters contained in the second 856 Mysore Act. Section 27 gave the Custodian General powers of revision against the orders of the Custodian, and section 58 as amended and given retrospective operation, provided that " if, immediately before the commencement of this Act, there was in force in any State to which this Act extended any law which corresponded to this Act and which was not repealed. . that corresponding law shall stand repealed. " On September 21, 1949, the Custodian issued a notification declaring the properties of the respondents as evacuee properties, and claims filed by them under section 8 of the earlier Mysore Act were investigated by the Deputy Custodian who dismissed the same on April 17, 1950. Appeals were filed against the said order before the Custodian and were allowed on August 22, 1950. on the ground that there was not sufficient evidence to prove the respondents as evacuees and consequently the properties in question could not be treated as evacuee properties. On October 3, 1950, the Custodian General gave notice to the respondents under section 27 of the , in respect of the order of the Custodian dated August 22, 1950, and asked them to show cause why the said order be not revised. On February II, 1952, the Custodian General set aside the order and directed the Custodian to dispose of the cases afresh. On December 2, 1952, the Custodian passed an order by which he held that the respondents were evacuees and that their properties were evacuee properties. Against this order the respondents filed two appeals to the High Court, and also two writ petitions under article 226 of the Constitution as they had doubts whether any appeal lay to the High Court. The High Court took the view that the Custodian General bad no power under section 27 of the Act to revise the order of the Custodian and that as the proceedings in these cases began under section 8 of the first Mysore Act and as there was nothing corresponding to that section either in the second Mysore Act or in the Act of 1950, the High Court was entitled to hear the appeal from the order of December 2, 1952, as that order must be held to have been passed in proceedings under the first Mysore Act. The High Court then went into the matter as an appellate court and came to the conclusion that the order of the Custodian dated December 2, 1952, 'Was erroneous. Held, that the High Court erred in holding that the order of the Custodian General dated February II, 1952, was without jurisdiction. Considering the purpose for which the Administra tion of Evacuee Property Act, 195o, was passed and the successive saving clauses in the second Mysore Act and in the Act, the Custodian General bad the power under S ' 27 to call for the record of the proceeding in which the order of August 22, 1950, was passed and consider its legality or propriety. Held, further, that the High Court was also in error in holding that appeals to it lay from the order of December 2, 1952. 857 An order made in a proceeding commenced under section 8 of the. first Mysore Act must be deemed to be an order made under section 5(1) of the second Mysore Act or under section 7(1) of the Act, in view of section 53(2) of the second Mysore Act and section 58(3) of the Act. Consequently, by necessary intendment, the legislature must have intended that the provision as to appeals provided by subsequent legislation should supersede the provision as to appeals under the first Mysore Act. Garikapatti Vecraya vs N. Subbiah Choudhury ; , referred to. Since the main question for decision in these cases was whe ther the respondents were evacuees, and as such a question was one of fact, the High Court was not justified in looking into the order of December 2, 1952, as an appellate court in dealing with applications for a writ of certiorari under article 226 of the, Constitution. Hari Vishnu Kamath vs Syed Ahmad Ishaque and Others, ; , applied.

By an election petition two electors of the constituency, the appellants, challenged the election of the first respondent to, the Mysore Legislative Assembly in 1967 from the Jamkhandi constituency. It was alleged inter alia that the first 'respondent had ceased to be a person ordinarily resident within the constituency during the period relevant to the 1967 General Elections, and the validity of the entry of his name on the Electoral Roll was questioned; it was claimed that he was not therefore qualified to stand for election from the constituency. The petition also contained allegations of corrupt practices including misuse by certain Police Officers of their position to prevent voters from voting freely, and malpractices by the Presiding Officer at the time of polling, etc. After framing an issue on the question and taking the view that the Court had jurisdiction to determine the validity of the inclusion of the first respondent 's name as an elector on the Electoral Roll, the trial judge held on a consideration of the evidence, that the petitioners had failed to prove he first respondent was not an elector and was not qualified to stand for election from the constituency. The High Court also rejected the allegations of corrupt practices and dismissed the petition On appeal to this Court, HELD : (i) Under section 30 of the Representation of the People Act, 1950, no civil court shall have jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled for registration in an Electoral Roll for a constituency. There are elaborate rides which have be en promulgated for preparation and revision of the Electoral Rolls, namely, Electors ' Rules 1960. The conditions about being ordinarily resident in a constituency for the purpose of registration are meant for that purpose alone and have nothing to do with the disqualifications for registration which are prescribed by section 16 of the Act of 1950, which alone are relevant to the definition of an "elector" as given in section 2(1)(e) of the Act of 1951. The entire scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an Electoral Roll of a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless some question of violation of the provisions of the Constitution is involved. The present case did not also involve any violation or infringement of Article 173 or any other provision of the Constitution. [,615 H] The question whether respondent No. 1 was ordinarily resident in Jamkhandi constituency during the material period and was entitled to 612 be registered in the Electoral Roll could not therefore be the subject matter of enquiry except in accordance with the provisions of the Act of 1950. Under section 100(1) (d) an election can be declared void only if the result of the election, in so far as it concerns a returned candidate, has been materially affected by any non compliance with the provisions of the Constitution or of the Act of 1951 or of any rules or orders made thereunder. Nothing could be clearer than the ambit of this provision. It does not entitle the court in an election petition to set aside any election on the ground of non compliance with the provisions of the Act of 1950 or of any rules made hereunder with the exception of section 16. [617 E] Durga Shankar Mehta vs Thakur Raghurai Singh & Others, [1955] 1 S.C.R. 267; K. Sriramulu vs K. Deviah ; Roop Lal Mehta vs Dhan Singh and Others ; referred to. On the evidence, no reasons were shown for this court to differ from the findings of the Trial Judge on the allegations of corrupt practices. Meghraj Patodis vs R. K. Birla & Others, Civil Appeal No. 1094/69 dated 10 9 1970; referred to.

The appellant was a protected lessee or tenant of the agricultural land in dispute, under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The respond ent became the landlady of the land on June 29, 1959 when her father effected a partition of his ancestral lands between himself, on the one hand, and his wife and his two minor daughters, including the respondent, on the other. This was the third partition effected by the respondent 's father, who had earlier also twice partitioned the same lands. Sometime in 1962, the respondent initiated proceedings against the appellant for recovery of possession of the suit land on the ground of default. The Tehsildar dismissed the application holding that the respondent was not a landlady since the partition in question was illegal. The Deputy Collector in appeal confirmed this decision, and the Maha rashtra Revenue Tribunal rejected the respondent 's revision. In the Writ Petition filed before the High Court under Article 227 of the Constitution against the above decision of the three authorities below, the High Court remanded the matter to the Tehsildar for investigation into the validity of the partition. On remand, the Tehsildar held that the partition effected on June 29, 1959 was bogus. Thereafter, in a different proceeding the Maharashtra Revenue Tribunal had held that the said partition was bind ing. Therefore, in the appeal against the decision of the Tehsildar, the Deputy Collector following the said decision of the Revenue Tribunal, held the partition valid and al lowed the respondent 's application for eviction. The Revenue Tribunal, in revision, confirmed this order of the Deputy Collector. 67 The appellant preferred a writ petition before the High Court. It was, inter alia, contended before the High Court that: (1) the partition was contrary to the provisions of Hindu Law; and (2)even assuming that the partition deed of June 29, 1959 was a valid document, the same had to be ignored since it could not confer the title of ownership on the respondent transferee in view of the provisions of section 38(7) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The High Court however dis missed the petition holding that what was produced before the courts below was a family settlement. Allowing the appeal, this Court, HELD: (1) A partition of the property can only be among the parties who have a pre existing right to the property. Under the Hindu Law, a female, major or minor has no share in the ancestral property. A female is given a share either in the self acquired property of the husband or the father, or in the share of the husband or the father in the coparce nary property after the property is partitioned. There cannot, therefore, be a partition and hence a family settle ment with regard to the ancestral property so long as it is joint, in favour of either the wife or the daughter. [70C D] (2) The position that obtain under section 38(7) after the Amending Act of 1963, is that any transfer of land effected after 1st August 1953 whether by way of partition or otherwise, has no effect of conferring on the transferee a right to terminate the tenancy of the tenant who was a protected lessee and whose right as such protected lessee had come into existence before such transfer or partition. This amendment is admittedly retrospective in operation. [71G H; 72A] (3) The appellant was tenant since prior to 1st August 1953 and had also continued to be such tenant till April 1, 1961. Hence he became a statutory owner under section 46 of the Act on and from April 1, 1961. Any proceedings for evicting him on the ground that he was a tenant and, there fore, had fallen in arrears of rent could not have, there fore, been adopted in 1962. [72C D]

The respondent gave notice to the appellants terminating the lease of agricultural land situated within two miles of the limits of the Municipality and filed a suit for eviction. The suit was contested, inter alia, on the ground that under the provisions of the Bombay Tenancy Act, 1939, the defendants had acquired tenancy rights. The civil Judge, inter alia, held that the 1939 Act was repealed by the Bombay Tenancy and Agricultural Land Act, 1948, which did not apply to the suit land, as it was within two miles of the limits of the Surat Borough Municipality and decreed the suit. On appeal, the District Judge held that the 1948 Act applied to the Suit land and set aside the decree of the trial Court. In second appeal by the plaintiff, the High Court held that the suit land was within two miles of the limits of the Municipality and therefore, the 1948 Act did not apply to the suit land. On appeal by Special Leave the appellants contended that their rights under the 1939 Act were saved and preserved under section 89(2) of the 1948 Act with the result that the lease extended to 10 years under the 1939 Act was saved thereunder, and by reason of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952, which brought the suit land within the scope of the 1948 Act, their rights so preserved came to be governed by the provisions of he 1948 Act and, therefore, they could not be evicted except in the manner prescribed by the provisions of the Act. The respondent contended that the saving provision in section 89(2) of the 1948 Act operates only if there is no express provision to the contrary and that the saving of the appellant 's right would be otiose, as he could not enforce his right under the 1948 Act. Held:(i) Before the suit was disposed of, the 1952 Act came into force, and by reason of the extension of the 1948 Act to the suit land, the respondent could not evict the appellants except in the manner prescribed by the 1948 Act. (ii)The respondent 's contention must be rejected. There is an express provision found in section 88(1) of the 1948 Act, in as much as it says that the provisions of sections 1 to 87 will not apply to the area in question. (iii)As there was a right recognized by law there was a remedy and, therefore. in the absence of any special provisions indicating a 774 particular forum for enforcing a particular right the general law of the land would naturally take its course. The High Court, therefore, was wrong in holding that the appellants could not claim the benefit of the provisions of the 1948 Act. Sakharam (a) Bapusaheb Narayan Sanas vs Manikchand Motichand Shah ; relied on.

The appellant filed a suit for evicting his tenant Bhagwandas Kanu etc. after giving them a notice to quit. The Trial Court dismissed the suit but on appeal, the First Appellate Court passed a decree for eviction against the respondents. In second appeal before the High Court, the respondents assailed the validity of the notice to quit, on the ground that it did not conform with the requirements of section 106 of the Transfer of Property Act. The High Court allowed the appeal holding that the notice to quit did not clearly terminate the tenancy on the expiration of the, month of the tenancy, and was invalid. Allowing the appeal by special leave, the Court, HELD: A notice to quit must be construed ut res magis valeat quam pereat. It must not be read in a hyper critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it should be construed in a common sense, way. The notice to qui re quired the respondents to vacate "within the month of Octo ber 1962", otherwise they would be treated as trespassers from 1st November, 1962. This makes the intention of the authors of the notice clear that they were terminating the tenancy only with effect from the end of the month of October 1962 and not with effect from any earlier point of time during the currency of that month. Sidebotham vs Holland ; Harihar Banerji vs Ramsashi Roy 45 I.A. 222, applied.

307 and 308 of 1960. Petitions under article 32 of the Constitution of India; for enforcement of Fundamental Rights. Porus A. Mehta, J. B. Gagrat and G. Gopalakrishnan, for the petitioner. H. J. Umrigar, R. H. Dhebar and T. M, Sen, for the respondents. March 23. The Judgment of the Court was delivered by section K. DAS, J. These are two writ petitions in respect of two orders 'dated August 3, 1960, b which the Joint Chief Controller of Imports, Madras, cancelled two import licences, Nos. A 863296 and 836640 dated January 18, 1960, and February 2, 1960, respectively, granted in favour of the petitioner, Messrs. Sinha Govindji of Bangalore Road, Bellary, for the purpose of importing cellulose nitrate sheets of the value of Rs. 75,000 each for two licensing periods, April/September, '1959, and October/ March, 1960. The complaint of the petitioner firm is that respondents 1 and 2 have cancelled the licences in circumstances which amounted to a denial of its right to be given a reasonable opportunity of being heard, as provided by cl. 10 of the Imports (Control) Order, 1955, before the impugned 'orders were passed 542 and thus arbitrarily and without authority of law deprived the petitioner of its fundamental right to carry on its business under article 19 of the constitution. The point for decision is a short one and we need only state such facts as bear upon that point. The petitioner 's case is that the proprietor of the firm is a citizen of India carrying on a business of the manufacture of celluloid and plastic bangles, etc, at Bellary in the Mysore State. The petitioner was granted the two licences referred to above and thereafter entered into firm commitments for the import of cellulose sheets to the clause of Rs. 99,000. On March 4, 1960, the petitioner was surprised to receive two letters from the Assistant Controller of Imports, Madras, calling upon the petitioner to let him know the extent to which the licenses had been utilised and asking the petitioner not to enter into fresh commitments against the said licenses without specific and prior approval of the Controllers ' office. This led to some correspondence between the petitioner and the Control authorities, details whereof are not necessary for our purpose. On May 27, 1960, the petitioner received two notices, only one of which we need set out in full. It stated: "It is hereby notified that in exercise of the powers conferred by cl. 9 of the Imports (Control) Order, 1955, the Government of India, in the Minis. try of Commerce and Industry propose to cancel licence No. A 836640/60/AU/M dated the Second February, 1960, valued at Rs. 75,000 (Rupees Seventy five thousand only) for import of Cellulose Nitrate Sheets from the Soft Currency area except South Africa, granted by the Joint Chief Controller of Imports and Exports, Madras to Messrs. Sinha Govindji, No. 18, Bangalore Road, Bellary 2, unless sufficient cause against this is furnished to the Joint Chief Controller of Imports and Exports, Madras, within ten days of the date of issue of this notice, by the said Messrs. Sinha Govindji, No. 18, Bangalore Road, Bellary 2 or any Bank, or any other party who may be interested in it. In view of what is stated above, Messrs. Sinha 543 Govindji, Bellary or any Bank, or any other party who may be interested in the said licence No.836640/60/AU/M dated Second February, 1960, are hereby directed not to enter into any commit Departments against the said license and return it immediately to the Joint Chief Controller of Imports and Exports, Madras. (Sd.) J. K. Sarkar, Deputy Chief Controller of Imports and Exports. " The notices, be it noted, did not state on what grounds falling within cl. 9 of the Imports (Control) Order, 1955, it was proposed to cancel the licences of the petitioner. Clause 9 of the Control Order states four grounds for cancellation of a licence, and we may read the clause here omitting those grounds which are not relevant for our case: "9. Cancellation of Licences: The Central Government or any other officer authorised in this behalf may cancel any licence granted under this Order or otherwise render it ineffective: (a) if the licence has been granted through inadvertence or mistake or has been obtained by fraud or misrepresentation; (b) (c) (d) By a letter dated May 30, 1960, the petitioner referred to the earlier correspondence on the subject and said inter alia: "Now clause (9) of the Import Control Order, 1955, under which action is proposed to be taken envisages the cancellation of a licence on various grounds. Your notice does not disclose on which of these grounds the proposed action is sought to be taken. Without knowing on what ground the proposed cancellation is to be effected it is impos sible for me to show cause against it. I may, however, state that I have not done anything justifying the cancellation of the licence under the said Rule and that as far as I can see, there is no ground whatsoever for such cancellation. " 544 Then, on August 4, 1960, the petitioner received two orders dated the previous day by which the two licences in favour of the petitioner were cancelled. The orders stated (we are quoting only one of the orders which are similar in terms): "Whereas M/s. Sinha Govindji, Bangalore Road, Bellary or any bank or any other person have not come forward furnishing sufficient cause, against Notice No. 1/LCL/60/CDN(1) dt. 27 5 1960, proposing to cancel licence No. A 863296/60/AU/Mdt. 18 1 60, valued at Rs. 75,000 for the import of Cellulose Nitrate Sheets from the Soft Currency Area except South Africa granted to the said M/s. Sinha Govindji, Bangalore Road, Bellary, by the Joint Chief Controller of Imports and Exports, Madras, Government of India, in the Ministry of Commerce and Industry in exercise of the powers conferred by clause 9 of the Imports (Control) Order, 1955, hereby cancel the said licence No. A 863296/60/AU/M dt. 18 1 60 issued to the said M/s. Sinha Govindji, Bellary. " It will be noticed that the orders also did not state on what ground the licences were cancelled. The petitioner complained that the cancellation of the two licences led the Customs authorities to hold back the goods of the petitioner which had already arrived at port and were awaiting clearance, resulting in heavy demurrage, etc. ; but the real ground on which the petitioner challenges the two cancellation orders is that (to quote the words of the petition) "no real opportunity at all to show cause against the proposed cancellation was given to the petitioner in total disregard of the provisions of cl. 10 of the Imports (Control) Order, 1955". We may read here that clause. Applicant or licensee to be heard. No action shall be taken under Clauses 7, 8 or 9 unless the licensee/importer has been given a reasonable opportunity of being heard. " On behalf of the respondents it has been stated that after the issue of the two licences a letter dated February 16, 1960, was received from the Director, Small Industries Service Institute, Bangalore, to the 545 effect that the petitioner had no machinery and equipment to manufacture the relevant articles from the imported raw material. On receipt of this letter a joint investigation was held by the Assistant Director of Industries, Bell, try, and the Deputy Director, Small, Industries Service Institute, Hubli, and it was found at the time of inspection that the petitioner firm had no machinery and equipment at the premises, nor did they possess any municipal licence or factory licence. On July 2, 1960, the Chief Controller of Imports & Exports wrote to the petitioner giving the above information and asking the petitioner to show cause why further issue of licences should not be suspended under cl. 8 of the Imports (Control) Order, 1955. We quote below the relevant extracts from this letter: "Gentleman, I write to refer to your letter dated the 21st May, 1960, and 30th May, 1960, on the above subject, and to say that a joint investigation conducted by the Deputy Director, Small Industries Service Institute, Hubli, and Assistant Director of Industries, Government of Mysore, Bellary, revealed that at the time of inspection of your firm by them, no machinery and equipment existed in your premises and that you had no Municipal licences or Factory licence or Factory. In view of this, it is clear that you had obtained the Essentiality Certificate from the Director of Industries fraudulently and by misrepresentation of facts and thereafter obtained the licences in question by producing the said Certificate to the Joint Controller of Imports & Exports, Madras. The above action on your part directly contravenes the Import Trade Control Regulations, within the meaning of para. 6(vii) of Chapter V of the Import Trade Control Hand Book of Rules and Procedure, 1956, read with clause 8(b) of the Imports (Control) Order No. 17/55 dated the 7th December, 1955. In view of this, the request made by you in the letters under reference cannot be acceded to. 69 546 On the other hand, you are called upon, under clause 10 of the said Imports (Control) Order, 1955, to show cause, within 15 (fifteen) days from the date of receipt of this letter, as to why further issue of licences to you should not be suspended, under clause 8 of the said Imports (Control) Order No. 17/55 dated the 7th December, 1955, for contravening the Import Trade Control Regulations. If your reply does not reach the undersigned within the stipulated period it will be assumed that you have no defence to urge in your favour and this office will proceed to adjudicate action against you, without making any further reference to you. " The contention urged on behalf of the respondents is that the letter dated July 2, 1960, stated the necessary ground for the cancellation of the licences to the petitioner, and as the petitioner furnished no sufficient cause against cancellation, the orders of cancellation were made on August 3, 1960. The argument on behalf of the respondents is that the provisions of cl. 10 of the Imports (Control) Order, 1955, have been sufficiently complied with by reason of what was stated in the letter of July 2, 1960. On a careful consideration of the facts and circumstances as stated in the affidavits of the parties we have come to the conclusion that the petitioner has had no reasonable opportunity of being heard before the cancellation orders were made on August 3, 1960. The cancellation orders are, therefore, bad and must be quashed. Our reasons are the following. It is not disputed that the notice dated May 27, 1960, did not state any ground for the proposed cancellation; it merely referred to cl. 9 without stating on which of the four grounds mentioned therein it was proposed to take action. Naturally, the petitioner stated in its letter dated May 30, 1960, that without knowing on what ground the proposed cancellation was to be made, the petitioner firm was not in a position to show cause. So far there is no dispute between the parties, and it is not seriously urged by the respondents that if the notice stood by itself, it could be held to have given the petitioner a reasonable 547 opportunity of being heard within the meaning of cl. 10. The respondents, however, rely on the letter dated July 2, 1960, in support of their contention that the petitioner has had a reasonable opportunity of showing cause against the cancellation of the two licences. On behalf of the petitioner it has been submitted, not without justification, that the letter dated July 2, 1960, related to a different matter, viz., the suspension of the grant of further licences under cl. 8 for which also a reasonable opportunity to be heard had to be given to the petitioner under cl. 10. In its operative part the letter stated: "you are called upon to show cause, within 15 days from the date of this letter, as to why further issue of licences to you should not be suspended under cl. 8". It, therefore, related to proposed action under cl. 8. The respondents, have, however, pointed out that the subject matter of the letter as indicated therein referred to the notices dated May 27, 1960, for cancellation of the licences and it also referred to the earlier, correspondence on the same subject, viz., the petitioner 's letters dated May 21, 1960, and May 30, 1960; therefore, the, contention is that the petitioner must Know as a result of the reference to the subject matter and earlier correspondence that the grounds given in the letter related to proposed action both under cl. 8 and cl. 9, even though the operative portion related to cl. 8 only. It is true that the contents of the letter dated July 2, 1960, should be considered from the point of view of substance rather than that of technical rules of construction of statutory instruments. So considered, it is difficult to hold that the letter asked the petitioner to show cause against cancellation of its licences, parti cularly in the light of the contents of the subsequent letters of the Department which would be referred to presently. Even if we assume that it did so, what is the position? Within 10 days of the receipt of the letter (which was received by the petitioner on July 5, 1960) the petitioner 's solicitor asked for a copy of the joint investigation proceeding and the report submitted as a result thereof The letter also asked for 548 other relevant documents in order to enable the petitioner to show cause. It said that the petitioner would show cause as soon as the relevant documents were received and it also said that 6. personal hearing would be asked for and prayed that in the meantime no further action should be taken. No reply was given by the respondents to the aforesaid letter of the petitioner 's solicitor till August 6, 1960, that is, three days after the cancellation orders had been made. The petitioner was not given a copy of the report of the investigation till as much later date, nor was any in formation given to the petitioner that the copy would not be available and the petitioner must show cause at once. As a matter of fact the petitioner was told nothing in reply to the letter dated July 15, 1960, till three days after the cancellation orders had been made. 'the cancellation orders blandly stated that no cause had been shown, when in fact the petitioner had specifically asked for an opportunity to show cause. By their letter dated August 6, 1960, the respondents said that the matter would be considered on receipt of a letter of authority from the solicitor in proper form and on stamped paper, without stating that in the meantime cancellation order, had been made. without waiting for any explanation. on August 10, 1960, the solicitor submitted a written authority, saying that it was unnecessary to (,all for it arid that the two licences had been cancelled arbitrarily and without giving the petitioner an opportunity of being heard. The correspondence, then continued with regard to the proposed action under cl. 8 and the petitioner challenged the correctness of the report of the joint investigation proceeding on many essential particulars including the alleged absence of machinery arid equipment. It, is not necessary to enter into details of that correspondence, because the proposed action under cl. 8 is not the subject matter of the present proceeding. It is enough to state that from what happened after the receipt of the letter dated July 2, 1960, it is abundantly clear that the petitioner has bad no real opportunity of being heard with regard to the ground alleged in the letter, before the cancellation orders were made 549 on August 3, 1960. There was, in our opinion, a clear violation of the requirement of cl. 10, which embodies the principles of natural justice. The cancellation orders are, therefore, bad and must be quashed. We allow the writ petitions and order accordingly. The petitioner is entitled to its costs; there will be one rearing fee. Petitions allowed.

The petitioner who was carrying on the business of the manufacture of celluloid and plastic bangles etc. was granted two licences dated January 18, 1960, and February 2, 1060, for the purpose of importing cellulose nitrate sheets for two licensing periods, April/September, 1950, and October/March, 1960, On getting information that the petitioner had no machinery or equipment at the premises nor possessed any municipal licence or factory licence, the Imports and Exports authorities issued a notice dated May 27. 1960, to the petitioner to the effect that the Government of India proposed to cancel the licences granted to him, in exercise of the powers conferred by cl. 9 of the Imports (Control) Order, 1955, unless sufficient cause against this was furnished within ten days of the date of issue of the notice. The petitioner replied that as the notice did not disclose on which of the grounds specified in cl. 9 the proposed action was sought to be taken, it was not possible to show cause against it and that in any case he had not done anything justifying the cancellation of the licences under the said rule. On July 2, 1060, the Chief Controller of Imports and Exports wrote to the petitioner giving the information received as aforesaid and said: "In view of this it is clear that you had obtained the Essentiality Certificate from the Director of Industries fraudulently and by misrepresentation of facts and thereafter obtained the licences in question. . You are called upon under cl. 10 of the Imports (Control) Order, 1955, to show cause, within fifteen days from the date of receipt of this letter, as to why further issue of licences to you should not be suspended, under cl. 8 of the said Imports (Control) Order, 1955, for contravening the Imports Trade Control Regulations. . On August 4, 1960, the petitioner received two orders dated August 3, 1961, by which the two licences in favour of the petitioner were cancelled. The petitioner challenged the validity of the aforesaid orders on the grounds, inter alia, that no real opportunity at all to show cause against the proposed cancellation was given to him in total disregard of the provisions of cl. :co of the Imports (Control) 541 Order, 1955 which required that "No action shall be taken under cls. 7, 8 or 9 unless the licensee. has been given a reasonable opportunity of being heard", and that the cancellation of the licences arbitrarily deprived the petitioner of his fundamental right to carry on his business under article 19 of the Depi Constitution of India. The correspondence between the petitioner, and the Import authorities showed that after the receipt of the letter dated July 2, 1960, the petitioner had no real opportunity of being heard with regard to the ground alleged in the letter, before the cancellation orders were made on August 3, 1960. Held, that on the facts of the case, there was a. clear violation of the requirements of cl. 10 of the Imports (Control) Order 1955, which "embodied the principles of natural justice, and that the orders dated August 3, 1960, canceling the licences granted to the petitioner, were bad and must be quashed.

In the year 1943 the Divisional Superintendent, East Indian Railway placed certain purchase orders with the appellant for the supply of foodgrains for the employees of the East Indian Railway. The orders were not expressed to be made in the name of the Governor General and were not "executed on behalf of the Governor General as required by section 175 (3) of the Government of India Act, 1935. They were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant. Some deliveries of foodgrain s were made under these orders and were accepted and paid for by the Railway Administration. But the Railway Administration declined to accept further deliveries of foodgrains. The appellant sold the balance of foodgrains under the purchase orders and filed a suit to recover the difference between the price realised by sale and the contract price. The respondent resisted the suit inter alia on the ground that the contracts were not binding on it. Held, that the contracts were not binding on the respondent and it was not liable for damages for breach of the contracts. Under s 175 (3) of the Government of India Act, 1935, as it stood at the relevant time, the contracts had: (a) to be expressed to be made by the Governor General, (b) to be executed on behalf of the Governor General and (F) to be executed by officers duly appointed in that behalf and in such mariner as the Governor General directed or authorised. The 881 authority to a person to execute contracts may be conferred not only by rules expressly trained and by formal notifications issued in this behalf but may also be specially conferred. The evidence in the case showed that such authority was specially conferred upon the Divisional Superintendent. But the contracts were not expressed to be made by the Governor General and were not executed on his behalf The provisions of section 175(3) were mandatory. The object of enacting these provisions was that the State should not be saddled with liability for unauthorised contracts and hence it was provided that the contracts trust show on their face that they were made by the Governor General and executed on his behalf in the manner prescribed by the person authorised. State of Bihar vs M/s. Karam Chand Thapar and Bros., Ltd. ; , followed. Liverpool Borough Bank vs Turner, ; , Municipal Corporation of Bombay vs Secretary of State, I. L. R. , Kessoram Poddar and Co., vs Secretary of State for India, I. L. R. section C. Mitra and Co., vs Governor General of India in Council, I.L.R. , Secretary of State vs Yadavgir Dharamgir, I. L. R. , Secretary of State vs G.T. Sarin and Co., 1. L. R. , U. I '. Government vs Lal Nanhoo Mal Gupta, A. 1. R. (1960) All. 420, and Devi Prasad Sri Krishna Prasad Ltd. vs Secretary of State, I. L. R. (1941) All. 741, referred to. section K. Sen vs Provincial P. W. D., State of Bihar, A. 1. R. (1960) Pat., Chatturbhui Vithaldas Jasani vs Moreshwar Prashram, ; ,J. K. Gas Plant Mfg., Co. (Rampur) Ltd. vs King Emperor, , Moreshwar Pangarkar vs State of Bombay, ; , State of Bombay vs Purshottam Jog Naik, ; and State of U.P. vs Manbodhan Lal Srivastava, (1958) section C. R. 533, distinguished.

The petitioner who was a, registered dealer under the Orissa Sales Tax Act, 1947, was carrying on the business of purchasing and reselling castor seeds, etc., in the State of Orissa. Under a declaration given by him for the purpose of obtaining his registration certificate the goods purchased by him in Orissa were to be resold in that State. He purchased certain commodities inside the State but in contravention of his declaration sold, the goods to dealers outside the State. The Sales Tax Officer included in the taxable turnover of the petitioner the purchase made by him inside the State in accordance with section 5(2)(a)(II) of the Act. The contention of the petitioner was that the purchase was in course of inter State trade and was exempted under article 286(2) of the Constitution of India. Held, that the transaction of sale which has been taxed was wholly inside the State of Orissa and was distinct and sepa rate from the sale made by the purchaser to dealers outside the State. The former transaction was taxable under section 5(2)(a)(II) of the Act while the latter was exempted under article 286(2) of the Constitution. Messrs. Mohanlal Hargovind Das vs The State of Madhya Pradesh, ; , distinguished. In order that a sale or purchase might be inter State, it is essential that there must be transport of goods from one State 315 to another under the contract of sale or purchase. A purchase made inside a State, for sale outside the State cannot itself be held to be in the course of inter State trade and the imposition of tax thereon is not repugnant to article 286(2) of the Constitution. Bengal Immunity Company Limited vs The State of Bihar, and State of Travancore Cochin vs Shanmugha Vilas Cashew Nut Factory; , , followed.

These petitions by the holder of Kavalappara Sthanam, his wife, daughters and soil challenged the constitutional validity of the Madras Marumakkathayam (Removal of Doubts) Act, 1955 passed by the Madras Legislature soon after the Privy Council had declared the properties in possession of the Sthanee to be Sthanam properties in which the members of the tarwad had not interest. Section 2 Of the Act, which contained the substantive provision, was as follows: " 2. Notwithstanding any decision of Court, any sthanam in respect of which: (a) there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarwad, or (b) the members of the tarwad have been receiving main. tenance from the properties purporting to be sthanam properties as of right, or in pursuance of a custom or otherwise, or (c)there had at any time been a vacancy caused by there being, no male member of the tarwad eligible to succeed to the Sthanam, 888 shall be deemed to be and shall be deemed always to have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which .he provisions of the Madras Marumakkathayam Act, 1932 (Mad. XXII of 1933), shall apply. " The question for decision was whether the impugned Act infringed the fundamental rights of the petitioners guaranteed by articles 4, 19(1)(f) and 31 of the Constitution. Held (per Sinha, C. J., Subba Rao and Shah, JJ.) that the three tests laid down by the Act were contrary to the well settled principles of Marumakkathayam Law with regard to which there could be no scope for doubt and as such not only not germane but extraneous to the object it sought to achieve. They were a device to deprive the sthanam of its properties and vest them in the tarwad and as such directly hit by article 19(1)(f) and could not be saved by article 19(5). Assuming that the Sthanam properties were held in janmam right and as such were estates within the meaning of article 31A, the impugned Act was immune from challenge. That Article, properly construed, envisages agrarian reform and provides for the acquisition, extinguishment or modification of proprietary and various other kinds of subordinate rights in a tenure called the estate solely for that purpose and must be limited to it. Although it may not be permissible to refer to the statement of objects and reasons of its amendment for purposes of construction, it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time and purpose underlying the amendment. Aswini Kumar Ghose vs Arabinda Bose, [19531 S.C.R. 1, con sidered. There is no substance in the argument that since the impugned Act seeks to regulate the rights of the Sthanee and the junior members of the tarwad inter se it falls within by cl. (2)(b) of article 31A. That clause has to be read with cl. (1)(a) of the Article and since the impugned Act does not contemplate any agrarian reform or seek to regulate the rights inter se between landlords and tenants or modify or extinguish any of the rights appertaining janmam right, leaving all its characteristics intact, it does not come within the purview of article 31A of the Constitution. Sri Ram Ram Narain vs State of Bombay, [1959] SUPP. 1 S.C.R. 489, and Atma Ram vs State of Punjab, [1959] SUPP. 1 S.C.R. 748, referred to. Fundamental rights have a transcendental position in the Constitution and before an Article embodying a fundamental right can be construed to exclude another every attempt should be made to harmonize them and not until it is found impossible to do so, can one be made to yield to the other. Barring such exceptional cases, any law that infringes any of the fundamental rights must be void. 889 The word 'law ' in article 31(1) must mean a valid law, and such a law must satisfy two tests, (1) that the legislature must be competent to enact it and (2) that it must not infringe any fundamental rights. A law that deprives a citizen of his property must, therefore, be invalid if it infringes article 19(1)(f) of the Constitution. Deep Chand vs State Of U. P., [1959] SUPP. (2) S.C.R. 8, and Basheshway Nath vs Commissioner of Income tax, Delhi, [1959] Supp. 1 S.C.R. 528, referred to. Article 31 Of the Constitution, since its amendment by the Constitution (Fourth Amendment) Act, 1955, is no longer a selfcontained Article providing for a subject different from that dealt with by article 19, but deals with two different subjects, CIS. (2) and (2A) dealing with acquisition and requisition and cl. (1) with deprivation of property by authority of law, and can no longer be construed on the analogy of article 2 1 so as to exclude the operation of article 19. The State of West Bengal vs Subodh Gopal Bose, [1954] S.C.R. 587, A. K. Gopalan vs The State of Madras, ; , referred to. State of Bombay vs Bhanji Munji and Any., [1955] 1 S.C.R. 777, held inapplicable. Nor does article 31(1) deal with police power. Although such power, as understood in America, is no arbitrary power divorced from social control and public good, there can be no need of importing such a doctrine into the Indian Constitution. The word 'law ' used by article 31(1) indicates its limitation and refers back to article 19 and any law made under article 31(1) can be sustained only if the restrictions it imposes are reasonable and in the interest of the general public. The Constitution does not confer on the Indian Parliament the same power which the Parliament of England possesses and while it does contemplate a welfare State, that has to be brought about within its frame work of the Constitution itself. The correct approach should, therefore, be first to ascertain the fundamental right and then to see whether the law infringes that right. If ex facie it does so, it has to stand the test of article 19(5). In certain circumstances, however, deprivation of fundamental right to property may also amount to a reasonable restriction under the Article. Narendra Kumar vs The Union of India, [196O] 2 S.C.R. 375, referred to. Individual proprietary rights being ordinarily inviolable unless a clear case is made out for restricting them, there must be a harmonious balancing between the fundamental rights declared by article 19(1) and social control permitted by article 19(5). It is implicit in the nature of restrictions that no inflexible standard can be laid down and each case must be decided on its own facts. But the restrictions must not be arbitrary and must have a reasonable relation to the object sought to be achieved and shall be in the interest of the general public. 890 State of Madras vs V. G. Rao, ; , Henry Webster vs Peter Cooper, ; , and The Citizens ' Savings and Loan Association and Cleaveland, Ohio vs Topeka City, ; , referred to. Although the redress of a real and genuine grievance of a section of the community may be in public interest, it is impossible to hold that the impugned legislation was either justified or in such public interest. Iswari Prosad vs N. R. Sen, A.I.R. 1952 Cal. 273, held in applicable. Marumakkathayam Law is a body of customs and usages that have received judicial recognition, and is fundamentally different from Hindu Law, being a matriarchal system. The family, called tarwad, consists of all the descendants of one common ancestor. It consists of a mother and her male and female children and the children of those female children and so on. Only the senior most male member can attain the sthanam, which is a position of dignity with specific properties attached to it. When he does so and becomes the Sthanee he ceases to have any interest in the tarwad properties. Occasionally a female member also becomes the Sthanee. Like a Hindu widow or an impartible estate holder the Sthanee has an absolute interest in the income of the Sthanam properties or acquisitions therefrom. A member of the tarwad has no right to maintenance from out of the Sthanam properties nor can such property be converted into tarwad property by the grant of such maintenance by custom or otherwise or intermingling of the Sthanam properties with the tarwad properties by the Sthanee. His position approximates to that of a member separated from a Hindu family and there can be no scope for the application of the doctrine of blending. Like the Sthanee who ceases to have any present proprietary interest in the tarwad, the members of the tarwad also can have no present proprietary interest in the sthanam property. They continue to be blood relations with a contingent right of succession to each others ' property that is no more than a spies successions. The right of a subsequently born male member of the tarwad to succeed to the Sthanam and its property is judicially recognised. Case law reviewed. Per Imam and Sarkar, JJ. The impugned Act is protected by article 31A and is not open to question in the ground that it violates articles 14, 19(1)(f) and 31(1) Of the Constitution. There is no basis for the contention that article 31(1)(a) contemplates a law relating to agrarian reform only. The Article makes no mention of any such reform and there can be no doubt that under it a janmam right may be acquired, extinguished or modified whether the land held in such right is agricultural or not. It is not permissible to refer to the objects and reasons stated in the Bills, by which the Acts amending article 31A of the Constitution were introduced, for the construction of the statute and, therefore, the word 'law ' in article 31A(1) cannot be read in relation to sub cl. (a) only as a law intended to achieve agrarian 891 reform on the basis of the supposed object of the Legislature in enacting article 31A. Aswini Kumar Ghose vs Arabinda Bose, ; referred to. It is not correct to say that the impugned Act does not effect any modification of janmam rights and therefore it does not come within article 31A. When the Article speaks of modification of janmam rights, it does not speak of such rights in the abstract but contemplates the modification of such rights held by a person. It would be as much modification of janmam rights, if such rights held by one person are directed to be held by a number of persons jointly, as when the incidents of such rights are altered. Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 S.C.R. 489, and Atma Ram vs State of Punjab, [1959] Supp. 1 S.C.R. 748, relied on. It is not correct to say that the Legislature in giving the provisions of the impugned Act retrospective operation or in providing that they should prevail notwithstanding any decision of the court to the contrary, was acting judicially and not in a legislative capacity and that the Act was on that ground invalid. The rule obtaining in America that legislative action cannot retract on past controversies and reverse decisions of courts and the relevant American decisions can have no application in India. Piare Dusadh 's case, , referred to.

The petitioner 's husband transferred certain property to the petitioner. A notice under section 7, , was issued to the petitioner and to her husband and the husband was declared an evacuee and the property was declared as evacuee property by the Assistant Custodian. An appeal to the Deputy Custodian and thereafter a revision petition to the Custodian General by the petitioner were dismissed. The petitioner applied to the Supreme Court under article 32 of the Constitution contending that her fundamental rights under 64 506 articles 19(1)(f) and 31 were infringed by the order of the Assistant Custodian and prayed for the restoration of the property. Held, that the petition under article 32 was incompetent as no question of violation of any fundamental right arose in the case. The decision of an authority of competent jurisdiction had negatived the existence of the right alleged by the petitioner and unless that decision was held to be a nullity or could be otherwise got rid of, the petitioner could not complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner was dependent on whether her husband was an evacuee and whether his property was evacuee property. The decision on that question had become final and no question of lack of jurisdiction was involved. Sahibzada Saiyed Muhammed Amirabbas Abbasi vs The State of Madhya Bharat, ; , applied.

In view of article 286 (1) (a) of the Constitution, as it stood at the relevant time, the sales by the appellants (registered dealers) outside the State of Bombay were not exigible to tax. The appellants.were directed to refund amounts collected by them from their purchasers in respect of these sales by way of tax, failing which the amounts would be forfeited under section 12A(4) of the Bombay Sales Tax Act. The appellants filed a writ petition in the High Court to restrain the respondents from taking action against them under section 12A(4), The High Court dismissed the petition. In appeal, this Court, Held: section 12A(4) of the Bombay Sales Tax Act was void being violative of article 19(1)(f) of the Constitution. Prima facie the appellants were entitled to get the amount ordered. to be refunded to them. It was for the respondents to establish that the same was liable to be forfeited. Even according to the respondents that amount could be forfeited only as a measure of penalty. Under our jurisprudence no one can be penalised without a proper enquiry. [740 E F]. The impugned provision which provided forfeiture of the amount in the hands of the dealers, did not lay down any procedure for ascertaining whether in fact the dealer concerned hid collected any amount by way of tax from his purchasers outside the State and if so what that amount was. Neither section 12A(4) nor any rule framed under the Act contemplated any enquiry,, much less a reasonable enquiry in which the person complained of could plead and prove his case or satisfy authorities that their assumptions were either wholly or wholly wrong. This section did not contemplate adjudication nor provide for making any order. Hence, it was doubtful whether any appeal could be filed against a demand made under that section under section 21 (740 G H; 741 E]. Abdul Quadar and Co. vs Sales Tax Officer, Hyderabad , Dr. N. B. Khare vs State of 'Delhi. ; State of Madras vs V. G. Rao, (19521 S.C.R. 597 followed. Ram Gopal vs Sales Tax Officer, Surat and another, 16 S.T.C. 1005 disapproved,

The petitions challenged the constitutional validity of the Bombay Tenancy and Agricultural lands (Amendment) Act, 1956, (1) ; 62 490 (Bom. XIII of 1956) which, in further amending the Bombay Tenancy and Agricultural Lands Act, 1948 (Bom. LXVII of 1948), ;Ought to distribute the ownership and control of agricultural lands in implementation of the Directive principles of State policy laid down by articles 38 and 39 of the Constitution. The impugned Act sought to distribut equitably the lands between the landholders and the tenants, except where the landholder required the same for cultivation by himself, by way of compulsory _Purchase of all surplus lands by tenants in possession thereof with effect from April 1, 1957, called the 'tiller 's day '. The basic idea underlying the Act was to prevent concentration of agricultural lands in the hands of the landholders. The Act thus, being a legislation in respect of rights in and over land, affected the relation between landlord and tenant and provided for the transfer and alienation of agricultural lands. The petitioners, who were landholders as defined by section 2(9) of the Act contended that (1) the impugned legislation was beyond the competence of the State Legislature, (2) that, not being protected by article 31A, of the Constitution, it infringed articles 14, 19 and 31 of the Constitution and (3) that it was a piece of colourable legislation vitiated in part by excessive delegation of legislative power to the State. On behalf of the respondent it was urged that the impugned legislation fell within Entry 18 in List 11 Of the Seventh Schedule to the Constitution, that 'provided for the extinguishment or modification of rights to estates and was as such protected by article 31A of the Constitution and that there was no excessive delegation of legislative power. Held, that it was well settled that the heads of legislation specified in Entry 18 in List 11 of the Seventh Schedule to the Constitution should not be construed in a narrow and pedantic sense but should be given a large and liberal interpretation. There could, therefore, be no doubt that the impugned Act fell within the purview of Entry 18 in List 11 of the Seventh Schedule to the Constitution and the plea of legislative incompetence must fail. British Coal Corporation vs The King, ; United Provinces v . Atiqa Begum, and Navinchandra Mafatlal vs The Commissioner of Income tax, Bombay City, [1955] 1 S.C.R. 829, relied on. There could be no doubt that the Bombay Land Revenue Code, 1879, was the existing law relating to land tenures in force in the State of Bombay within the meaning of article 31A(2)(a) of the Constitution and the word 'estate ' as defined by section 2(5) Of the Code clearly applied not only to lands held by the various tenure holders of alienated lands but also to land holders and occupants of unalienated lands. There was no ambiguity in that definition and, therefore, no justification for putting a narrower construction on that word so as to mean the land holders of the former category alone and not of the latter; even if there was any, the wider meaning of the word was the one to be adopted in the context of the objective of the Act. 491 Case law discussed. The word 'landholder ' as defined in section 2(9) of the Act also made no distinction between alienated and unalienated lands and showed that the interest of such a landholder fell within the definition of 'estate ' contained in section 2(5) of the Code. There was no warrant for the proposition that extinguishment or modification of any rights in estates as contemplated by article 31A(1)(a) of the Constitution must mean only what happened in the process of acquisition of any estate or of any rights therein by the State. The language of the Article was clear and unambiguous and showed that it treated the two concepts as distinct and different from each other. Sections 32 to 32R of the impugned Act clearly contemplated the vesting of the title in the tenure on the titter 's day, defeasible only on certain specified contingencies. They were designed to bring about an extinguishment or in any event a modification of the landlord 's rights in the estate within the meaning of article 31A(1)(a) of the Constitution. The impugned Act, therefore, was not vulnerable as being violative of Arts.14, 19 and 31 of the Constitution. It would not be correct to contend that the sections merely contemplated a suspension of the landholders ' right and not their extinguishment. Thakur Raghubir Singh vs Court of Wards, Ajmer, ; , held inapplicable. Where the Legislature settled the policy and broad principles of the legislation, there could be no bar against leaving matters of detail to be fixed by the executive and such delegation of power could not vitiate the enactment. In the instant case, since the Legislature had laid down the policy of the Act in the preamble, enunciated the broad principles in sections 5 and 6 and fixed the four criteria in section 7 itself, the last of which had necessarily to be read ejusdem generis with the others, it was not correct to say that the impugned Act by section 7 had conferred uncontrolled power on the State Government to vary the ceiling area or the economic holding or that section 7 was vitiated by an excessive delegation of legislative power to the State. Parshram Damodhar vs State of Bombay, A.I.R. 1957 Bom. 257, disapproved. Dr. N. B. Khare vs The State of Delhi, ; ; The State of West Bengal vs Anwar Ali Saykar, [1952] S.C.R. 284 and Pannalal Binjraj vs Union of India, [1957] S.C.R. 233, referred to.

Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, as amended from time to time provided that on the 1st day of April, 1957 styled as the "tiller 's day" every tenant shall subject to other provisions of the next succeeding sections be deemed to have purchased from his landlord free from all encumbrance subsisting thereon, on the said date the land held by him as a tenant if other conditions of the section are satisfied. By operation of this law, one Janardhan, the father of the respondent, became the "deemed purchaser" effective from April 1,1957, of the land bearing survey No. 1052 and F measuring 16 acres situated within the revenue limits of village Sonai Taluka Nawasa, District Ahmednagar which belonged to Tarachand Chopra. Subsequent to this admitted fact, several incidents took place which have led to the present appeal raising the question of the legal effect of the several steps taken by different persons; ignorant of the factum of Janardhan having become the deemed purchaser". They are (a) Landlord Tarachand died on August 12,1959, after two and a quarter years after Janardhan became the statutory purchaser; (ii) Tarachand executed a will, before his death, bequeathing the suit land to Ashoklal Gugale, a minor; (iii) the revenue authorities, who must be aware of the provisions of the Act, wrongly mutated the name of Ashoklal in the revenue records as the landlord in terms of the will; (iv) in spite of the mandatory duty imposed upon the Agricultural Lands Tribunal, under Section 32G, to issue notice to all tenants who under section 32 are deemed to have purchased the lands, all landlords of such lands and all other persons interested to appear before 238 it for the determination of the price of the land which is the subject matter of compulsory purchase, strangely accepted the plea for the postponement of the inquiry under section 32F of the Act and later again commenced the proceedings in the year 1967 and concluded the proceedings by its order dated July 13 1967 repeating the jurisdictional errors; (v) in the interregnum, Ashoklal through his next friend commenced proceedings in case No. 36 of 1967 in the Court of Tenancy Aval Karkoon for the recovery of the possession; (vi) the Tenancy Aval Karkoon, not only entertained the petition, but also got recorded two statements, on 5.10.1967, from Janardhan, "the deemed purchaser" to the effect that he had no objection to handing over the possession of the land to the landlord as he was old and could not cultivate the land personally and another from the present respondent to the same effect even though in the life time of his father Janardhan, he had no title to the land involved in the dispute, and, thereafter made the order dated October 6, 1967 exacting Janardhan from the land; (vii) this wholly null and void order enabled the minor landlord to sell the land by a registered deed on November 13, 1967 to one Haribhav and another, the former later transferred his interest in favour of some of the petitioners before the High Court; (viii) On October 6, 1971, Janardhan moved the Tribunal under section 32F of the Act to the effect that as the landlord Ashoklal had attained majority he was entitled to purchase the land; (ix) the Tribunal started the proceedings under section 32G and after bringing the present respondent on record due to the demise of Janardhan on November 29, 1976, went into the matter in depth, examined all previous orders and came to the conclusion that Janardhan having become the "deemed purchaser. ' all subsequent. proceedings were null and void, which was affirmed by tho Assistant Collector, the Maharashtra Revenue Tribunal and the High Court later; (x) a parallel proceeding initiated by the respondent for the recovery of possession was decided in his favour by all Courts including the High Court Dismissing the appeals by the special leave, the Court ^ HELD: 1:1 on the tiller 's day, the landlord 's interest in the land gets extinguished and simultaneously by a statutory sale without anything more by the parties, the extinguished title of the landlord is kindled or created in the tenant. That very moment landlord tenant relationship as understood ill common law or Transfer of Property Act comes to an end, the link and chain is broken. The absent non cultivating landlord ceases to have that ownership element on the land and the cultivating tenant, the tiller of the soil becomes the owner thereof. This is unquestionable, the landlord from the date of statutory sale is only entitled to receive the purchase price as determined by the Tribunal under section 32G. In other words, landlord ceases to be landlord and the tenant becomes the owner of the land and comes in direct contact with the state. Without any act of transfer inter vivos the title of the landlord is extinguished and is created simultaneously in the tenant making the tenant the deemed purchaser. It is an admitted position that on April 1, 1957 Tarachand was the landlord and Janardhan was the tenant Tarachand landlord was under no disability as envisaged by Section 32F. Therefore or April 1, 1957 Janardhan became deemed purchaser. [244 C G] 239 Sri Ram Ram Narain Medhi vs State of Bombay, [1959] Supp. I S.C.R. 489 @ 518 followed. If, in the instant case., Janardhan became the deemed purchaser on tillers ' day, the relationship of landlord and tenant between Tarachand and Janardhan came to be extinguished and no right could be claimed either by Tarachand or anyone claiming through him such as Ashoklal or the present purchasers on the footing that they are the owners of the land on or after April 1, 1957. [244 G H, 245 A] 2:1. Section 32F of the Bombay Tenancy and Agricultural Lands Act, 1948, has no application to the facts of the ease. Section 32F postponed the date of compulsory purchase by the tenant where the landlord is a minor or a widow or a person subject to mental or physical disability on the tillers ' day. Section 32F has an overriding effect over Section 32 as it opens with a non obstante clause. The combined effect of Section 32F and 32 would show that there the landlord is under no disability as envisaged by Section 32F the tenant of such landlord by operation of law would become the deemed purchaser but where the landlord is of a class or category as set out in section 32F such as a minor, a widow or a person subject to any mental or physical disability, the date o, compulsory sale would be postponed as therein provided. Now, if Tarachand the landlord was under no disability and he was alive on April 1, 1957 and he was the owner, his tenant Janardhan became the deemed purchaser. [245 A D] 2:2. If Janardhan became the deemed purchaser on April 1, 1957 all subsequent proceedings in which the Tribunal held that the date of purchase was postponed because the recorded owner Ashoklal was a minor were without jurisdiction. The Tribunal had absolutely no jurisdiction to proceed on the footing that date of sale was postponed. It is neither an incorrect order nor an erroneous order as was sought to be made out but Tribunal lacked tho jurisdiction to proceed under section 32F because when the proceedings under Section 32F were commenced, Janardhan had long since become the deemed purchaser. Therefore all subsequent proceedings were ab initio void and without jurisdiction. [245 D F] 2:3. When a Tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted with regard to the jurisdictional fact, its decision is a nullity and can be set up in collateral proceeding. The Tribunal clutched at a jurisdiction not vested in it and in such a situation it can not be disputed that the Tribunal lacked the jurisdiction to entertain any proceeding purporting to be between landlord and tenant on the erroneous assumption that tenant was still a tenant though he had long since become the deemed purchaser, The tenant has ceased to be a tenant much prior to the orders passed by the Tribunal on April 24, 1961 and July 13, 1967 holding that the date of compulsory purchase was postponed. The compulsory purchase by the operation of law had taken place as early as April 1, 1957 and that legal position cannot be wished away. [245 F H, 246 A Bl 240 3:1 When several orders passed by different authorities are wholly null and void and hence non est, such orders cannot thwart subsequent proceedings. The nullity can be set up in subsequent proceedings. The plea of estoppel by conduct also cannot be allowed to be raised, since a measure of agrarian reform cannot be permitted to be defeated by such devious means of the landlords trying to take advantage of any statement made contrary to their legally protected interest, in the absence of legal literacy and by such jugglery of orders of low level revenue officers who hardly knew what they were doing. [246 C H, 247 G] 3:2. In the instant case, even assuming Janardhan relinquished his right as a tenant, even then Ashoklal cannot recover possession as the land would be at the disposal of the Collector under Section 32P. Further, the posthaste steps taken by Ashoklal and others in transferring the lands to several others speak of malafides of the landlord. [246E F]

Appeal No. 89 of 1960. Appeal from the judgment and order dated April 12, 1957, of the Mysore High Court in Writ Petition No. 15 of 1956. 557, M. C. Setalvad, Attorney General for India, V. L. Narasimhamoorty, section N. Andley, J. section Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants. R. Gopalakrishnan and T. M. Sen, for the respondents. March 24. The Judgment of the Court was delivered by SHAH, J. With a view to enable him to assess cotton cess payable by the appellants under the Indian Cotton Cess Act, 1923 hereinafter called the Act the Deputy Commissioner, District Chitradurga, Mysore State purporting to exercise powers under section 6 of the Act called upon the managing agents of the appellants by letter dated January 13, 1956, to submit in the prescribed form a statement showing the total quantity of cotton consumed or processed in the factory. 'The appellants declined to carry out the requisition and filed a petition in the High Court of Mysore for a writ of mandamus, prohibition or other appropriate writ, direction or order restraining the Deputy Commissioner, Chitradurga and the State of Mysore from "collecting assessments under the Indian Cotton Cess; Act XIV of 1923" in enforcement of the order dated January 13, 1956. The sole ground urged in support of the petition was that the appellants were bound to furnish returns under the Act to the Collector who alone could assess the cess, and the Deputy Commissioner not being a "Collector" within the meaning of the Act and not being an officer appointed by the Central Government to perform the duties of the Collector under the Act, the demand for returns was "unconstitutional". The High Court rejected the petition and against that order, this appeal is preferred with certificate of fitness granted by the High Court. The area in which the mill of the appellants is situ. ate was originally part of the Indian State of Mysore. The State of Mysore became a Part B State within the Union of India on the promulgation of the Constitution on January 26, 1950. The Act was one of the many enactments of the Indian Legislature applied 588 to the State of Mysore by the "Part B States Laws Act" 3 of 1951. The Act provides for the levy of a cess on cotton and for effectuating that purpose imposes by section 6 a duty upon the owner of a mill to submit to the Collector monthly returns of cotton consumed or processed in the mill. The authority to assess cess is by section 7 of the Act vested in the "Collector" which expression in the Act means "in reference to cotton consumed in a mill, the Collector of the district in which the mill is situated or any other officer appointed by the Central Government to perform the duties of a Collector under this Act". The powers of the Collector under the Act can therefore be exercised by the Collector of the district in which the mill is situate or by the officer appointed by the Central Government to perform the duties of a Collector. It is common ground that the Central Government has not issued an order appointing the Deputy Commissioners in the Mysore area to exercise powers under the Act. The power to assess cotton ceases in the Mysore State area can therefore be exercised by the Collector and no other officer. The expression "Collector of the district" which is a component of the first part of the definition is not defined in the Act. But the X of 1897 defines "Collector" as meaning "in a Presidency town, the Collector of Calcutta, Madras or Bombay as the case may be, and elsewhere the Chief Officer in charge of the revenue administration of a district". The revenue administration of a district under the Mysore Land Revenue Code is entrusted to the Deputy Commissioner and he is the chief officer in charge of the revenue administration of a district. The Deputy Commissioner is therefore a Collector within the meaning of the . Counsel for the appellants however contends that the X of 1897 was not extended by the Part B States Laws Act to the State of Mysore and therefore the definition of "Collector" under the cannot be requisitioned in aid to interpret the expression "Collector" used in the Act. But the argument proceeds upon a fallacy as to the 559 true nature of the . By section 3 of that Act, in all Central Acts and Regulations made, after the commencement of the , ' unless there is anything repugnant in the subject or context, the various expressions therein set out shall have the meanings ascribed to them by that Act. The effect of section 3 is to incorporate it as it were as an interpretation section in all Central Acts and Regulations made after the commencement of the . Whenever the Central Act or Regulation made after March 11, 1897, is enacted, the becomes statutorily a part thereof and by its own force it applies to the interpretation of every such enactment. Its vitality does not depend upon any territorial extension. Existence of a definition of the expression "Collector" in the Act in section 2(a) is not necessarily indicative of an intention that the is not to apply to the interpretation of that expression used in that Act. The first part of section 2, cl. (a) of the Act is in truth not a definition at all: it merely states that the Collector of the district in which the mill is situate is the Collector for the purpose,% of the Act. For determining who the Collector is, one has to go to the . It is said that bodily importing the definition of "Collector" in the into section 2(a) of the Act results in tautology, because by the definition in the a Collector (outside the Presidency towns) is an officer in charge of the revenue administration of a district. But by the definition in the , the quality of the power and the duties of the officer concerned are indicated whereas by the use of the expression "of the district" in the definition of Collector in section 2(a) of the Act, the officer in charge of the revenue administration of the district within whose area the mill is situate is indicated. There is in our judgment no tautology, and no ground for not applying the definition of Collector in the to the interpretation of the Act. The appeal fails and is dismissed with costs. Appeal dismissed.

The appellants declined to carry out the requisition by the Deputy Commissioner to submit certain returns on the ground that tinder the Indian Cotton Cess Act, 1923, which Act Se came applicable to the State of Mysore by the Part B States Laws Act, 1951, the Collector alone could assess the cess and the Deputy Commissioner not being a "Collector" within the meaning of the Act and not being an officer appointed by the Central Government to perform the duties of the Collector under the Act, the demand for return was "unconstitutional". The case of the appellant was that the , was not extended by the Part B States Laws Act, 1951, to the State of Mysore, and, therefore, the definition of "Collector" under the could not be requisitioned in aid to interpret the expression "Collector" used in the Act. Held, that the effect of section 3 of the , was to incorporate it as it were an interpretation section in all the Central Acts and Regulations made after the commencement of the . Whenever a Central Act or Regulation made after March II, 1897, was enacted, the became statutorily a part thereof and by its own force applied to the interpretation of every such enactment. Its vitality did not depend upon any territorial extension. Section 2(a) of the Indian Cotton Cess Act, 1923, does not really give the definition of "Collector", and for determining who the Collector under the Act is, one has to go to the .

The respondents filed a writ petition in the High Court of Calcutta against an order made under Clause 8 B of the Import Control order 1955, in respect of a consignment of beef tallow which arrived at the Calcutta Port. A Single Judge issued a rule and granted an interim order restraining the Union of India and the Chief Controller of Imports and Exports from filing any criminal complaint against the respondent firm or its Directors and also a direction to permit the respondents to re export the consignment of tallow. An application was made by the Union of India to vacate the interim order. In the meanwhile the respondents sent letters and telegrams to the department intimating that the interim order of the High Court had not been obeyed, and threatening action for contempt of Court. An application to commit the Chief Controller of Imports and Exports, and others for contempt of court was filed by the company. Over ruling the request made on behalf of the Department to vacate the interim order, the court issued a rule in the application for contempt and directed the Department officials to appear in person. Being aggrieved by the order, the Department filed a Special Leave Petition against the interim order and the rule for contempt. Allowing the appeal, vacating the interim order and quashing the rule for contempt of Court; ^ HELD: 1. Writ petitions are often deliberately filed in distant High Courts, as part of a manoeuvre in a legal battle, so as to render it difficult for 343 the officials at Delhi to move applications to vacate stay where it becomes necessary to file such applications. An inevitable result of the filing of writ petitions elsewhere than at the place where the concerned offices and the relevant records are located is to delay prompt return and contest. [345B C, A] In the instant case the writ petition was filed in the Calcutta High Court when the office of the company is in the State of Punjab and all the principal respondents are in Delhi. A statutory order such as the one under Clause 8 B of the Import Control Order purports to be made in the public interest and unless there are even stronger grounds of public interest an ex parte interim order will not be justified. The only appropriate order to make in such cases is to issue notice to the respondents and make it returnable within a short period. This should particularly be so where the offices of the principal respondents and relevant records lie outside the ordinary jurisdiction of the Court. To grant interim relief straight away and leave it to the respondents to have the interim order vacated may jeopardise the public interest. [346G 347A] 3. If an interim order is once made by a court, parties employ every device and tactic to ward off the final hearing of the application. It is therefore, necessary for the courts to be circumspect in the matter of granting interim relief, more particularly so where the interim relief is directed against. orders or actions of public officials acting in discharge of their public duty and in exercise of statutory powers. [347B] In the instant case, no interim relief should have been granted by the High Court. The interim order is of a drastic character with a great potential for mischief and has the effect of practically allowing the writ petition at the stage of admission without hearing the opposite parties. [347C, 346D] 4. The application to commit the authorities for contempt of court appears to be a device to exact licences from them. [349B] In the instant case, the stay of the operation of the 'abeyance ' order merely meant that the writ petitioners were entitled to have their applications disposed of by the concerned authorities. The High Court not having set any limit of time for the disposal of the applications, it was not for the writ petitioners to impose a time limit and demand that their applications should be disposed of forthwith. If the writ petitioners were aggrieved by the failure of the authorities to dispose of their applications expeditiously, it was open to them to seek a further direction from the court fixing a limit of time within which the applications were to be disposed of. [348G 349A] 344

The petitioners in Writ Petition 106 of 1980 are working in Group IV Services in various departments of the Government of Andhra Pradesh. Most of them were appointed after 1974, under the General Rule 10(a)(i)(l) on a purely temporary basis due to the existence of a ban on direct recruitment. After the lifting of the ban partially special qualifying tests were held for regularising their services in 1974 and 1976. As they did not put in two years of qualifying service as on 1.1.73 and 1.1.76 respectively, they could not take the said examinations. In 1976 there was another test conducted by the Public Service Commission wherein about 82000 candidates appeared. The petitioners did not appear in the said test. Among the several candidates who were appointed sometimes hl 1977 and 1978 were Respondents 18 to 108. The petitioners were, however, granted complete exemption from appearing at any examination by GOMS 646 dated 14.7.1979 and the posts held by them were withdrawn from the purview of the Public Service Commission. Earlier to the said Notification Government issued a memo No. 1806/ Ser B/78 2 Gad dated 25.1.79 proposing to fix inter se seniority between the Public Service Commission candidates who qualified in 1976 and the temporary employees including the petitioners who did not appear at the qualifying test. Being aggrieved, the Service Commission candidates including respondents 18 to 108 in the Writ Petition, filed R.P. No. 447/79 before the State Administrative Tribunal whose decision went in favour of the Service Commission candidates. Hence the Civil Appeal No. 2735/86 by the State of Andhra Pradesh. In both the 508 Writ Petitions and the appeal the question related to the computation of seniority of the Service Commission candidates and the temporary employees whose services were regularised by GOMS 647 dated 14.9.79 after exempting them from passing the qualifying examination etc. by GOMS 646 dated 14.9.1979. Dismissing the petition and the appeal, the Court, ^ HELD: l. The petitioners cannot claim that their seniority should be computed from the respective dates of their appointments after April 1974. The petitioners were not appointed on a regular basis, but by way of stop gap arrangements to be replaced by the appointment of qualified candidates. The petitioners failed to avail themselves of the opportunity of qualifying themselves for regular appointments by appearing at the special qualifying test held in 1976, although they. were eligible for the test. The Government order being GOMS No. 647 dated September 14, 1979 does not support their claim of seniority from the respective dates of their appointments after April 1974. Under the said GOMS No. 647, the services of the employees belonging to Group IV services would be regularised from the date of last regular appointment in that category or from the date of temporary appointment, whichever is later and subject to the decision of the Andhra Pradesh Administrative Tribunal. The Andhra Pradesh Administrative Tribunal held that the appointments of the Public Service Commission candidates were regular appointments. The appointments of the Public Service Commission candidates are, therefore, the last regular appointments as contemplated by GOMS No. 647. In view of the said decision of the Andhra Pradesh administrative Tribunal and the directions contained in GOMS No. 647, the services of the petitioners will be regularised subsequent to the respective dates of appointments of the respondents Nos. 18 to 108 or the other employees in Group IV services, who were appointed pursuant to their being successful in the special qualifying test held by the Public Service Commission in 1976. The petitioners have not challenged the said GOMS No. 647; on the contrary, they have placed reliance upon the same and have also prayed for the implementation of the same. [512B G]

In the year 1943 the Divisional Superintendent, East Indian Railway placed certain purchase orders with the appellant for the supply of foodgrains for the employees of the East Indian Railway. The orders were not expressed to be made in the name of the Governor General and were not "executed on behalf of the Governor General as required by section 175 (3) of the Government of India Act, 1935. They were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant. Some deliveries of foodgrain s were made under these orders and were accepted and paid for by the Railway Administration. But the Railway Administration declined to accept further deliveries of foodgrains. The appellant sold the balance of foodgrains under the purchase orders and filed a suit to recover the difference between the price realised by sale and the contract price. The respondent resisted the suit inter alia on the ground that the contracts were not binding on it. Held, that the contracts were not binding on the respondent and it was not liable for damages for breach of the contracts. Under s 175 (3) of the Government of India Act, 1935, as it stood at the relevant time, the contracts had: (a) to be expressed to be made by the Governor General, (b) to be executed on behalf of the Governor General and (F) to be executed by officers duly appointed in that behalf and in such mariner as the Governor General directed or authorised. The 881 authority to a person to execute contracts may be conferred not only by rules expressly trained and by formal notifications issued in this behalf but may also be specially conferred. The evidence in the case showed that such authority was specially conferred upon the Divisional Superintendent. But the contracts were not expressed to be made by the Governor General and were not executed on his behalf The provisions of section 175(3) were mandatory. The object of enacting these provisions was that the State should not be saddled with liability for unauthorised contracts and hence it was provided that the contracts trust show on their face that they were made by the Governor General and executed on his behalf in the manner prescribed by the person authorised. State of Bihar vs M/s. Karam Chand Thapar and Bros., Ltd. ; , followed. Liverpool Borough Bank vs Turner, ; , Municipal Corporation of Bombay vs Secretary of State, I. L. R. , Kessoram Poddar and Co., vs Secretary of State for India, I. L. R. section C. Mitra and Co., vs Governor General of India in Council, I.L.R. , Secretary of State vs Yadavgir Dharamgir, I. L. R. , Secretary of State vs G.T. Sarin and Co., 1. L. R. , U. I '. Government vs Lal Nanhoo Mal Gupta, A. 1. R. (1960) All. 420, and Devi Prasad Sri Krishna Prasad Ltd. vs Secretary of State, I. L. R. (1941) All. 741, referred to. section K. Sen vs Provincial P. W. D., State of Bihar, A. 1. R. (1960) Pat., Chatturbhui Vithaldas Jasani vs Moreshwar Prashram, ; ,J. K. Gas Plant Mfg., Co. (Rampur) Ltd. vs King Emperor, , Moreshwar Pangarkar vs State of Bombay, ; , State of Bombay vs Purshottam Jog Naik, ; and State of U.P. vs Manbodhan Lal Srivastava, (1958) section C. R. 533, distinguished.

The respondent entered service of the State of Mysore in 1935 as instructor of Tailoring in the Department of Public Instruction. In 1949 he went on deputation in the Polytechnic Institute at Devangere. One K. N. Chetty who was far junior to respondent was also sent on deputation to another similar institution in 1949. K. N. Chetty was absorbed from the date he went or deputation in the new post but respondent was not so absorbed. In 1955, for no fault of the respondent, Government passed orders reverting him to his parent department. In 1956, respondent, was again posted on deputation. The intervening period between his reversion and re posting was treated as leave. On reorganisation of State respondent 's services were allotted to the new State of Mysore. The respondent made several representations and stated that he was discriminated against and treated differently from K. N. Chetty who was junior to him in the parent department. The Public Service Commission found that respondent 's case was on all fours with that of Chetty and that he deserved similar treatment. The Commission found that the temporary reversion of the respondent lo his parent department was not justified. The Government in 1964 ordered the absorption of the respondent in the Department of Technical Education from the date of the order subject to the conditions that he would not be entitled to the benefit of revision of scales of pay that had been effected in 1957 and 1961 and that he would not be given any more financial benefit or revision of pay or addition increment for his previous service. The respondent filed a Writ Petition challenging these condition and praying for a direction that he should be absorbed in the Department of Technical Education from the date of his initial appointment in 1949, and granted consequential benefits or the revision of pay scales etc. The appellant opposed the Writ Petition on the grounds that the respondent had no legal right to be absorbed in the Department of Technical, Education with effect from. a particular interior date or to be given the revised pay scales applicable to those borne permanently in the service of that department. Chetty 's case was sought to be distinguished on the ground that he was absorbed in the year 1951 as against the respondent 's absorption in 1964 and that there was a break in the service of the respondent. The High Court allowed the Writ Petition and issued a direction that absorption of the respondent in the Department of Technical Education be given effect from 1949 when he initially assumed duty on deputation. The High Court also declared that he would be entitled to all consequential benefits. The appellant in an appeal by Special Leave relied on the judgment of this Hon 'ble Court in the case of K. V. Rajalakshmiah Setty vs State of Mysore [1967] 2 S.C.I. 70. Dismissing the appeal, ^ HELD: In the present case it appears that the State had evolved a principle pursuant to which all the employees who came on deputation from the departments to the Polytechnic excepting the respondent, were absorbed permanently in the Department of Technical Education with effect from the dates on which they came on deputation. Even Chetty who was admittedly junior to the respondent and was identically situated was accorded the same treatment. It is an undisputed fact that 6 other employees who were similarly situated were absorbed from the date on which they initially joined duty after deputation to the Polytechnic. [259 A C, 260 D] 256 There was no justification whatever to depart from this principle of policy in the case of the respondent. His reversion was not ordered owing to any fault on his part. The said reversion could not be treated as a break in service since it was treated as leave, nor did it amount to reduction in rank. 60 F H] The High Court was therefore, justified in granting the relief, it did to the respondent. 261 Bl 'Rajalakshmiah Setty vs State of Mysore, ; , distinguished.

% In a writ petition, the petitioner challenged the price fixation on the ground; that the State Government had not taken into consideration the guidelines in built in sub section 3C of section 3 of the , that the levy order was unreasonable or excessive restriction on the fundamental rights guaranteed under Articles 19(1)(g) and 14 of the Constitution, and that the levy was a colourable exercise of the power as the State Government sold the levy sugar by public auction realising large profit. Dismissing the Writ Petition, ^ HELD: 1.1 The Court does not act like a Chartered Accountant nor acts like an Income Tax officer. The Court is not concerned with any individual case of any particular problem. The Court only examines whether the price determined was with due regard to considerations provided by the statute, and whether extraneous matters have been excluded from determination. [580D E] Union of India vs Cynamide India Ltd. AIR 1987 Sept. SC 180 ' at 1805. followed. 1.2 The primary consideration in the fixation of price would be 578 the interest of consumers rather than that of producers. [581F] Since the petitioners in the instant case, are allowed to sell freely at any rate they like, the remaining 50% of the Sugar (after excluding the 50% which they have to give for levy) as also the produce by the second and third process, the loss if any caused to the petitioners would be minimal. [581Gl New India Sugar Works vs State of Uttar Pradesh & Ors., ; , relied. 1.3 It is clear from the Preamble, that the primary object of the was to control production, supply, and distribution of essential commodities, and to make such commodities available at a reasonable price. The exercise provided under the Act was intended ultimately to serve the interest of consumers. It is fundamental in the entire scheme of the Act. But then, the interest of the industry as a whole cannot be left out. It is also required to be borne in mind. The levy price of sugar should ensure reasonable return to the industry. That is one of the guidelines provided under sub section 3C of section 3 of the Act. But that does not mean that the interest of producers should outweigh the interest of consumers. It would be tilting the balance too much. [582C F] 1.4 There is no colourable exercise of power. There was every justification for the sale by public auction. The petitioner and some other producers delivered inferior quality of Khandsari, which was found to be unacceptable to consumers at Fair Price Shops. The State officers accordingly reported to the Government, which issued instructions to distribute the levy sugar liberally through permits for marriages and religious functions. The consumers, however, could not come forward. The Government then directed the disposal of levy sugar by public auction. It was not with a view to earn profit, although incidentally the Government made some profit. The levy sugar was brought to public sale only to prevent deterioration when the consumers refused to accept it. [583A C] The Panipat Co operative Sugar mills vs Union of India [197312 SCR 860 and Anakapalle Coop. & Industrial Society Ltd. vs Union of India & Ors. , ; , referred to.

In a writ petition filed under article 226 of the Constitu tion impugning his dismissal from service, the respondent contended that since he had not been given a reasonable opportunity of meeting the allegations against him, his dismissal was void. writ petition was dismissed. Thereupon, the respondent flied a suit in a civil court challenging his dismissal on the ground, among others, that since he had been appointed by the Inspector General of Po lice, his dismissal by the Deputy Inspector General of Police was wrong. The State took the plea that the suit was barred by res judicata. Dismissing the suit, the trial court held that it was not barred by res judicata. The first appellate court dismissed the respondent 's appeal. Purporting to follow a line of decisions of this Court, the High Court held that only that issue between the parties would be res judicata which was raised in the earlier writ petition and was decided by the High Court after contest and since in this case the respondent did not raise in the earlier writ petition the plea of competence of the Deputy Inspector General of Police to dismiss him. the parties were never at issue on it and that the High Court never consid ered and decided this issue in the writ petition. On the question of invoking the principle of constructive res judicata by a party to the subsequent suit on the ground that the matter might or ought to have been raised in the earlier proceedings, the High Court held that this question was left open by the Supreme Court in Gulabchand Chhotalal Parikh vs State of Bombay ; , and allowed the respondent 's appeal. Allowing the States appeal to this Court. HELD: The High Court was wrong in its view because the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in Devi Lal Modi vs Sales Tax Officer Ratlam and Others ; it was not necessary to reiterate it in Gulabchand 's case as it did not arise for consideration in that case. The clarificatory observation in Gulabchand 's case was misunderstood by the High Court in observing that the matter had been left open by this Court. The doctrine of res judicata is based on two theo ries: (i) the finality and conclusiveness of judicial deci sions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be pro tected from multiplication of litigation. [430 D] 2. (a) In certain cases, the same set of facts may give rise to two or more causes of action. In such cases res judicata is not confined to the issues which the Court is actually asked to decide but covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. This rule has sometimes been referred to as constructive res judicata which is an aspect or amplification of the general principle. [431 A] (b) Section 11 of the Code of Civil Procedure, with its six explanations, covers almost the whole field, but the section has, in terms, no application to a petition for the issue of a high prerogative writ. [431 D] (c) Although in the Amalgamated Coalfields Ltd. and others vs Janapada Sabha, ; this Court held that constructive res judicata being a special and artifi cial form of res judicata should not generally be applied to writ petitions, in Devilat Modi 's this Court held that if the doctrine of constructive 429 res judicata was not applied to writ proceedings, it would be open to a party to take one proceeding after another and urge new grounds every time, which was plainly inconsistent with considerations of public policy. The principle of constructive res judicata was, therefore, held applicable to writ petitions as well. [433 G & 434 D] 3. The High Court missed the significance of these deci sions and relied upon L. Jankirama lyer and 'Others vs P.M. Nilakanta lyer and Others [1962] Supp. 1 S.C.R. 206 which had no bearing on the controversy. In Gulabchand 's case, this Court observed that it did not consider it necessary to examine whether the principle of constructive res judicata could be invoked by a party to the subsequent suit oft the ground that a matter which might or ought to have been raised in the earlier proceeding but was not so raised therein could be raised again relying on which the High COurt concluded that the question was left open by this Court. This in turn led the High Court to hold that the principle of resjudicata could not be made applicable to a writ petition. [435 E F] In the instant case, the respondent did not raise the plea that he could not be dismissed by the Deputy Inspector General of Police. This was an important plea which was within his knowledge and could well have been taken in the writ petition. Instead he raised the plea that he was not afforded a reasonable opportunity of meeting the case in the departmental inquiry. It was therefore not permissible for him to take in the subsequent suit the plea that he had been dismissed by an authority subordinate to that by which he was appointed. That was clearly barred by the principle of constructive res judicata and the High Court erred in taking a contrary view. [436 A B]

The appellant State issued a notification under section 4 of the West Bengal Estates Acquisition Act, 1953 covering the land comprised in the tea garden of the respondent company. The Revenue Officer issued notices to the respondent company initiating proceedings for assessment of rent. The Company objected stating that it was not an intermediary within the meaning of the Act and since its tea estate comprised of free hold land the Revenue Officer had no jurisdiction to assess the rent under Section 42(2) of the Act. The Revenue Officer rejected the contention and fixed the rent at Rs.2,375.94 per year. On revision preferred by the State, the Revenue Officer determined the rent at Rs.8,765.24 per year. The Company preferred appeals before the Tribunal. The appeals were dismissed in default and the restoration applications were also rejected. Thereafter, the Company preferred applications before the High Court under Section 115 CPC read with Article 227 of the Constitution for restoration of the two appeals, and obtained stay of the operation of the Revenue Officer 's order. During the pendency of the cases, the Additional Deputy Commissioner informed the respondent that inspite of the repeated reminders the company had not executed the long term lease for 30 years on prepayment of the requisite number of instalments or rent and cess. The respondent company replied pointing out that the High Court had granted the stay order and therefore the matter stood stayed till the disposal of the said cases. Thereafter, the Collector served upon the Company, a notice under section 106 of the Transfer of Property Act, 880 1882 determining the tenancy of the company In respect of the tea garden on the expiry of the specified date. The company was required to hand over the vacant and peaceful possession of the tea garden. In reply to the said notice, the company stated that in view of the stay order granted by the High Court no further proceedings be taken. Thereafter the Collector took over the possession of the tea garden. The applications before the High Court were still pending. However, aggrieved by the order of the Collector taking over its tea garden, the Respondent preferred a Writ Petition before the High Court Allowing the writ petition, the High Court directed the appellant State Government and other authorities to deliver the possession of the tea garden to the Company within a month. Aggrieved by the High Court 's order, the State as also the West Bengal Tea Development Corporation to whom the possession of the tea garden is transferred by the State, preferred appeals, before this Court. Disposing of the appeals, this Court, HELD:1. The Revenue Officer had initially determined the rent at the rate of Rs.2,371.94 per year, but the same was not accepted by the Government and on a representation made by the State Government, the Revenue Officer had refixed the rent at Rs.8,769.24 per year by order dated 22.8.1968. The Company had challenged the rent refixed at Rs. 8.769.24 and the High Court had stayed the order of the Revenue Officer fixing the rent at the rate of Rs.8,769.24. In view of these circumstances, it was necessary on the part of the Collector to have passed an order of summary settlement as contemplated under Form I Schedule F of the West Bengal Estates Acquisition Rules, 1954. The High Court was, therefore, right in holding that the Collector had no jurisdiction to terminate the tenancy on the ground of non payment of rent for not executing a lease deed inasmuch as the Collector had not mentioned in the notice terminating the tenancy under Section 106 of the Transfer of Property Act, that he was prepared to accept the rent at the rate of Rs. 2,375.94 per year as determined initially by the Revenue Officer. [886 F H; 887 A,B] 2.In order to do complete justice between the parties, it is proper that the respondent Company should be given the prosession of the tea garden provided the Company pays the entire arrears of rent from 27.7.1965to 21.4.1981, the date when the Company was dispossessed, 881 calculated at the rate of Rs. 8,769.24 per year after adjusting any amount already paid, within three months. There would be no necessity for the Collector to make any order of summary settlement and a long term lease should be executed as contemplated under sub section (3) of Section 6 of the West Bengal Estates Acquisition Act, 1953. As soon as the arrears of rent are paid by the Company and a lease deed is executed, the Company should be handed over the possession of the tea garden. In case any increase in the amount of rent is permissible under the law due to lapse of time, the State Government would be free to take the same into consideration while granting the long term lease. [887 B D]

22 of 1960. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. H.J. Umrigar and B. P. Maheshwari, for the petitioner. A.C. Mitra, B. Das and P. K. Bose, for the respondents Nos. 1 and 2. P. K. Mukherjee, for respondent No. 3. 1960, December 9. The Judgment of Kapur, Gajendragadkar and Wanchoo, JJ., was delivered by Wanchoo, J., and that of Sinha, C.J., and Subba Rao, J., was delivered by Subba Rao, J. WANCHOO, J. This petition under article 32 of the Constitution challenges the constitutionality of section 39 of the Calcutta Police Act, No. IV of 1866, (hereinafter called the Act). The facts necessary for our purpose are these. On August 11, 1954, the petitioner entered into an agreement with one Haripada Bhowmick, who is respondent No. 3 with respect to an eating house named 'Kalpatoru Cafeteria ', situate in No. 2 Chowranghee Road, Calcutta. The petitioner was appointed a contractor by this agreement and was given the exclusive use and occupation of the said eating house upon certain terms and conditions. A licence has to be taken out with respect to an eating house under section 39 of the Act. It appears that originally the licence was in the name of Bhowmick, and one of the conditions of the licence was that the eating house should not be sublet 139 without permission of the Commissioner of Police (hereinafter referred to as the Commissioner). On the date of the agreement, Bhowmick held a licence for the eating house, which was to expire on March 31, 1955. It is said that under the agreement the licence was to remain in the name of Bhowmick while the petitioner was to carry on the business as a contractor. The petitioner carried on the business from after the date of the agreement and no application for a fresh licence was made by him before March 31, 1955, when the licence in the name of Bhowmick was to expire. It was only on August 8, 1955, that an application for licence was made by the petitioner on behalf and in the name of Bhowmick, though the business was continued to be run by him all the time after March 31, 1955. It appears that the application made in the name of Bhowmick was rejected on December 27, 1956; but in the meantime Bhowmick was prosecuted on September 10, 1955, for running the eating house without a licence and was fined on December 12, 1955. Thereafter a notice was issued to Bhowmick on September 7, 1956, to show cause why his application for licence should not be refused inasmuch as he had not applied in time and violated the condition of the licence by sub letting the eating house to the petitioner. Thereafter the petitioner applied on September 21, 1956, for the issue of a licence in his own name. It may be mentioned that in the meantime there had been disputes between Bhowmick and the petitioner and a suit had been filed by Bhowmick against the petitioner in October 1956 in that connection. It may also be mentioned that though the petitioner applied for the first time on September 21, 1956, for licence he had already been prosecuted in October, 1955, for keeping an eating house without a licence and convicted in November 1955. The application made by the petitioner on September 21, 1956, was eventually rejected on March 30, 1958, though in the meantime the petitioner was all along continuing the business of the eating house without having obtained a licence. After the rejection of his application the petitioner applied to the High 140 Court under article 226 of the Constitution challenging the constitutionality of section 39 and also challenging the order of the Commissioner rejecting his licence on various grounds. This application was dismissed on August 7, 1958. Thereupon the petitioner went up in appeal to a Division Bench of the High Court which was disposed of on March 4, 1959. The Division Bench held section 39 to be constitutional. It further held that as extraneous matters had been taken into account in rejecting the application of the petitioner for a licence the rejection was not in accordance with law. However, as the period of one year for which a licence is valid under section 39 had expired in September 1957, and the judgment was being delivered in March 1959, the appeal was dismissed on the ground that application could not be considered in 1959. Thereupon the petitioner made another application to the Commissioner on March 30, 1959, for the period from April 1, 1959 to March 31, 1960. During all this time the petitioner was carrying on his business as a keeper of the eating house without a licence. This application was found defective and another application was made on May 14, 1959. In the meantime, the petitioner again applied to the High Court on or about May 8, 1959, under article 226 of the Constitution in order to compel the Commissioner to issue him a licence or in the alternative to compel him not to prosecute him for keeping an eating house without a licence and for such other orders as the High Court might deem fit to pass. It may be mentioned that day to day prosecution of the petitioner had begun from February 1956 under section 40 of the Act for continuing to keep an eating house without a licence. This writ application filed in the High Court was withdrawn by the petitioner on May 13, 1959, as his application to the Commissioner of March 30, was defective. On May 30, 1959, the Commissioner rejected the application of the petitioner for a licence on the ground that his antecedents and his present conduct showed that he would not keep good behavior and further that he would not be able to prevent drunkenness or disorder among the persons frequenting or using the eating 141 house ' The petitioner 's complaint is that he was not heard before the order rejecting his application was passed. Then on June 15, 1959, the petitioner again applied under article 226 of the Constitution to the High Court against the rejection of his application on May 30. On February 11, 1960, the High Court allowed the petitioner to withdraw the application with liberty to move such application as he may be advised before, this Court, in case such liberty was necessary. Thereafter the petitioner moved this Court by his present application on February 15, 1960. His main contention before us is that section 39 of the Act confers naked and uncanalised powers on the Commissioner to grant or refuse a licence and that no criteria have been laid down anywhere in the Act to guide the discretion of the Commissioner. Further, no opportunity is provided to an applicant for a licence to be heard either orally or in writing before passing orders on an application for licence; in consequence, the Commissioner has been given completely arbitrary powers either to grant or to refuse a licence and this amounts to an unreasonable restriction on the fundamental right of the petitioner to carry on the trade of eating house keeper. Besides this attack on the constitutionality of section 39 the petitioner also contends that the order is mala fide and should be struck down on this ground. There are some other grounds in the petition but they have not been pressed before us and it will not be necessary to consider them. The first question therefore that falls for consideration is whether section 39 of the Act is a reasonable restriction within the meaning of article 19(6) on the fundamental right to practise any profession or to carry on any occupation, trade or business contained in article 19 (1)(g). 39 is in these terms: "The Commissioner of Police, may, at his discretion, from time to time, grant licences to the keepers of such houses or places of public resort and entertainment as aforesaid for which no licence as is specified in the Bengal Excise Act, 1909, is required upon such conditions, to be inserted in every such 142 licence, as he, with the sanction of the said State Government from time to time shall order, for securing the good behaviour of the keepers of the said houses or places of public resort or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the same; and the said licences may be granted by the said Commissioner, for any time not exceeding one year. " Learned counsel for the petitioner contends that the language of section 39 shows that an absolute discretion; untrammelled by any considerations, is conferred on the Commissioner by this section and there is nothing either in the section or anywhere in the Act to guide the discretion of the Commissioner in the matter of granting such licences. Therefore, according to learned counsel, the power conferred on the Commissioner is arbitrary and unguided and such power is necessarily to be struck down on the ground that it cannot be a reasonable restriction on the fundamental right to carry on trade. There is no doubt that if the section empowers the Commissioner to grant or refuse a licence without any criteria to guide him, it would be an unreasonable restriction on the right to carry on trade. We have therefore to see whether there is any guidance either in the section or in the Act to regulate the exercise of discretion of the Commissioner in the matter of granting such licences. In this connection it must be remembered that the Act was passed in 1866 when there were no fundamental rights and we cannot expect that meticulousness of language which should be found in statutes passed after January 26, 1950. It may also be mentioned that the Act replaced two earlier Acts, namely, Act XIII of 1856 and XLVIII of 1860. The Act of 1860 also contained provisions for licences for eating houses in sections II and 12 thereof, though the language of those sections was somewhat different. 11 laid down that in the towns of Calcutta, Madras and Bombay no eating house shall be kept without licence and provided for a penalty for the same. 12 then laid down that the Commissioner shall from time to time grant licences to 143 keepers of such houses upon conditions for securing the good behaviour of the keepers of the said houses and for the prevention of drunkenness and disorder among the persons frequenting or using the same. The language of section 39, however, is different inasmuch as it provides that the Commissioner may at his discretion from time to time grant licences. The Act of 1860 was interpreted by the Bombay High Court in Rustom J. Irani vs H. Kennedy (1) as giving no discretion to the Commissioner to refuse a licence if the person applying for the licence was willing to fulfil the conditions imposed thereunder. In the case of Calcutta, however, section 39 made a change in the language contained in the earlier Act giving discretion to the Commissioner in the matter of grant of licences. The question therefore is whether the word "discretion" introduced by section 39 means an absolute and unguided discretion and would therefore now become an unreasonable restriction on the fundamental right of a citizen to carry on the trade of keeping an eating house. There is no doubt, as we have already indicated, that the section does not say as many of the provisions of laws passed after January 26, 1950, do that the Commissioner would grant licence on certain specified considerations. The contention on behalf of the petitioner is that the first part of section 39 confers an absolute discretion on the Commissioner to grant or to refuse a licence just as he pleases and that the second part of the section merely provides for certain conditions to be imposed in case the Commissioner pleases to grant a licence. We are however of opinion that when we are judging a law passed in 1866 to decide whether it satisfies the test of constitutionality based on article 19(1)(g) and article 19(6), we should take the section as a whole and see whether on a fair reading of the section it can be said that there is no guidance for the Commissioner in the matter of granting or refusing licences and his power is arbitrary. If such guidance can be found on a fair reading of the section, there would be no reason for striking it down simply because it has not been worded in a manner which (1) Bom. 144 would show immediately that considerations arising from the provisions of article 19(1)(g) and article 19(6) were in mind naturally those considerations could not be in the mind of the legislature in 1866. We have therefore to see whether an Act passed before the Constitution came into force can be reasonably and fairly read as containing guidance in the matter of licensing, as in this case. If it can be fairly and reasonably read to contain guidance it should not be struck down. If, on the other hand, on a fair and reasonable construction of the section as a whole, we come to the conclusion that there is no guidance in it and the discretion vested in the Commissioner is absolute and arbitrary it will have be struck down. What then does the section provide? It certainly gives powers to the Commissioner to grant licences at his discretion. Those words, however, by themselves do not necessarily mean that the Commissioner has the power to act arbitrarily and grant licences where he pleases and refuse where he does not please to do so. The section provides further that the licence has to be granted upon certain conditions and those conditions have to satisfy two objects, namely, (i) securing of the good behaviour of the keepers of the said houses or places of public resort and entertainment and (ii) the prevention of drunkenness and disorder among the persons frequenting or using the same. Of course, it is implicit in the section that a licence will only be granted to a person who is the keeper of an eating house. We cannot read the section as laying down that the discretion is absolute and that the im. posing of conditions for the aforesaid two objects only arises after that absolute discretion has been exercised in favour of the grant of licences. We see no unfairness or unreasonableness in reading the section to mean that the Commissioner shall satisfy himself (i) that the person applying for a licence is the keeper of an eating house, meaning thereby that he has a place where he can carry on the business or trade and that he actually and effectively has control and possession of that place, (ii) that the keeper is a person of good behaviour so that the eating house may not become 145 a resort of criminals and persons of ill repute, and (iii) that the keeper is in a position to prevent drunkenness and disorder among those who come to the eating house. This section appears in the Police Act, the purpose of which is to maintain law and order and that is why we find that the two objects to be secured when granting licences are the good behaviour of the keeper himself and the prevention of drunkenness and disorder among those who frequent the eating house. It seems therefore to us that section 39 clearly provides that the Commissioner will use his discretion in deciding whether the person applying for a licence is in actual and effective control and possession of the place where the eating house is to be kept and is thus the keeper thereof. He will also satisfy himself that the keeper is a person of good behaviour and further that he is able to prevent drunkenness and disorder in the eating house. If he is satisfied on these three matters, it seems to us that the section contemplates that the discretion will be exercised in favour of the grant of a licence. We cannot accept that even though the Commissioner may be satisfied that the person applying for a licence has actual and effective control of the place where he is going to keep the eating house, is a person of good behaviour and can prevent drunkenness and disorder among the clientele, he will still go on to refuse the licence. The discretion that is given to him is to satisfy himself on these three points and if he is satisfied about them he has to grant the licence. On the other hand if he is not satisfied on any one or more of these points he will exercise the discretion by refusing the licence. As for the conditions which will be inserted in the licence, they are only for the purpose of carrying on the two objects specified in the section. They will naturally be more detailed in order to carry out the two objects aforesaid. But these two objects in our opinion along with the obvious implication in the section that the person applying must have actual and effective control of the place where he is going to keep the eating house are the criteria which will govern the exercise 146 of discretion by the Commissioner in the matter of granting or refusing a licence. We cannot agree with the learned counsel for the petitioner that the two parts of section 39 should be read separately, as if one has no effect on the other. Reading them together, it is in our opinion fair and reasonable to come to the conclusion that the discretion of the Commissioner in this matter is guided by the two objects mentioned in the section and by the necessary implication contained in it that the person applying must be in actual and effective control and possession of the place where he is going to keep the eating house. The argument therefore that section 39 confers an arbitrary and uncanalised power Without any criteria for guiding the discretion of the licensing authority must fail and the section cannot be held to be an unreasonable restriction on the right to carry on trade on this ground. Then it is urged that even if there is guidance in the section it provides for no hearing either oral or written of the person applying for a licence. Further it provides for no grounds to be given for refusing a licence. Therefore, though there may be some guiding principle in the matter of granting licences, the absence of a provision for hearing and for giving reasons for refusal would also make the provision unconstitutional as an unreasonable restriction on a fundamental right. Reference in this connection was made to State of Madras vs V. G. Row (1) where it was observed that "In considering the reasonableness of laws imposing restrictions on fundamental right, both the substantive and procedural aspects of the impugned law should be examined from the point of view of reasonableness and the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. " There is no doubt that procedural provisions of a statute also enter into the verdict as to its reasonableness; but at the same time there can be no abstract or 147 general principles which would govern the matter and each statute has to be examined in its own setting. It is undoubtedly correct that no provision has been made for giving a hearing to a person applying for a licence and the Commissioner has not to give reasons when refusing the licence; but it cannot be laid down as a general proposition that where in the case of licensing statute no provision is made for hearing and there is no provision for giving reasons for refusal the statute must be struck down as necessarily an unreasonable restriction on a fundamental right. No case has been cited before us which lays down such a general proposition. We have therefore to examine the section in its setting to decide whether the absence of a provision for hearing and for requiring the Commissioner to give reasons for refusal would make this section unconstitutional. The section appears in the Police Act, which deals generally with matters of law and order and the two objects specified in the section are also for the same purpose. The discretion is vested in a high police officer who, one would expect, would use it reasonably. There is no provision for appeal and there is no lis as between the person applying for a licence and the Commissioner; the exercise of the discretion depends upon the subjective satisfaction of the Commissioner as to whether the person applying for a licence satisfies the three conditions mentioned above. It is true that the order when made one way or the other affects the fundamental right of carrying on trade, but in the circumstances it cannot but be an administrative order (see, Nagendra Nath Bora vs The Commissioner of Hills Division and Appeals, Assam (1)), and though the Commissioner is expected to act reasonably there is no duty cast on him to act judicially. In Nakkuda Ali vs M. F. De section Jayaratne (2), the Privy Council pointed out that it was Quite possible to act reasonably without necessarily actinG judicially and that it was a long step in the argument to say that because a man is expected to act reasonably he cannot do so without a course of conduct analogous to the judicial process. The compulsion of hearing before (1) ; ,1253. (2) 148 passing the order implied in the maxim 'audi alteram partem ' applies only to judicial or quasi judicial proceedings: (see, Express Newspapers (P.) Ltd. vs The, Union of India (1)). Therefore, the fact that no hearing is required to be given by the Commissioner before he decides to grant or refuse a licence would not make the provisions as to licensing in the circumstances of this case unreasonable restrictions on the fundamental right of carrying on a trade. For the same reasons it cannot be said that because the reasons for refusal are not communicated to the person applying that would make the licensing provision unconstitutional. The person applying knows that under the law there are three conditions (already set out above) which the Commissioner has to consider in granting or refusing the licence. If he thinks that he fulfills the three conditions and the Commissioner has acted unreasonably in rejecting his application he is not without a remedy; he can apply to the High Court under article 226 and compel the Commissioner to disclose the reasons for refusal before the Court and if those reasons are extraneous or are not germane to the three matters arising under section 39, the High Court will compel the Commissioner to act within the scope of section 39. We are therefore of opinion that in the circumstances of this case and in the setting in which section 39 appears the mere absence of a provision for a hearing or a provision for communicating the reasons for refusal to the person applying, does not make section 39 unconstitutional as an unreasonable restriction on a fundamental right. The attack therefore on the constitutionality of section 39 must fail. Then we turn to the question of mala fides. It is not the case of the petitioner that the Commissioner has any personal animus against him or that he is favouring Bhowmick. What he says in ground 41 of his petition in this connection is that the reasons given by the Commissioner in his order dated May 30, 1959, for refusing the licence are not correct and that the Commissioner is annoyed with him because he went to the High Court by means of a writ application. (1) 106. 149 These in our opinion are no grounds for holding that the order of the Commissioner passed in this case on May 30, 1959, is malafide. The petition therefore fails and is hereby dismissed with costs. SUBBA RAO, J. We regret our inability to agree with Wanchoo, J. Our learned brother in his judgment has stated the facts fully and it is not necessary to restate them here. The petitioner applied to the Commissioner of Police, Calcutta, for a licence to enable him to carry on the business of an eating house known as "Kalpatoru Cafeteria". The Commissioner by his order dated May 30, 1959, rejected the application made by the petitioner for a licence on two grounds, namely, that he was not satisfied that from "the antecedents and resent conduct" of the petitioner it would be reasonable to think that the petitioner would keep good behaviour and would be able to prevent drunkenness or disorder among the persons frequenting the eating house. The application was rejected under section 39 of the Calcutta Police Act, No. IV of 1866 (hereinafter called the Act). The short question raised is whether section 39 of the Act is constitutionally valid. Section 39 of the Act reads: "The COMMISSIONER of Police, may, at his. discretion, from time to time, grant licenses to the keepers of such houses or places of public resort and entertainment as aforesaid for which no license as is specified in the Bengal Excise Act, 1909, is required upon such conditions, to be inserted in every such license, as he, with the sanction of the said State Government from time to time shall order, for securing the good behaviour of the keepers of the said houses or places of public resort or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the same; and the said licenses may be granted by the said Commissioner, for any time not exceeding one year. " Learned counsel for the petitioner contends that 150 the petitioner has under article 19(1)(g) of the Constitution a fundamental right to carry on the business of an eating house and that the provisions of section 39 of the Act impose unreasonable restrictions on the exercise of his right and, therefore, the said section is void. Before scrutinising the provisions of that section it would be convenient at the outset to notice the relevant aspects of the law vis a vis the concept of reasonable restrictions on a fundamental right. The concept of reasonableness has been clearly defined by Patanjali Sastri, C. J., in State af Madras vs V. G. Row (1) thus: "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonablenes s can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions 'imposed, the extent and urgency of the evil sought Co be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict". There the constitutional validity of section 15(2)(b) of the Indian Criminal Law Amendment Act, 1908, was impugned on the ground that it fell outside the scope of authorized restrictions in article 19(4) of the Constitution. The issue of a notification by the State Government declaring an association unlawful was made to depend upon its subjective satisfaction of certain objective factors. The Act also provided for an enquiry before an Advisory Board and the subsequent review of the order by the Government on the basis of the said enquiry. It was pressed upon this Court to hold that the said restriction passed the test laid down in article 19(4) of the Constitution. In rejecting the con tention, Patanjali Sastri, C. J., observed thus: "The formula of subjective satisfaction of the Government or of its officers, with an Advisory (1)[1952] S.C.R. 597, 607, 608. 151 Board thrown in to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. " The learned Chief Justice adverting to the procedural aspect of the restriction criticised the absence of a provision in the impugned Act for personal service on the association and thus depriving its members of the opportunity to make their representations. Compared with section 39 of the Act, the impugned provisions of the Criminal Law Amendment Act impose more stringent control on the exercise of the discretionary power by the Government. Yet the Court struck down the provisions. The attempt made to distinguish that decision on the ground that it related to the fundamental right of freedom of speech cannot be justified as the freedom to do business is also one of the important fundamental rights under the Constitution, The case of Thakur Raghubir Singh vs Court of Wards, Ajmer (1) was concerned with the question of the reasonableness of the provisions of section 112 of the Ajmer Tenancy and Land Records Act (XLII of 1950) which provided that "if a landlord habitually infringes the rights of a tenant under this Act, he shall, notwithstanding anything in section 7 of the Ajmer Government Wards Regulation, 1888 (1 of 1888), be deemed to be a 'landlord who is disqualified to manage his own property ' within the meaning of section 6 of the said Regulation and his property shall be liable to be taken under the superintendence of the Court of Wards. " The determination of the question whether a landlord habitually infringed the rights of a tenant was left to the Court of Wards. This Court held that section was void as being unreasonable restriction on the right in property as the restriction made the enjoyment of that right to depend upon the mere discretion of the (1)[1953] S.C.R. 1049, 1055. 152 executive. Mahajan, J., as he then was, observed as under: "When a law deprives a person of his possession of his property for an indefinite period of time merely on the subjective determination of an executive officer, such a law can, on no construction of the word "reasonable" be described as coming within that expression, because it completely negatives the fundamental right by making its enjoyment depend on the mere pleasure and discretion of the executive, the citizen affected having no right to have recourse for establishing the contrary in a, civil court. " Though section 112 of the Ajmer Tenancy and Land Records Act laid down an objective test, namely,"a landlord habitually infringing the rights of tenants under that Act", and, therefore, may be said to have laid down some policy for the exercise of the discretion by the Court of Wards, the section was struck down as the discretion was uncanalised and no effective procedure was prescribed to remedy the grievance of an aggrieved party. It cannot be said that the Commissioner of Police has a higher status than the Court of Wards or that the taking over of the management of an estate affects a larger right than preventing a person from doing his business. The decision in Messrs. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh (1) dealt with cl. 4(3) of the Uttar Pradesh Coal Control Order, 1953, whereunder the licensing authority was given absolute power to grant or refuse to grant, renew or refuse to renew, suspend, revoke, cancel or modify any licence under the said Order and the only thing he had to do was to record reasons for the action he took. Under the clause the State Coal Controller could delegate power to any other officer. This Court held that the said Order was void as it imposed unreasonable restrictions on the freedom of trade and business guaranteed under article 19(1)(g) of the Constitution and not coming within the protection afforded (1)[1954] S.C.R. 803, 811. 153 by cl. (6) of the Article. Mukherjea, J., as he then was, observed to the following effect: "The power of granting or withholding licences or of fixing the prices of the goods would necessarily have to be vested in certain public officers or bodies and they would certainly have to be left with some amount of discretion in these matters. So far no exception can be taken; but the mischief arises when the power conferred on such officers is an arbitrary power unregulated by any rule or principle and it is left entirely to the discretion of particular persons to do anything they like without any check or control by any higher authority. " We shall now notice some of the decisions cited at the Bar on behalf of the Commissioner in support of the validity of the impugned provisions. In Babul Chandra vs Chief Justice and Judges, High Court of Patna (1) it was held that the proviso to s ub section (1) of section 9 of the Indian Bar Councils Act was not void as being an unreasonable restriction upon the freedom to practise a profession, or to carry on an occupation, trade or calling. The proviso to section 9(1) states expressly that the rules "shall not limit or in any way affect the power of the High Court to refuse admission to any person at its discretion". Under section 8 of the Indian Bar Councils Act, no person is entitled as of right to practise in any High Court, unless his name is entered in the roll of the Advocates of that Court maintained under the Act. Under section 9 of that Act, the Bar Council can frame rules with the sanction of the High Court to regulate the admission of persons as Advocates. The proviso saves the overriding power of the High Court to refuse admission in its discretion. It was contendedthat an unfettered and uncontrolled discretion wasgiven to the High Court and that was unreasonable. This Court pointed out that there could not be a better authority than the High Court in that State to which the discretion could be entrusted. This decision turned upon three considerations, namely, (1) no person was entitled as of right to practise; (2) the discretion to refuse was vested in the (1)A.I.R. 20 154 highest judicial body in the State; and (3) it was implicit in the power of discretion that the High Court would give notice before rejecting an application. On that basis this Court held that the restrictions imposed by the proviso to section 9(1) were reasonable. Nor does the decision in Harishankar Bagla vs The State of Madhya Pradesh (1) lay down any different principle. There this Court was concerned with cl. 3 of the Cotton Textile (Control of Movement) Order, 1948, promulgated by the Central Government under section 3 of the Essential Supplies (Temporary Powers) Act, 1946, which required a citizen to take a permit from the Textile Commissioner to enable him to transport cotton textiles purchased by him. It was contended in that case that the requirement of a permit was an unreasonable restriction on the citizen 's right under sub cls. (f) and (g) of article 19(1) of the Constitution. This Court rejected the contention and affirmed the validity of the law. Mahajan, C. J., speaking for this Court gave four reasons in support of his conclusion and they were: (1) the Legislature passed the Essential Supplies (Temporary Powers) Act during a period of emergency when it was necessary to impose control on the production, supply and distribution of commodities essential to the life of the community; (2) cl. 3 of the Control Order did not deprive a citizen of the right to dispose of or transport cotton textiles purchased by him, but only required him to take a permit from the Textile Commissioner to enable him to transport them; (3) if transport of essential commodities by rail or other means of conveyance was left uncontrolled, it might well have seriously hampered the supply of these commodities to the public; and (4) the policy underlying the Order was clearly enunciated by the provisions therein and that policy governed the exercise of the discretion by the Textile Commissioner. On these considerations this Court maintained the validity of that Order. The said decision has no analogy to the provisions of section 39 of the Act in question. The decision in Union of India vs Bhana Mal Gulzarimal Ltd. (2) related to the question of validity of (1) (2) ; , 641. 155 cl. 11B of the Iron and Steel (Control of Production and Distribution) Order, 1941. This Court held, having regard to the provisions of that Order and those of the Essential Supplies (Temporary Powers) Act, 1946, that the Legislature had clearly enunciated its legislative policy and that cl. 11B of the Order laid down the object which was intended to be achieved. Gajendragadkar, J., delivering the judgment of the Court, observed thus: "Therefore reading cl. 11B by itself we do not see how it would be possible to hold that the said clause is violative of article 19. In fact, if sections 3 and 4 are valid and cl. 11B does nothing more than prescribe conditions for the exercise of the delegate 's authority which are consistent with section 3 it is only the actual price structure fixed by the Controller which in a given case can be successfully challenged as violative of article 19." The learned Judge considered the price structure fixed by the notification and observed that the respondents therein did not seriously challenge the validity of the notification in respect of price structure and, that apart, it was not proved that the notification adversely affected a large class of dealers taken as a whole. The judgment, therefore, does not help the respondents. Nor is the decision of this Court in Mineral Development Ltd. vs State of Bihar (1) of any help to the respondents. There the constitutional validity of section 25(1) of the Bihar Mica Act (10 of 1948) was impugned as violating the petitioners ' fundamental right under article 19(1)(f) and (g), of the Constitution. Under section 25(1)(c) of that Act discretion was given to cancel a licence to the State Government, but cl. (c) was hedged in by two important restrictions, namely, (i) the failure to comply with the provisions of that Act or the rules made thereunder should be a repeated failure and not a mere sporadic one, i.e., the defaulter must be a recalcitrant one; (ii) before canceling the licence the State Government should afford reasonable opportunity to the licensee to show cause why his license (1) , 619. 156 should not be cancelled. This Court in upholding the validity of the said section observed thus: "The power given to the State Government is only to achieve the object of the Act, i.e., to enforce the said provisions, which have been enacted in the a interest of the public; and that power, as we have indicated, is exercisable on the basis of objective tests and in accordance with the principles of natural justice. We cannot, therefore, hold that section 25(1)(c) of the Act imposes an unreasonable restriction on the petitioner 's fundamental rights under article 19(1)(f) and (g) of the Constitution. " This decision far from helping the respondents is, to some extent, against their contention. The result of the discussion may briefly be summarized in the form of the following propositions: A fundamental right to do business can be controlled by the State only by making a law imposing in the interest of the general public reasonable restrictions on the exercise of the said right; restrictions on the exercise of a fundamental right shall not be arbitrary or excessive or beyond what is required in the interest of the general public; the reasonableness of a restriction shall be tested both from substantive and proce dural aspects; an uncontrolled and uncanalised power conferred on an officer is an unreasonable restriction on such right; though a legislative policy may have been clearly expressed in a statute, it must also pro. vide a suitable machinery for implementing that policy in accordance with the principles of natural justice; whether a restriction is reasonable or not is a justiciable concept and it is for the Court to come to one conclusion or the other having regard to the considerations laid down by Patanjali Sastri, C.J., in State of Madras vs V. G. Row (1).and similar others; in taking an overall picture of the relevant circumstances, the Court may legitimately take into consideration the fact that the discretion is entrusted to a State Government or a highly placed officer, but that in it self is of minor importance for the simple reason that the fundamental right itself is guaranteed against the (1)[1952] S.C.R. 597. 157 action of the State, which is defined to include not only the Union or the State Governments but also Parliament, Legislatures and all local or other authorities within the territory of India; the distinction between an administrative authority and a judicial authority is not of much relevance in the context of a reasonable restriction, except perhaps a Court may more readily be inclined to uphold a restriction if a matter is entrusted to an impartial judicial authority than to an executive authority. Bearing the aforesaid principles in mind, let us look at the impugned provisions of the Act. The section has been extracted supra. The first part of the section confers a free and unqualified discretion on the Commissioner to grant a licence. A discretionary power to issue a licence necessarily implies a power to refuse to issue a licence. The word "may" is an enabling one and in its ordinary sense means "Permissible". When coupled with the words "at his discretion" it emphasises the clear intention of the legis lature to confer on the Commissioner an unrestrained freedom to act according to his own judgment and conscience. If the section stops there, it is common case that the power of the Commissioner is.uncontrolled and uncanalised. The second part of the section deals with the nature of the conditions to be inserted in the licence. The conditions to be imposed are for securing the good behaviour of keepers of public resort and for the prevention of drunkenness and disorder among the persons frequenting or using such places. No doubt the said conditions must have the sanction of the State Government. This part, therefore, ensures the peaceful and orderly conduct of business. The section is clear and unambiguous in terms and it is not disputed that the plain terms of the section will not enable the conditions of a licence to be projected into the matter of the exercise of the discretion. But what is contended is that the conditions laid down a precise policy for guiding the discretion of the Commissioner to give or not to give a licence. There are many objections to this approach 158 to the problem. Firstly, it is to rewrite the section. If the legislature intended to guide the discretion by laying down objective criteria it would have stated so in express terms; it would not have left the matter to the absolute discretion of the Commissioner. Secondly, if the two conditions only of the licence control the exercise of the discretion, the Commissioner cannot travel beyond the said two conditions. As a result the amplitude of the discretion is drastically cut down. The Commissioner would be able to refuse a licence only if he was satisfied that the applicant could not be relied upon to comply with the said conditions; if he was so satisfied, he could not refuse a licence in spite of the fact that there were many other good and relevant reasons for doing so. Thirdly, if the conditions are not exhaustive but only illustrative, the section would continue to suffer from the same vice, as it would still be open to the Commissioner to refuse a licence for any other reason. Fourthly, discretion based upon an anticipatory breach of conditions will be as arbitrary as in the case of absolute discretion, particularly in the case of new applicants, as more often than not it will have to be exercised on the basis of surmises, gossip or information, which may be false or at any rate untested. Lastly, by this unwarranted search for an undisclosed policy in the crevices of the statute, this Court will not only be finding an excuse to resuscitate an invalid law but also be encouraging the making of laws by appropriate authorities in derogation of fundamental rights. The provisions of sections 47 and 48(3) of the (IV of 1939), bring out in bold relief the distinction between the exercise of a discretion to issue a licence and the imposition of conditions in a licence. Section 47 enjoins on the Regional Transport Authority in considering an application for a stage carriage permit to have regard to the matters enunciated in that section. Section 48(3) enables the Regional Transport Authority to attach to the permit the conditions detailed in that sub section. While the former section regulates the exercise 159 of the discretion of the Regional Transport Authority issuing a permit, the latter describes the nature of the conditions to be inserted in the permit. These provisions no doubt cannot be invoked to construe the provisions of section 39 of the Act, but we are referring to them only to show the legislative practice in such matters and to emphasize the fact that the scope of the discretion to issue a licence and that of the power to impose conditions in a licence are different. Therefore, on a true construction of the plain words of the statute we cannot hold that any policy reasonably capable of controlling the discretion of the Commissioner has been laid down. Even if the two conditions can be read into the first part of section 39, the arbitrariness is writ large in the manner of exercising the so called guided discretion. In this context it is not necessary to come to a definite conclusion on the question whether the discretion is judicial or executive, for whatever be the nature of the discretion it must be tested from the standpoint of reasonableness of the restrictions imposed on a person 's right to do business. A citizen of India, for the purpose of eking out his livelihood, seeking to do an extensive business of an eating house, applies to the Commissioner for a licence, for without that licence he cannot do business, and if he does he will be liable to prosecution. The Commissioner can reject the application on two grounds, namely, (1) from his antecedents and present conduct it would be unreasonable to think that the petitioner would keep good behaviour, and (2) the Commissioner is not satisfied that the petitioner would be able to prevent drunkenness and disorder among the persons frequenting or using the eating house. Admittedly this order is made without giving any opportunity to an applicant to prove that he would satisfy both the tests laid down by section 39 of the Act. The Commissioner is not legally bound to give any reasons for his refusal to give a licence. Even if reasons are given, there is no machinery for getting such an order revoked or vacated. The section does not impose a duty on the Commissioner to give reasonable opportunity to an 160 applicant to clear his character or to disprove any un warranted allegations made against him or to prove that he would satisfy both the tests laid down by section 39 of the Act. Nor does the section provide for an appeal against the order of the Commissioner to an appropriate authority. The suggestion that the authority is a high officer in the police department and that he can be relied upon to exercise his discretion properly does not appeal to us for two reasons, namely, (1) as we have already pointed out, the Constitution gives a guarantee for the fundamental right against the State and other authorities; and (2) the status of an officer is not an absolute guarantee that the power will never be abused. Fundamental rights cannot be made to depend solely upon such presumed fairness and integrity of officers of State, though it may be a minor element in considering the question of the reasonableness of a restriction. Therefore, it is clear to our mind that the exercise of the power also suffers from a statutory defect as it is not channelled through an appropriate machinery. We have, therefore, no hesitation to hold that section 39 of the Act infringes the fundamental right of the petitioner under article 19(1)(g) of the Constitution both from substantive and procedural aspects. The next question is whether a mandamus will issue against the Commissioner. The Commissioner admittedly has launched criminal proceedings against the petitioner under the provisions of the Act for not taking out a licence under section 39 of the Act. As we have held that section 39 of the Act is constitutionally void, a writ of mandamus will issue against the Commissioner of Police, Calcutta, directing him not to take any further proceedings against the petitioner for not taking out a licence under the provisions of the Act. BY COURT. In accordance with the opinion of the majority, this Petition is dismissed with costs.

By section 39 of the Calcutta Police Act, 1866, "The Commissioner of Police, may, at his discretion from time to time, grant licenses to the keepers of such houses or places of public resort and entertainment as aforesaid for which no licence as is specified in the Bengal Excise Act, 1909 is required upon such conditions, (1) (1934) L.R. 61 I.A. 398. 136 to be inserted in every such license, as he, with the sanction of the said State Government from time to time shall order, for securing the good behaviour of the keepers of the said houses or places of public resort or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the same; and the said licenses may be granted by the said Commissioner, for any time not exceeding one year". The petitioner, whose application for a license in respect of an eating house was refused by the Commissioner of Police, Calcutta, under the section, challenged its constitutional validity on the ground that it conferred arbitrary and unguided powers on the Commissioner to grant or refuse a license without hearing the applicant and was, therefore, an unreasonable restriction on his fundamental right to carry on his trade guaranteed by article 19(1)(g) of the Constitution. Held, (per Kapur, Gajendragadkar and Wanchoo, JJ.), that in order to decide whether a provision in a pre Constitution statute, like the one in question, satisfies. the test of constitutionality laid down by article 19(i)(g) read with article 19(6) of the Constitution, the impugned section has to be read as a whole in a fair and reasonable manner and it should not be declared void simply because the considerations relevant to those Articles are not immediately apparent from its language. It is not correct to say that the discretion conferred on the Commissioner by the first part of the section is absolute and that the question of imposing the two conditions mentioned by the second part can arise only after the grant of the license. The two parts, read together, can lead only to the conclusion that the discretion vested in the Commissioner is guided by the two conditions mentioned in the section, namely, the securing of good behaviour and the prevention of drunkenness and disorder and a third by necessary impli cation, that the applicant must have actual and effective control and possession of the place where he keeps the eating house. Section 39 of the Calcutta Police Act, 1866, therefore, con fers no arbitrary or uncanalised discretion on the Commissioner, unguided by any criteria, and does not constitute an unreasonable restriction on the fundamental right to carry on trade under article 19(i)(g) of the Constitution. Rustom jamshed Irani vs Harley Kennedy, Bom. 386, inapplicable. Although there can be no doubt that procedural provisions of a statute also enter into the verdict as to its reasonableness, it cannot be laid down as a general proposition that if a licensing statute omits to provide for a hearing or for the giving of reasons for refusal, such omission must necessarily constitute an unreasonable restriction on a fundamental right. The Commissioner in passing an order under the section acts administratively and although he must act reasonably, there is no duty cast on him 137 to act judicially. Regard being had to the setting in which the impugned section appears in the Act and the circumstances of ,.this case, it could not be said that section 39 of the Act was such a restriction. State of Madras vs V. G. Row, ; , Nagendra Nath Bora vs The Commissioner of Hills Division and Appeals, Assam, ; , Nakkuda Ali vs M. F. De section jayaratne, and Express Newspapers (P.) Ltd. vs The Union of India, , relied on. If an applicant thinks that he has fulfilled the three con ditions and the Commissioner has unreasonably rejected his application, he has his remedy under article 226 of the Constitution. Per Subba Rao, J. It is well settled that restrictions on fundamental rights must not be arbitrary or excessive or beyond what is required in the interest of the general public. Such restrictions have to be tested both from the substantive and the procedural aspects. An uncontrolled or uncanalised power constitutes an unreasonable restriction. Even though the statute may clearly express the legislative policy that cannot be enough unless it provides a suitable machinery for implementation of that policy in accordance with the principles of natural justice. Restrictions are justifiable and in deciding whether a restriction is reasonable or not, the Court cannot attach much importance to the fact that the impugned statute vests discretion in the State Government or a high officer. Nor can the distinction between an administrative authority and a judicial one have much relevance except that the Court may be more inclined to uphold the discretion if vested in an impartial judicial authority rather than in an administrative one. State of Madras vs V. G. Row, ; , Thakur Raghubir Singh vs Court of Wards, Ajmer, ; and M/s. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh, ; , relied on. Babulal Chandra vs Chief justice and judges, High Court of Patna, A.I.R. 1954 S.C. 524, Harishankar Bagla vs The State Of Madhya Pradesh, , Union of India vs Bhana Mal Gulzarimal Ltd.; , and Mineral Development Ltd., State of Bihar, considered. Thus viewed, the plain words of the impugned section cannot be said to lay down any policy reasonably capable of controlling the discretion vested in the Commissioner. The word 'may ' coupled with the words 'at his discretion ' in the first part of the section clearly emphasises the intention of the Legislature to confer absolute power on the Commissioner. The second part deals with the nature of the conditions to be inserted in the license. But the scope of the discretion to issue 18 138 the license and the power to impose conditions in a license are two different matters. Even if the two conditions mentioned in the second part could be read into the first, the discretion conferred by the section would still be arbitrary since the section neither requires that the Commissioner should give reasonable opportunity to the applicant to prove that he satisfies both the tests prescribed by it nor that he should give reasons for refusing the license and no appeal is provided for. Consequently , from the substantive as much as the proce dural aspect, section 39 of the Act infringes the fundamental right of the petitioner guaranteed by article 19(i)(g) of the Constitution.

The West Bengal Land Reforms Act, 1955 permitted a tenant (land holder) to get the land cultivated by a bargadar, on the basis that the bargadar would share tho produce, and the Act contained provisions for enforcement of the right of the tenant to get such share. Section 17 permitted the tenant to terminate the cultivation of the land by a bargadar and resume possession for his own cultivation on certain contingencies, one of them being that he requires it bona fide for personal cultivation. The West Bengal Land Reforms (Amendment) Act, 1972 provided for the reduction in the ceiling area of the tenant, and incorporated sub sections (3), (4) and (5) of section 20B of the 1955 Act, which provided that where the bargadar had voluntarily surrendered or abandoned the cultivation of the land, the facility of cultivating the land personally by the tenant should be denied to him. The West Bengal Land Reforms (Amendment) Act 1977 inserted a Proviso and an Explanation to clause (8) of section 2 of the 1955 Act, which provided that a person or member of his family should reside in the greater part of the year in the locality where the land is situated and the principal source of his in come is derived from the land and that 'family ' shall have the same meaning as in clause (c) of section 14. The petitioners in their writ petitions to this Court assailed: (1) The West Bengal Land Reforms Act, 1955 as also amendments made to the said Act upto 1977, contending that the 1955 Act was constitutionally invalid and that the Amendment Act of 1972 was in the nature of a Ceiling Act prescribing a particular ceiling for the area of the land which should be retained by the tenant and that sub sections (3), (4) and (5) of section 20B of the 1955 Act were violative of Article 14 of the Constitution, as being discriminatory and arbitrary Once the tenant was given the right of personal cultivation and was permitted to get the land cultivated by a bargadar on the basis that the bargadar would share the produce, there was no warrant for not allowing the tenant to resume the land where a bargadar had voluntarily surrendered or abandoned the land and to deny the right of cultivating the land personally by the tenant, and (2) the Proviso 951 and the Explanation to section 2 of the 1955 Act deprive the petitioners of their rights guaranteed under Article 19(1)(e) and (g) of the constitution in as much as it prevents them from either going to or residing in any other place in India and places a serious curb on their right to carry on an occupation other than agriculture. On behalf of the respondents it was submitted that the rigour of sub sections (3) and (4) can be softened if clause (d) of section 17 is read down and interpreted in a way as to permit a tenant to resume the land under clause (d) of section 17 if the bargadar voluntarily surrenders or abandons the land. Dismissing the writ petitions: ^ HELD: 1 (i). The West Bengal Land Reforms Act, 1955 including the Amendment Act of 1972 and the proviso introduced by the Amendment Act of 1977 are constitutionally valid. [961 G] In the instant case the 1955 Act and the Amendment Act of 1972 having been added to the Ninth Schedule as Entry Nos. 60 and 81 prior to April 24, 1973, are immune from challenge as being violative of Part III of the Constitution. [954 A] Waman Rao & Ors. vs Union of India & Ors., AIR 1981 SC 271, referred to. (ii) Clauses (a), (b) and (c) of sub section (1) of section 17 of the 1955 Act are the only grounds on which a tenant can get the land back for his personal cultivation. The contingency where the bargadar voluntarily surrenders or abandons the land is neither mentioned, nor directly or indirectly contemplated by them. The contention of the respondent cannot be accepted for it would introduce something into section 17 which is not there and this is diametrically opposed to the well known canons of interpretation. [956 D E] (iii) There is no logical justification for the provisions of sub sections (3) and (4) of section 20B. When once the cultivator chooses to bring a bargadar on the land the interest of the bargadar is protected and has been made heritable. But when the bargadar on his own volition surrenders or abandons the land, there is no reason why the tenant should not be allowed to resume cultivation and instead be compelled to get the land cultivated by some other person nominated by the authority concerned under section 49 of the 1955 Act. This provision, therefore, appears to be extremely harsh and works serious injustice to the rights of the tenants particularly after the ceiling area of the tenant has been considerably reduced by the Amendment Act of 1972. [956 E G] (iv) Though the provisions of sub sections (3), (4) and (5) of section 20B a perilously border on arbitrariness and amount to serious curbs on the fundamental right of the cultivator to pursue his occupation, they cannot be struck down because they are contained in the Amendment Act of 1972 which has been placed in the Ninth Schedule prior to April 24, 1973. It will, however, be for the legislature which is the best judge of the needs of its people to give, a suitable relief to the tenant and soften the rigours of these harsh provisions. [957 C D] (2) The object of the proviso is to safeguard the interest of the tenant himself so that he may give wholehearted attention to the personal cultivation of 952 the land. The proviso does not debar him from following any other occupation but once a tenant wants to have the land to himself for personal cultivation he must elect whether to pursue the profession of cultivation or some other occupation. Thus, even though there is some amount of restriction both on the right of the petitioners to reside or follow any other occupation, such a restriction cannot be said to be arbitrary or unreasonable. [958 C, E F] In the instant case the restriction does not amount to complete deprivation of the right of the tenant to reside elsewhere because the words for the greater part of the year ' leave sufficient scope to the tenant to reside elsewhere for a part of the year if he so desires. It is not necessary that the tenant should himself reside in the village for the greater part of the year. It is sufficient if any member of the family which includes his wife, unmarried adult, married adult, minor son and so on remains in the village. This would amount to substantial compliance of the conditions of the proviso. The restriction, therefore, is partial and in public interest. [958 G, 959 D] (3) Whenever a complaint of violation of fundamental rights is made the court has to determine whether or not the restrictions imposed contain the quality of reasonableness. In assessing these factors a doctrinaire approach should not be made but the essential facts and realities of life have to be duly considered. Our Constitution aims at building up a socialist state and the establishment of an egalitarian society and if reasonable restrictions are placed on the fundamental rights in public interest, they can be fully justified in law. [959 F G] State of Madras vs V.G. Row, ; , referred to. (4) As the proviso operates equally to all the tenants governed by it no question of discrimination arises. [961 F]

The Petitioner, representing a Social Organisation, has written a letter alleging environment pollution in some villages and the adjoining Sarnath Temple. The letter was treated as Writ Petition under Article 32 of the Constitu tion of India. It was alleged that the smoke and dust emit ted from the Chimneys of Respondent No. 3, viz., an oil Mill and a refinery plant in the area, and the effluents dis charged by the plants has been causing serious environmental pollution in the thickly populated area, leading to epidemic diseases. It was further alleged that even the flora was badly affected by pollution. Petitioner prayed for direc tions to check the pollution. On behalf of Respondent No. 3, it was contended that it had complied with the provisions of Air (Prevention and Control of Pollution) Act, 1981 and the and there was no com plaint whatsoever. It was further stated that the petitioner was an anti social element and his only aim was to blackmail and extract money from people like Respondent No. 3, and that a criminal case has already been filed against him, for such activities. Dismissing the writ petition, HELD: 1. Article 32 is a great and salutary safeguard for preservation of fundamental rights of the citizens. Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything which 740 endangers or impairs by conduct of anybody either in viola tion or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Article 32 of the Constitution. But this can only be done by any person interested genuinely in the protection of the society on behalf of the society or community. This weapon as a safeguard must be utilised and invoked by the Court with great deal of circumspection and caution. Where it appears that this is only a cloak to "feed fat ancient grudge" and enemity, this should not only be refused but strongly discouraged. While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon under Article 32 should not be misused or permitted to be misused creating a bottleneck in the superior Court preventing other genuine violation of fundamental rights being considered by the Court. That would be an act or a conduct which will defeat the very purpose of preservation of fundamental rights. [743B E] Bandhu Mukti Morchay. Union of lndia & Ors.; , , referred to. This petition is legally devoid of any merit or principles of public interest and public protection. There was no fundamental right violation or could be violative if the allegations of the so called champions on behalf of the society are scrutinised. [743G] 2.2. Prima facie the provisions of the relevant Act, namely, the Air Pollution Control Act have been complied with and there is no conduct which is attributable to re spondent No. 3 herein leading to pollution of air or ecolog ical imbalances calling for interference by this Court. The orders passed by the Pollution Control Board also indicate that there were no instances of any violation. There was no complaint from anybody apart from the petitioner, or any authority as to the non compliance of any statute by Re spondent No. 3. [743A B; 742G]

The validity of the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953) and of the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965 was challenged by the petitioners under article 32 of the Constitution. Since these Acts were included in the 9th Schedule to the Constitution by the Constitution (Seventeenth) Amendment Act, 1964, the validity of the said Amendment Act was also challenged. In this connection it was urged that Sankari Prasad 's case in which the validity of the constitution (First) Amendment Act, 1951 had been upheld and Sajjan Singh 's case in which the validity of the Constitution (Seventeenth) Amendment Act, 1964, had been upheld by this Court, had been wrongly decided. It was contended that Parliament had no power to amend fundamental rights in Part III of the Constitution. HELD: Per Subba Rao, C.J., Shah, Sikri, Shelat and Vaidialingam, JJ. (Hidayatullah, J. Concurring) : Fundamental Rights cannot be abridged or taken away by the amending procedure in Ail. 368 of the Constitution. An amendment to the Constitution is 'law ' within the meaning of article 13(2) and is therefore subject to Part III of the Constitution. Sri Sankari Prasad Singh Deo vs Union of India Rajasthan; , , reversed. Per Subba, Rao, C.J., Shah, Sikri, Shelat and Vaidialingam, JJ. (i) Fundamental rights are the primordial rights necessary for the development of human personality. They are the rights which enable a 763 man to chalk out his own life in the manner he likes best. Our Constitution, in addition to the well known fundamental rights, also included the rights of minorities and other backward communities in such rights. [789 E] The fundamental rights are given a transcendental position under our Constitution and are kept beyond the reach of Parliament. At the same time Parts III and IV of the Constitution constituted an integrated scheme forming a self contained code. The scheme is made so elastic that all the Directive Principles of State Policy can reasonably be enforced without taking away or abridging the fundamental rights. While recognisingthe immutability of the fundamental rights, subject to social control the Constitution itself provides for the suspension or the modification of fundamental rights under specific circumstances, as in articles 33, 34 and 35. The non obstante clause with which the last article opens makes it clear that all the other provisions of the Constitution are subject to this provision. Article 32 makes the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by the said Parts a fundamental right. Even during grave emergencies article 358 only suspends article 19 and all other rights are untouched except those specifically suspended by the President under article 359. [789 H; 790 D] The Constitution has given a place of permanence to the fundamental freedoms. In giving to themselves the Constitution the people have reserved the fundamental freedoms to themselves. article 13 merely in corporates that reservation. The Article is however not the source of the protection of fundamental rights but the expression of the reservation. The importance attached to the fundamental freedoms is so transcendatal that a bill enacted by a unanimous vote of all the members of both Houses is ineffective to derogate from its guaranteed exercise. It is not what Parliament regards at a given moment as conducive to the public benefit but what Part III declarer. protected, which determines the ambit of the freedom. The incapacity of Parliament therefore in exercise of its amending power to modify, restrict, or imposefundamental freedoms in Part III arises from the scheme of theConstitution and the nature of the freedoms. [792 D F] A. K. Gopalan vs State of Madras, [1950] S.C.R.88, State of Madras vs Smt. Champakam Dorairajan, (1951) S.C.R. 525, Pandit M. section M. Sharma vs Shri Sri Krishna Sinha, [1959] Supp. 1 S.C.R. 806 and Ujjam Bai vs State of Uttar Pradesh, [1963] 1 S.C.R. 778, referred to. If it is the duty of Parliament to enforce directive principles it is equally its duty to enforce them without infringing the fundamental rights. The verdict of Parliament on the scope of the law of social control of fundamental rights is not final but justiciable. If it were not so, the whole scheme of the Constitution would break. [815 H; 816 A B] , (ii)Article 368 in terms only prescribes various steps in the matter of amendment. The article assumes the power to amend found else where. The completion of the procedural steps cannot be said to culminate in the power to amend for if that was so the Constitution makers could have stated that in the Constitution. Nor can the power be implied either from article 368 or from the nature of the articles sought to be amended; the doctrine of necessary implication cannot be invoked if there is an express provision. There is no necessity to imply any such power as Parliament has the plenary power to make any law including the law to amend the Constitution subject to the limitations laid down therein [793 E G] (iii)The power of Parliament to amend the Constitution is derived from articles 245, 246 and 248 read with item 97 in List I. The residuary 764 power of Parliament can certainly take in the power to amend the Constitution. [794 A D] Though a law made under article 245 is subject to the provisions of the Constitution it would be wrong to say that every law of amendment made under it would necessarily be inconsistent with the articles sought to be amended. It cannot reasonably be said that a law amending an article is inconsistent with it. The limitation in article 245 is in respect of the power to make a law and not of the content of the law made within the scope of its power. [794 E F] An order by the President under article 392 cannot attract Art 368 as the amendment contemplated by the latter provisions can be initiated only by the introduction of a bill in Parliament. It cannot therefore be said that if the power of amendment is held to be a legislative power the President acting under article 392 can amend the Constitution in terms of article 368. [794 G H] (iv) The Constituent Assembly, it so minded, could certainly have conferred an express legislative power on Parliament to amend the Constitution by ordinary legislative process. There is, therefore, no inherent inconsistency between legislative process and the amending one. Whether in the field of a constitutional law or statutory law amendment can be brought about only by 'law '. [794 C D] Article 13(2), for the purpose of that Article, gives an inclusive definition of 'law '. It does not Prima facie exclude constitutional law. The process under article 368 itself closely resemble the legislative process. Article 368 is not a complete code in respect of the procedure of amendment. The details of procedure in respect of other bills have to be followed so far as possible in respect of a Bill under article 368 also, The rules made by the House of the People providing procedure for amendments lay down a procedure similar to that of other bills with the addition of certain special provisions. If amendment is intended to be Something other than law the constitutional insistence on the said legislative process is unnecessary. The imposition of further conditions is only a safeguard against the hasty action or a protection to the states but does not change the legislative character of the amendment [795 G 796 C] Article 3 of the Constitution permits changes in States and their boundaries by a legislative process under articles 4 and 169 amendments in the Solution are made by 'law ' but by a fiction are deemed not to be amendments for the purpose of article 368. This shows that amendment is law and that but for the fiction it would be an amendment within the meaning of Art, 368. [796 C F] Therefore amendments either under article 368 or under other Articles are only made by Parliament following the legislative process and are 'law ' for the purpose of article 13(2). [798 C] Mccawley vs The king, [1920]A.C., 691 and The Bribery Commissioner vs Pedrick Ransinghe, ; , referred to. (v) One need not cavil at the description of amending power as a sovereign power for it is sovereign only viithin the scope of the power conferred by a particular Constitution which may expressly limit the power of amendment both substantive and procedural. If cannot therefore be said that amending power can have no limitations being a sovere4p power. [804] The argument that the amending process involves political questions and is therefore outside.the scope of judicial re view cannot also be aeCePted It may be. Parliament seeks to amend the Constitution for political reasons but the court in denying that power will not be deciding 765 a political question; it will only be holding that Parliament has no power to armed Particular articles of the Constitution for any purpose whatsoever, be it political or otherwise. [804 E G] (vi) If power to abridge the fundamental rights is denied to Parliament revolution is not a necessary result. The existence of an all comprehensive power cannot prevent revolution if there is chaos in the country brought about by misrule or abuse of power. Such considerations are out of place in construing the provisions of the Constitution by a Court of law. [816 B C] (vii) While ordinarily @ Court will be reluctant to reverse its previous decisions it is its duty in the constitutional field to correct itself as early as possible, for otherwise the future progress of the country and happiness of the people will be at stake. As it was clear that the decision in Sankari Prasad 's case was wrong, it was pre eminently a typical case where this Court should overrule it. The longer it held the field the greater the scope for erosion of fundamental rights. As it contained the seeds of destruction of the cherished rights of the people, the sooner it was overruled the better for the country. [816 G H] The Superintendent and Legal Remembrancer Stale of West Bengal vs The Corporation at Calcutta; , relied on. (viii) The Constitution (Seventeenth Amendment) Act, 1964, inasmuch as it takes away or abridges fundamental rights was beyond 'the amending power of Parliament and void because of contravention of article 13(2). But having regard to the history of this and earlier amendment to the Constitution, their effect on the social and economic affairs of the country and the chaotic situation that may be brought about by the sudden withdrawl at this stage of the amendments from the Constitution it was undesirable to give retroactivity of this decision. The present was therefore a fit case for the application of the doctrine of "prospective. overruling, evolved by the courts in the United States of America. [805 E; 807 E, G; 808 C D] Great Northern Railway vs Sunburst Oil & Ref. Co. ; , Chicot County Drainage vs Baxter State Bank; , , Griffin vs Illionis, ; , Wolf vs Colorado, ; : 193 L. Ed. 872, Mapp vs Ohio, ; : 6 L. Ed. (2nd Edn.) 1081 and Link letter vs Walker; , , referred to. (ix), The doctrine of "prospective overruling" is a modern doctrine suitable for a fast moving society. It does not do away with the doctrine of state decision but confines it to past transactions. While in Strict theory it may be said that the doctrine 'involves the making of law, *hat the court really does is to declare the law but refuse to give retroactivity to it. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a court finds the law and that it does make law It finds law but restricts its operation to the future. It enables the court to bring about a smooth transition by correcting, its errors without disturbing the impact of those errors on past transactions. By the application of this doctrine the past may be preserved and the future protected. [913 A C; 814 E F] Our Constitution does not expressly of by necessary implication speak against the doctrine of prospective overruling. Articles 32, 141 and 142 are designedly made comprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do complete justice. The expression 'declared ' in article 141 is wider than the words 'found or made '. The law declared by the Supreme Court is the law of the land. If so, there is no acceptable reason why 7 66 the Court, in declaring the law in supersession of the law declared by it earlier, could not restrict the operation of the law as declared to the future and save the transactions whether statutory or otherwise that were affected on the basis of the earlier law. [813 F H] As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, it would like to move warily in the beginning and would lay down the following propositions : (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by highest court of the country, ie. the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the Courts as it has India; (3) the scope of the retrospective operation of the law declared by the supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it. [814 C D] Applying the doctrine of prospective overruling in the circumstances of the present case the Court declared that this decision would not affect the validity of the Constitution (Seventeenth Amendment) Act 1964, or other amendments to the Constitution taking away or abridge the fundamental rights. It further declared that in future Parliament will have no power to amend Part III of Abe Constitution so as to take away or abridge the fundamental rights. [814 F G] (x) As according to the above decision the Constitution (Seventeenth Amendment) Act held the field the validity of the two impugned Acts, namely the Punjab Security of Land Tennures Act, 10 of 1953 and the Mysore Land Reforms Act, 10 of 1962, as amended by Act 14 of 1965, could, not be questioned on the ground that they offended Art 13, 14 or 31 of the Constitution. [815 E] (xi) On the findings the following, questions did not fall to be considered : (a) Whether in the exercise of the power of amendment the fundamental structure of the Constitution may be changed or even destroyed or whether the power is restricted to making modification within the framework of the original instrument for its better effectuation ? (b) Whether the amendment of fundamental rights is covered by the proviso to article 368 ? (c) To what extent can the provisions of die Constitution other than fundamental rights be amended ? (d) To what extent can Part III be amended otherwise thin by taking away or abridging the fundamental rights ? (e) Whether the impugned Act could be sustained under the provisions of the Constitution without the aid of articles 31A and 31B of the Schedule. Obiter If necessity to abridge the fundamental rights does arise the residuary power of Parliament may be relied upon to call for a constituent bly for making a new Constitution or radically changing it. The recent Act providing for a poll in Goa, Daman and Diu was an instance of analogus exercise of such residuary power by the Parliament, [816 E F] Per Hidayatullah. J. : (i) The scope of the amending power under the COnstitution is not to be determined by taking an apriori view of the 767 omnicompetence of article 368. When there is conflict between that Article and article 13(2) juridical hermeneutics requires the Court to interpret them by combining 'them and not by destroying one with the aid of the other. No part in a Constitution is superior to another part unless the Constitution itself says so and there is no accession of strength to any provision. by calling it a code. It is, the context of the legal provisions that illustrates the meaning of the different parts so that among them and between them there should be correspondence and harmony. [857 H 858C] (ii) It is wrong to think of the Fundamental Rights as within Parliament 's giving or taking. They are secured to the people by articles 12, 13, 32, 136, 141,,144 and 226. The High Courts and finally this Court have been made the Judges of whether any lagislative or executive action on the part of the State, considered as comprehensively as is possible,offends the Fundamental Rights and article 13(2)declares that legislation which so offends is to be deemed to be void. The general words of article 368 cannot be taken to mean that by calling an Act an Amendment of the Constitution Act a majority of total strengths and a 2/3rds majority of the members presnt and voting in each House may remove not only any of the Fundamental Rights but the whole Chapter giving them. [860 A D; 867 FF] (iii) In Britain there is no distinction between constitutional law and ' ordinary law as to the procedure of their enactment. In our Constitution too in spite of the claim that article 368 is a Code articles 4, 11 and 169 show that the amendment of the Constitution can be by the ordinary law making procedure. By this method one of the legislative limbs in a State can be removed or created. This destroys at one stroke the claim that article 368 is a code and. also that any special method of amendment of the Constitution is fundamentally necessary. [861 E G] The only difference between constitutional law and ordinary law can, be said to arise from the fact that constitutional laws are generally amend able under a process which in varying degrees, is more difficult or elaborate. This may give a distinct character to the law of the Constitutionbut it does not serve to distinguish it from the other laws of the land for the purpose of article 13(2). The Article itself does not exclude constitutional law which could have been easily done had the constitution makers. so intended. [862 B; 866 B] An amendment to the Constitution is not made under power derived ' from articles 245 or 248 of the Constitution read with entry 97 of List 1. The power of amendment is sui generis. [900 E] (iv) A narrow view need not be taken of the word amendment '. By an amendment new matter may be added, old matter removed or altered. The power of amending the Constitution is however not intended to be used for experiments or as an escape, from restrictions against undue State action enacted in the Constitution itself. Nor is the power of amendment available for the purpose of remoing express or implied restrictions against the State. [862 F; 863 B C] Coleman vs Milter, ; 307 U.S. 443 , Luther V. Borden,, and Baker vs Carr, 369 U.S. 186 ; , 633), referred to. The State is no doubt supreme but in the supremacy of its powers it may create impediments on its own sovereignty. There is nothing to prevent the State from placing certain matters outside the amending procedure. When this happens the ordinary procedure of amendment ceases to apply. Amendment can then only be by a freshly constituted body. 768 To attempt to do this otherwise is to attempt revolution which is to alter the will of the people in an illegal manner. Courts can interfere to nullify the revolutionary change because there is an infraction of exiting legality. Democracy may be lost if there is no liberty based on law and law based on equality. The protection of the fundamental rights is necessary so that we may not walk in fear of democracy itself. [863 G; 864 A C; 865 A D] (v) In article 13(2) the restriction is against the State. There is a difference between the State and its agencies such as Government, Parliament, the Legislature of the States, and the local and other authorities. The State means more than any of these or all of them put together. By making the State subject to Fundamental Rights it is clearly stated in article 13(2) that any of the agencies acting alone or all the agencies acting together are not above the Fundamental Rights. Therefore when the House of the People or the Council of States introduces a Bill for the abridgement of the Fundamental Rights, it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression Government of India in the General Clauses Act means the President of India. Thus the injunction in article 13(2) is against the whole force of the State acting either in its executive or legislative capacity. [866 E H] (vi) It is wrong to invoke the Directive Principles as if there is some antinomy between them and the Fundamental Rights. The Directive Principles lay down the routes of State action but such action must avoid the restrictions stated in the Fundamental Rights. It cannot be conceived that in following the Directive Principles the Fundamental Rights can be ignored. [867 G, 868 B] (vii) Our Constitution has given a guaranteed right to the persons whose fundamental rights are affected to move the Court. The guarantee is worthless if the rights are capable of being taken away. This makes our Constitution unique and the American or other foreign precedents cannot be of much assistance. [875 H] Hollingsworth vs Virginia, ; , Leser vs Garnett, ; , Dillon vs Gloss, ; and Texas vs White; , , referred to. It is not that Fundamental Rights are not subject to any change or modification. The Constitution permits a curtailment of the exercise of most of the Fundamental Rights by stating the limits of that curtailment. It permits the Fundamental Rights to be controlled but prohibits their erasure. [878 B] (viii) Parliament today is not the constituent body as the constituent 'assembly was but a constituted body which must bear true allegiance to the Constitution as by law established. To change the Fundamental Part of the individuals liberty is a usurpation of the constituent functions because they have been placed outside the scope of the power of the constituted Parliament. [870 B D] Our Constitution like some others has kept certain matters outside the amendatory process so that the their representatives. In article 35 obstante clause. They exclude Article under the proviso. It is therefore a great error to think of article 368 as a code or as omnicompetent. [901 C E; 902 A B] 769 Garnishee case; , , referred to. Article 368 cannot directly be amended by Parliament to confer power on itself over the fundamental rights, It would be against article 13(2). Parliament cannot do indirectly what it cannot do directly. [878 H] (ix) If it is desired to abridge the Fundamental Rights the legal method is that the State must reproduce the power which it has chosen to put under restraint. Parliament must amend article 368 to convoke another constituent assembly, pass a law under item 97 of the List 1 of Schedule 7 to call a constituent assembly, and then that assembly may be able to abridge or take away the fundamental rights. Any other method must be regarded as revolutionary. [878 D E; 879 B] (x) The various amendments that have been made by Parliament in articles 15, 16 and 19 did not abridge fundamental rights and were therefore valid. [879 C, 883 B] (xi) Our Constitution accepted the theory that Right of Property is a fundamental right though perhaps it was an error to do so if socialisation was desired. It treated property rights as inviolable except through law for public good and on payment of compensation. However the various amendments have significantly changed the position. As a result of them, except for land within the prescribed ceiling, all other land can be acquired or rights therein extinguished or modified without compensation and no challenge to the law can be made under articles 14, 19 or 31 of the Constitution. [887 B; 888 B C; 896 F G] As there is apprehension that the erosion of the right to property may be practised against other fundamental rights it is necessary to call a halt. An attempt to abridge or take away Fundamental Rights by a constituted Parliament even through an amendment of the Constitution can I declared void. This Court has the power and the jurisdiction to do so. The opposite view expressed in Sajjan Singh 's case was wrong. [898 B C] (xii) The First, Fourth and Seventh amendments of the Constitution, cannot now be challenged because of long acquiescence. It is good sense and sound policy for the courts to decline to take up an amendment for consideration after a considerable lapse of time when it was not challenged before or was sustained on an earlier occasion after challenge. [893 O, H 1902 D E] Lesser vs Garnett, ; (1922), referred to. (xiii) In the Seventeenth Amendment, the extension of the definition of 'estate ' to include ryotwari and agricultural lands is an inroad into the Fundamental Rights but it cannot be questioned in view, of the existence of article 3 1A(1) (a) whose validity cannot now be challenged. The new definition of estate introduced by the amendment is beyond the reach of the Courts not because it is not law but because it is "law" and fills within that word in article 31(1) (2) (2A) and article 3 1 A(1). [899 C G] The third section of the Act is however invalid. It adds 44 State Acts to the ninth schedule. The Schedule is being used to give advance protection to legislation which is known or apprehended to derogate,from the Fundamental Rights. The power under article 368 was not meant to give protection to State statute , which offend the Constitution. The intent here is to silence the courts and not to amend the Constitution. [900 A D] 770 (xiv) The two impugned Acts namely the Punjab Security of Land Tenures Act, 1953 and the Mysore Land Reforms Act, 1962 as amended are valid under the Constitution not because they are included in Schedule 9 of the Constitution but because they are protected by article 3 1 A and the President 's assent. [902 G H] Per Wanchoo, Bachawat, Ramaswami, Bhargava and Mitter, JJ. (dissenting): Article 368 carries the power to amend all parts of the Constitution including the fundamental rights in Part III of the Constitution. An amendment is not 'law ' for the purpose of article 13(2) and cannot be tested under that Article. Sri Sankari Prasad Singh Deo vs Union of India, ; and Sajjan Singh vs State of Rajasthan, ; , reaffirmed. Per Wanchoo, Bhargava and Mitter, JJ. (i) The Constitution provides a separate part headed 'Amendment of the Constitution ' and article 368 is the only article in that Part. There can therefore, be no doubt that the power to amend the Constitution must be contained in article 368. If there was any doubt in the matter it is resolved by the words, namely, "the Constitution shall stand amended in accordance with the terms of the bill". These words can only mean that the power is there to amend ,the Constitution after the procedure has been followed. [826 A D] (ii) While there is a whole part devoted to the amendment of the Constitution there is no specific mention of the amendment of the Constitution in article 248 or in any entry of List 1. It would in the circumstances 'be more appropriate to read the power in article 368 than in article 248 read with item 97 of List I. [826 H 827 A] The original intention of the Constitution makers was to give residuary power to the States. The mere fact that during the passage of the Constitution by the Constituent Assembly residuary power was finally vested in the Union would not therefore mean that it includes the power to amend the Constitution. Moreover residuary power cannot be used to change the fundamental law of the Constitution because all legislation is under article 245 "subject to the provisions of this Constitution". [827 B, H] Mere accident of similarity of procedure provided in article 368 to that provided for ordinary legislation cannot obliterate the basic difference 'between constitutional law and ordinary law. It is the quality and nature of what is done under article 368 and not its similarity to other procedure that should be stressed. What emerges after the procedure in article 368 has been followed is not ordinary law but fundamental law. [829 D; 830 C D] (iii) The procedure under the proviso to article III cannot apply to a 'bill to amend the Constitution. If the President refused to, give his assent to such a bill , the proposed amendment falls. In this respect at any rate the procedure under article 368 differs from, the ordinary legislative process. [831 B E] (iv) The word 'law ' has been avoided apparently with great care in Art.368. What emerges after the procedure has been followed is not an Act but the Constitution stands amended. After that the courts can only see whether the procedure in article 368 was followed. If it has been followed there is no question of testing the amendment of the Constitution On the avail of fundamental rights or in any other way as in the case of ordinary legislation. [832 A G] 771 (v) To say that 'amendment ' in law only means a change which results in improvement would make amendment impossible for what is improvement is a matter of opinion. [834 B] It may be open to doubt whether the power of amendment contained in article 368 goes to the extent of completely abrogating the present Constitution and substituting I it by an entirely new one. But short of that the power to amend includes the power to add any provision to the Constitution to alter any provision and substitute any other provision in its place or to delete any provision. [834 F G] The seventeenth amendment is merely in exercise of the power of amendment as indicated above and cannot be struck down on the ground that it goes beyond the power conferred by Parliament to amend the Constitution by article 368. [834 H] (vi) There is no express limitation on power of amendment in article 368 and no limitation can or should be implied therein. If the Constitution makers intended certain basic provisions in the Constitution, and Part III in particular, to be not amendable there is no reason why it was not so stated in article 3 68. The acceptance of the principle that them is an implied bar to amendment of basic features of the Constitution would lead to the position that any amendment to any article would be liable to challenge before the courts on the ground that it amounted to amendment of a basic feature. Constituent power like that in Art 368 can only be subject to express limitations so far as the substance of the amendments is concerned. [835 A; 836 D, G] (vii) For interpreting article 369 it is not permissible to read the speeches made in the Constituent Assembly. Historical facts namely what was accepted or what was not accepted or what was avoided in the Constituent Assembly can be looked into; but in connection with article 368 no help can be got from the historical material available. [838 C] Administrator General, of Bengal vs Prem Lal Mullick, (1895) XXII I.A 107, Baxter vs Commissioner of Taxation, (1907) 4 C.I.R. 1087, A. K. Gopalan vs State of Madras [1950] S.C.R. 88 and The Automobile Transport (Rajasthan) Ltd. vs State of Rajasthan, [1963] 1 S.C.R. 491, referred to. (viii) The preamble to the Constitution cannot prohibit or control in any way or impose any implied restrictions or limitations on the power to amend the Constitution contained in Aft. 368. [838 H] In re the Berubari Union and Exchange of Enclaves, , referred to. (ix) The word 'law ' in article 13(1) does not include. any law in the nature of a constitutional.provision for no such law remained in view of article 395 which provided that "the Indian Independence Act, 1947 and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed. There is no reason why if the word 'law ' in article 13(1) relating to past laws does not include any constitutional provision the word 'law ' in cl. (2) would take in an amount of the Constitution for it would be reasonable to read the word in the same sense in both the clauses. [839 D F] Article 13 (2) when it talks of the State making any law, refers to the law made under the provisions contained in Ch. 1 of Part XI of the Constitution beginning with article 245. It can have no reference to the 772 Constituent power of amendment under article 368. For it is somewhat contradictory that in article 368 power should have been given to amend any provision of the Constitution without any limitations but indirectly that power should be limited by using words of doubtful import in article 13(25.[841 C] The power conferred by the words of article 368 being unfettered, inconsistency between. that power and the provision in article 13(2) must be avoided. Therefore in keeping with the unfettered power in article 368 the word 'law ' in article 13(2) must be read as meaning law passed under the ordinary legislative power and not a constitutional amendment. The words in article 13(2) are not specific and clear enough to be regarded as an express limitation on article 368. [842 G H] (x) Merely because there was some indirect effect on article 226 it was not necessary that the Seventeenth Amendment should have been ratified under the proviso to article 368. article 245 had not also been directly affected by the said Act and no ratification % as required on this ground either. [843 G H; 846 C] (xi) The laws added to the Ninth Schedule by the Seventeenth Amendment Act had already been passed by the State Legislatures and it was their constitutional infirmity, if any, which was being cured by the device adopted in article 31B read with the Ninth Schedule, the amendment being only of the relevant provisions of Part III which were compendiously put in one place in article 31B. Parliament could alone do it under article 368 and there was no necessity for any ratification under the proviso, for amendment of Part HI is not entrenched in the proviso. [847 E] In curing the infirmity of the said laws Parliament was not encroaching on the exclusive legislative powers of the States because only Partiament could card the infirmity. For the same reason the fact that the laws in question were State laws did. not make ratification obligatory. [847 G] A limited meaning cannot be given to Art, 368 because of the possibility of abuse of the power. The check is not in the courts but in the people who plect members of Parliament. [848 F] The power of amendment contained in a written federal constitution is a safety valve which to a large extent provides for stable growth and makes violent revolution more or less unnecessary. The fact that in the last sixteen years a large number of amendments , could be made and have been made is due to the accident that one party has been returned by electors in sufficient strength to be able to command Special majorities which are required in article 368, not only at the Centre but in all the States. But that is no ground for limiting the clear words of article 368. [850 C D, E] (xii)Though the period for which Sankari Prasad 's case has stood unchallenged is not long, the effects which have followed on the passing of State laws on the faith of that decision, are so overwhelming that the decision should not be disturbed otherwise chaos will follow. This is the fittest possible case in which the principle of stare decisis should be applied [851 G] Keshav Mills: Company, Ltd V Commissioner of Income tax; , , referred to. (xii)The doctrine of prospective overruling cannot be accepted in this country. The doctrine accepted here is that courts declare law and that a declaration made by a court is the law of the land and takes effect 773 from the date the law came into force. It would be undesirable to give up that doctrine and supersede it with the doctrine of prospective overruling. [852,D F] Moreover a law contravening article 13(2) is void ab initio as held by this Court in Deep Chand 's case and Mahendra Lal Jaini 's case. In the face of these decisions it is impowible to apply the doctrine of prospective overruling to ordinary laws. If constitutional law is to be treated as ordinary law the same principle applies. If however it is not treated as 'law ' under article 13(2) then there is no necessity of applying the principle of prospective overruling for in that case the amendment under article 368 does not have to be tested under article 13(2). [852 G H; 853 B] Deep Chand vs St ate of Uttar Pradesh, [1959] Supp. 2 S.C.R. 8 and Mahendra, Lal Jaini vs State of Uttar Pradesh, [1963] Supp. 1 S.C.R. 912, referred to. Per Bachawat J. (i) Article 368 not only prescribes the procedure but also gives the power of amendment. It is because the power to amend is given by the article that by following its procedure the Constitution stands amended. The proviso is enacted on the assumption that the several articles mentioned in it are amendable; but for the proviso they would have been amendable under the main part. There is no other provision in the Constitution under which these articles ' can be amended. [904 D] Articles 4, 169, Fifth Schedule Part D and Sixth Schedule Para 21 empower the Parliament to make amendments to certain parts of the Constitution by law, and by, express provision such law is deemed not to be amendment for the purpose of article 368. All other provisions of the Constitution can be amended by recourse to article 368 only. No other article confers the power of amending the Constitution. [904E F] (ii) The power to amend the Constitution cannot be said to reside in article 248 and List 1, item 97 because if amendment could be made by ordinary legislative process article 368 would be meaningless. Under the residual power the Parliament has no competence to make any law with respect to any matter enumerated in Lists II and III of the 7th Schedule, but under article 368 even Lists 11 and III can be amended. Moreover a law passed by residual power is passed by virtue of article 245 and must be subject to the provisions of the Constitution so that it cannot derogate from the Constitution or amend it. Such a law would be void. [905 C P] (iii) Article 368 gives the power of amending 'this Constitution '. This Constitution means every part of the Constitution including Part ITT and article 13(2). Thus article 13(2) is also within the reach of the amending power. Instead of controlling article 368 it is controlled by that Article. [906 C D; H] (iv) The contention that a constitutional amendment under article 368 is a law within the meaning of article 13 must be rejected. The distinction between the Constitution and law is so fundamental that the Constitution is not regarded as a law or a legislative act. The Constitution mean , the Constitution as amended. An amendment made in conformity with article 368 is a part of the Constitution and is likewise not law. Save as expressly provided in articles 4, 169 Fifth Schedule Part D and Sixth Schedule para 21 no law can amend the Constitution and a law which purports to make such an amendment is void. It is for this reason that article 368 avoids all reference to law making by the Parliament. There 3 Sup. CI./67 4 774 are. also material differences between the ordinary law making procedure and the procedure under the Article. [907 B F; 908 D H] If a constitutional amendment creating a new fundamental rights and incorporating it in Part III were a law, it would not be open to the Parliament by a subsequent amendment to abrogate the new fundamental right for such an amendment would be repugnant to Part 111. But the conclusion is absurd for the body which enacted the right can surely take it away by the same process. [909 E] Marbury vs Madison, ; :2 L.Ed. 60 and Riley vs Carter, , referred to. (v) There is no conflict between articles 13(2) and 368. The two articles operate in different fields, the former in the field of law, the latter in that of constitutional amendment. [910 B] (vi) The non obstante clause in article 35 does not show that the article is not amendable. The non obstante clause is to be found also in, articles 258(1). 364, 369, 370 and 371A. No one has suggested that these articles are not amendable. [910 D] (vii) The words 'fundamental ' used in regard to rights in Part III and the word guaranteed in article 32 do not mean that the said rights cannot be amended. The constitution is never at rest; it changes with the progress of time. The scale of values in Parts III and IV is not immortal and these Parts being parts of the Constitution are not immune from amendment under article 368. [910 F G] The impugned amendments to be Constitution were made to meet the situations created by decisions of this Court and to carry out urgent agrarian reforms. If it is held that the rights, conferred by Part III cannot be abridged or taken away by constitutional amendments, all these amendments would be invalid. The Constitution makers could not have intended that the ' rights conferred by Part III could not be altered for ' giving effect to the policy of Part. Nor was it intended that defects in Part III could not be cured or that possible errors in judicial interpretations of Part III could not be rectified by constitutional amendments. [913 D E] (viii) It cannot be said that the people in exercise of their sovereign power have placed the fundamental rights beyond the reach of the amending power. The people acting through the Constituent Assembly reserved for themselves certain rights and liberties and ordained that they shalt not be curtailed by ordinary legislation. But the people by the same Constitution also authorised the Parliament to make amendments to the Constitution. In exercise of the amending power the Parliament has ample authority to, abridge or take away the fundamental rights under Part III [915 B C] Merely because of possibility of abuse, the power cannot be denied. [916 H] Webb vs Outrim, and amalgamated Society of Engineers '. The Adelaide Steamship Company Limited & Ors. ; , referred to. (ix) The main part of article 368 gives the power to amend or make changes in the Constitution. A change is not necessarily an improvement. Normally the change is made with the object of making an improvement but the experiment may fail to achieve the purpose. [916 A] Livermore vs E. G. Waite, L.R.A. 312 and National Prohibition case. ; , referred to. 77 5 (x) The best exposition of the Constitution is that which it has received from contemporaneous judicial decisions and enactments. No one in Parliament doubted the proposition that fundamental rights could be amended, when the First Amendment Act of 1951 was passed. The concept of amendability was upheld in section Krishnan & Ors. vs State of Madras ; decided in 1951, 'in Sankari Prasad decided in 1952 and Sajjan Singh decided in 1964. [918 C D] (xi) There is no provision in the Constitution for calling a convention for its revision or far submission of any proposal for amendment to the referendum. [918 G] (xii) The impugned amendments affected articles 226 and 245 only indirectly and did not require ratification under the proviso to article 168. [919 D H] In validating the impugned laws Parliament was not encroaching on .the State List. It was only validating the said laws and such constitutional validating was within its competence. [920 C E] (xiii) The abolition of Zamindari was a necessary reform. It is the First Constitution Amendment Act that made this reform possible. , No legal argument ' can restore the outmoded feudal Zamindari system. What has been done cannot be undone. The battle for the put is lost. [921 B C] If the First Fourth, Sixteenth & Seventeenth Amendments Acts are void they do not legally exist from their inception. They cannot be, valid from 1951 to 1967 and invalid thereafter. To say that they were valid in the past and Will be invalid in the future is to amend the. Constitution. Such a naked power of amendment is not given to the Judges and therefore the doctrine of prospective overruling cannot be, adopted. [921 D E] It is not possible to say that the First and Fourth Amendments though originally valid have now been validated by acquiescence. If they infringe article 13(2) they were void from their inception. If these ammendments are validated by acquiescence the Seventeenth Amendment is equally validated. B] (xv) The contention that Dr. Ambedkar did not regard the fundamental rights as amendable is not supported by the speeches in the ' Constituent Assembly. [922 C D] Per Ramaswami J.(i) In a written Constitution the amendment of the Constitution is a substantive constituent act which, is made in the exercise of the sovereign power through a predesigned procedure unconnected with ordinary legislation. The amending power in article 368 is hence sui generis and cannot be compared to the law making power of Parliament pursuant to article 246 read with Lists II and Ill. It follows that the expression 'law ' in article 13(2) cannot be construed as including an amendment of the Constitution which is achieved by Parliament in exercise of its sovereign constituent power but must mean law made by Parliament in its legislative capacity under article 246 read 'with I List I and III of the 7th Schedule. It is also clear on the same line of reasoning that law in article 13(2) cannot be construed so as to include "law ' made by Parliament under articles 4, 169, 392, 5th Schedule Part 1 and 6th Schedule para 21. The amending power of Parliament exercised under these Articles stands on the same pedestal as the constitutional amend ment made under article 368 so far as article 13(2) is concerned. [930 H 931 E] (ii) The language of article 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatsoever. 776 The use of the word 'fundamental ' to describe the rights in Part III and the word 'guaranteed ' in article 32 cannot lift the fundamental rights above the Constitution itself [931 F, H] (iii) It is unreasonable to suggest that what article 368 provides is only the mechanics of the procedure for amendment and not the power to amend. The significant fact that a separate part has been devoted in the Constitution for "amendment of the constitution" and there is only one Article in that Part shows that both the power and the procedure to amend are enacted in article 368. Again the words "the Constitution shall stand amended in accordance with the terms of the Bill" in article 368 clearly contemplate and provide for the power to amend after the requisite procedure has been followed. [932 C E] (iv) The power of constitutional amendment cannot fall within articles 246 and 248 read with item 97 of List I because it is illogical and a contradiction in terms to say that the amending power can be exercised "subject to the provisions of the Constitution" as the power under these articles must be. [933 B] (v) There is no room for an implication in the construction ofArt. If the Constitution makers wanted certain basic features to be unamendable they would have said so. [933 G H] State of West Bengal vs Union of India, [1964] 1 S.C.R. 371 and In re The Berubari Union and Exchange of Enclaves , referred to. The concepts of liberty and equality are changing and dynamic and hence the notion of permanency or immutability cannot be attached to any of the fundamental rights. The adjustment between freedom and compulsion, between the rights of individuals and the social interest and welfare must necessarily be a matter for changing needs and conditions. The proper approach is therefore to look upon the fundamental rights of the individual as conditioned by social responsibility, by the necessities of the society, by the balancing of interests and not as pre ordained and untouchable private rights. [934 E 935 C] (vi) It must not be forgotten that neither the rights in article 31 nor those in article 19 are absolute. The purposes for which fundamental rights can be regulated which are specified in cls. (2) to (6) could not have been assumed by the Constitution makers to be static and incapable of expansion. It cannot be assumed that the Constitution makers intended to forge a political strait jacket for generations to come. Today at a time when absolutes are discredited, it must not be too readily assumed that there are basic features of the Constitution which shackle the amending power and which take precedence over the general welfare of nation and the need for agrarian and social reform. [936 B 937 C] (vii) In construing article 368 it is essential to remember the nature and subject matter of that Article and to interpret it subjectae materies. The power of amendment is in point of quality an adjunct of sovereignty. It is in truth the exercise of the highest sovereign power in the State. if the amending power is an adjunct of sovereignty it does not admit of any limitations. [937 D] (viii) If the fundamental rights are unamendable and if article 368 does not include any such power it follows that the amendment of, say, article 31 by insertions of articles 31A and 31B can only be made by a violent revolution. It is doubtful if the proceedings of a new Constituent Assembly that may be called will have any legal validity for if the 777 Constitution provides its own method of amendment, any other method will be unconstitutional and void. [490 A B] George section Hawke vs Harvey C. Smith, ; and Feigenspan vs Bodine, , referred to. (ix) It is not permissible in the first place to assume that in a matter of constitutional amendment there will be abuse of power and then utilise it as a test for finding out the scope of the amending power. In the last analysis political machinery and artificial limitations will not protect the people from themselves. [941 F G] State of West Bengal vs Union of India, [1964] 1 S.C.R. 371 and American Federation of Labour vs American Sash & Door Co. ; , referred to. (x) What the impugned Act purports to do is not to make any and legislation but to protect and validate the legislative measure passed by different State legislatures. This was within the legislative competence of Parliament. [942 F] Leser vs Garnett, ; , National Prohibition Cases. ; and United States vs Sprague, ; , referred to. Articles 226 and 245. were not directly affected by the impugned Act and therefore no ratification by the State Legislatures was necessary. [942 D H; 945 D] A. K. Gopalan vs State of Madras, ; , Ram Singh & Ors. vs State of Delhi & Anr. , ; , Express Newspapers (Pvt.) Ltd. vs Union of India, , Atiabari Tea Co. Ltd. vs State of Assam, ; and Naresh Shridhar Mirajkar vs State of Maharashtra ; , referred to. (xi) Even on the assumption that the impugned Act is unconstitutional the principle of stare decisis must be applied to the present case and the plea made by the petitioners for reconsideration of Sankari Prasad 's case and Sajjan Singh 's case must be rejected. [948 D E] On the landings it was not necessary to express an opinion on the doctrine of prospective overruling of legislation.

The correct test to determine whether a contract made before the partition of India on behalf of the Governor General in Council comes within the purview of cl. (a) of article 8(1) of the Indian Independence (Rights, Property and Liabilities) Order, 1040 1947, so as to be deemed to have been made on behalf of the Dominion of Pakistan, is either (1) if the contract was made on August 15, 1947, it would have been a contract for the purposes of the Dominion of Pakistan ; or (2) if Pakistan had existed on the day the contract was made, it would be a contract for the purposes of Pakistan. Union of India vs Chinu Bhai jeshing bhai, I.L.R. 1953 Bom. 117, approved. The purpose of a contract is not to be confused with the ultimate disposal of the goods supplied thereunder since such disposal can in no way determine or modify it. Nor do the powers of control over military stores vested in the joint Defence Council by article 8(c) of the joint Defence Council Order, 1947, and saved by article 3(2) of the Indian Independence (Rights, Property and Liabilities) Order, 1947, whereby the goods might be transferred anywhere in India, make any difference and the rights and liabilities accruing from such contracts fall entirely to be adjudged by the provisions of the Indian Independence Order and not by the joint Defence Council Order. The concluding part of article 8(1) makes it quite clear that the Article makes no distinction between contracts where the consideration is either executed or executory in nature and applies equally to both. Elahi Bux vs Union of India, A.I.R. 952 Cal. 471 and Krishna Ranjait vs Union of India, A.I.R. 1954 Cal. 623, approved. Union of India vs Loke Nath, A.I.R. 1952 Cal. 140, disapproved. Consequently, in a case where the Union of India was sought to be made liable an the basis of a contract entered into on behalf of the Governor General of India in Council for the supply of fodder to the Manager, Military Farms, Lahore Cantonment, which was in Pakistan on August 15, 1947, and the trial Court found for the Union of India but the High Court, taking the view that the fodder constituted military stores under the exclusive control of the joint Defence Council on August 15, 1947, liable to be transferred anywhere in 'India, reversed that finding, the contract, even assumig that view to be correct, must be held to be one exclusively for the purposes of Pakistan as from the at date and the Union of India could not be made liable thereunder.

The respondents brought a suit for a mandatory injunction directing the removal of certain masonry structure on suit site and for a permanent injunction restraining the appellants from encroaching upon the suit property and from causing obstruction to the right of way of the residents of the village. They claimed that the suit property formed part of a public street and the appellants had no right to encroach upon it. The appellants claimed the suit property as absolute owners and as such, they were entitled to use it in any manner they pleased. The trial. Court decreed the suit. On appeal, the learned Subordinate Judge set aside the decree. On challenge of this decree by the respondents in second appeal before the High Court, the learned single Judge passed a decree in their favour. All that the learned Judge stated in his judgment was that "after a careful consideration of all the issues that arise for decision in this second appeal, I am of the opinion that the best form in which a decree could be given to the plaintiffs is in the following terms" and then he proceeded to set out the terms of his decree. On appeal by Special Leave the appellants contended that the method adopted by the learned Judge in disposing of the second appeal before him clearly shows that the judgment delivered by him cannot be sustained. The respondents, raised a preliminary objection that since the appellants did not avail themselves of the remedy available to them under the Letters Patent of the High Court either the special Leave granted by this Court should be revoked, or the appeal should be dismissed. Held: It would not be possible to lay down an unqualified rule that special leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case special leave has been granted, it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this Court under article 136, it is not possible and, indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this Court under article 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case. 50 Raruha Singh vs Achal, A.I.R. 1961, S.C. 1097, referred to. In the present case, the learned Judge passed an order which reads more like an award made by an arbitrator who, by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by the High Court in dealing with second appeals, it must obviously be corrected and the High Court must be asked to deal with the matter in a normal way in accordance with law. Therefore, the decree passed in second appeal, must be set aside on the ground that the judgment delivered by the learned Judge did not satisfy the basic and legitimate requirements of a judgment under the Code of Civil Procedure.

The petitioners, in this writ petition under article 32, sought a direction for closure of the various units of Shriram Foods & Fertilizers 820 Industries on the ground that they were hazardous to the community. During the pendency of the petition, there was escape of oleum gas from one of the units of Shriram. The Delhi Legal Aid and Advice Board and the Delhi Bar Associa tion filed applications for award of compensation to the persons who had suffered harm on account of escape of oleum gas. A Bench of three Hon 'ble Judges while permitting Shriram to restart its power plant as also other plants subject to certain conditions, referred the applications for compensa tion to a larger Bench of five Judges because issues of great constitutional importance were involved, namely, (1) What is the scope and ambit of the jurisdiction of the Supreme Court under article 32 since the applications for compensation are sought to be maintained under that Article; (2) Whether article 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest and with potential to affect the life and health of the people; and (3) What is the measure of liabil ity of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured. Does the rule in Rylands vs Fletcher, (1866 Law Report 1 Excheq uer 265) apply or is there any other principle on which the liability can be determined. Disposing of the applications, HELD: 1. The question whether a private corporation like Shriram would fall within the scope and ambit of article 12 so as to be amenable to the discipline of article 21 is left for proper and detailed consideration at a later stage if it becomes necessary to do so. [844F G] Rajasthan Electricity Board vs Mohan Lal, ; ; Sukhdev vs Bhagwat Ram, ; ; Ramanna Shetty vs International Airport Authority, ; ; Ajay Hasia vs Khalid Mujib, ; ; Som Prakash vs Union of India, ; ; Appendix I to Industrial Policy Resolution, 1948; Industries (Develop ment and Regulation) Act, 1951; Delhi Municipal Act, 1957 ; Air (Prevention and Control of Pollution) Act, 1981; Eurasian Equipment and Chemicals Ltd. vs State of West Bengal, ; ; Rasbehari Panda vs St.ate, ; ; Kas turi Lal Reddy vs State of Jammu & Kashmir, ; , referred to. 821 2. The Delhi Legal Aid and Advice Board is directed to take up the cases of all those who claim to have suffered on account of oleum gas and to file actions on their behalf in the appropriate Court for claiming compensation and the Delhi Administration is directed to provide necessary funds to the Board for the purpose. [844G H; 845A] 3.(i) Where there is a violation of a fundamental or other legal right of a person or class of persons who by reason of poverty or disability or socially or economically disadvantaged position cannot approach a Court of law for justice, it would be open to any public spirited individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing regular writ petition under article 226 in the High Court and under article 32 in this Court, but also by addressing a letter to the Court. [828B C; E F] 3.(ii) Even if a letter is addressed to an individual Judge of the Court, it should be entertained, provided of course it is by or on behalf of a person in custody or on behalf of a woman or a child or a class or deprived or disadvantaged persons. [829B C] 3.(iii) Letters addressed to individual Justices of this Court should not be rejected merely because they fail to conform to the preferred form of address nor should the Court adopt a rigid stance that no letters will be enter tained unless they are supported by an affidavit. If the Court were to insist on an affidavit as a condition of entertaining the letters the entire object and purpose of epistolary jurisdiction would be frustrated because most of the poor and disadvantaged persons will then not be able to have easy access to the Court and even the social action groups will find it difficult to approach the Court. [828H; 829B] Bandhua Mukti Morcha vs Union of India & Ors., ; ; S.P. Gupta vs Union of India, [1981] (Suppl) SCC 87 and Union for Democratic Rights & Ors. vs Union of India, [1983] 1 SCR 456, relied upon. 4.(i) Article 32 does not merely confer power on this Court to issue direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all inci dental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitu tional obligation that this Court 822 has, in the past, innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disad vantaged who are denied their basic human rights and to whom freedom and liberty have no meaning. [827F 828A] 4.(ii) The power of the Court is not only injunctive in ambit, that is, preventing the infringement of fundamental right but it is also remedial in scope and provides relief against a breach of the fundamental right already committed. [830A B] 4.(iii) The power of the Court to grant such remedial relief may include the power to award compensation in appro priate cases. The infringement of the fundamental right must be gross and patent, that is incontrovertible and exfacie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons or it should appear unjust or unduly harsh or op pressing on account of their poverty or disability or so cially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the Civil Courts. [830D; E F] 4. (iv) Ordinarily a petition under article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of Civil Court. It is only in exceptional cases that compensation may be awarded in a petition under article 32. [830F G] 4.(v) The applications for compensation in the instant writ petition are for enforcement of the fundamental right to life enshrined in article 21 of the Constitution and while dealing with such applications the Court cannot adopt a hyper technical approach which would defeat the ends of justice. The Court must look at the substance and not the form. Therefore, the instant applications for compensation are maintainable under article 32. [827A B] Bandhua Mukti Morcha vs Union of India & Ors. , ; ; S.P. Gupta vs Union of India, [1981] (Suppl.) SCR 87; Union for Democratic Rights & Ors. vs Union of India, [1983] 1 SCR 456 and Rudul Shah vs State of Bihar, AIR 1983 SC 1086, relied upon. The rule in Rylands vs Fletcher (supra) laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does 823 damage to another, he is liable to compensate for the damage caused. This rule applies only to non natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory author ity. This rule evolved in the 19th century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. In a modern industrial society with highly de veloped scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry on as part of developmental programme, the Court need not feel inhibited by this rule merely because the new law does not recognise the rule of strict and absolute liability in case of an enterprise engaged in hazardous and dangerous activi ty. [842D G] Halsburry Laws of England, Vol. 45 Para 1305, relied upon. 6.(i) Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. Law cannot afford to remain static. The Court cannot allow judicial thinking to be constricted by reference to the law as it prevails in England or in any other foreign country. Although this Court should be prepared to receive light from whatever source it comes, but it has to build up its own jurisprudence, evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly indus trialised economy. If it is found that it is necessary to construct a new principle of law to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concommitant to an industrial economy the Court should not hesitate to evolve such principles of liability merely because it has not been so done in England. [843A E] 6(ii) This Court has throughout the last few years expanded the horizon of article 12 primarily to inject respect for human rights and social conscience in corporate struc ture. The purpose of expansion has not been to destroy the raison d 'etre of creating corporations but to advance the human rights jurisprudence. The apprehension that including within the ambit of article 12 and thus subjecting to the discipline of article 21 those private corporations whose activities have the potential of affecting the life and health of the people, would deal a death blow to 824 the policy of encouraging and permitting private enterpre neurial activity is not well founded. It is through creative interpretation and bold innovation that the human rights jurisprudence has been developed in India to a remarkable extent and this forward march of the humanrights movement cannot be allowed to be halted by unfounded apprehensions expressed by status quoists. [841C E] 7.(i) An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an abso lute non delegable duty to the community to ensure that if any harm results to anyone, the enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity must be conducted with the highest standards of safety and if any harm results on account of such activity the enterprise must be absolutely liable to compensate for such harm irrespective of the fact that the enterprise had taken all reasonable care and that the harm occurred without any negligence on its part. [843E G] 7.(ii) If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate item of its overheads. The enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. [844A B] 7.(iii) The measure of compensation in such kind of cases must be co related to the magnitude and capacity of the enterprise because such compensation must have a deter rent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in carrying on of the hazardous or inherently dangerous activity by the enterprise. [844E F] 8. The historical context in which the American doctrine of State action evolved in the united States is irrelevant for the purpose of Indian Courts, especially in view of article 15(2) of the Indian Constitution. But, it is the principle behind the doctrine of State aid, control and regulation so impregnating a private activity as to give it the colour of State action which can be applied to the limited extent to which it can be Indianised and harmoniously blended with Indian constitutional 825 jurisprudence. Indian Courts are not bound by the American exposition of constitutional law. The provisions of American Constitution cannot always be applied to Indian conditions or to the provisions of Indian Constitution and whilst some of the principles adumberated by the American decisions may provide a useful guide, close adherence to those principles while applying them to the provisions of the Indian Consti tution is not to be favoured, because the social conditions in India are different. [840D H] Ramanna Shetty vs International Airport Authority, ; ; Jackson vs Metropolitan Edison Co., ; ; Air India vs Nargesh Mirza, ; and General Electric Co. Maratha vs Gilbert, ; , relied upon.

The third respondent was declared elected to the Legislative Assembly of Andhra Pradesh in the general election held in 1962. The appellant, a voter of the constituency filed an election petition challenging 214 the election of the third respondent on several grounds including corrupt practices. The petition was accompanied by the requisite number of copies which were true copies and each of them bore the signature of the petitioner. But there was no attestation at the foot of the copies that they were true copies. The third respondent raised various preliminary objections and the Election Tribunal rejected all of them. Thereupon he filed writ petition in the High Court praying for the issue of a writ quashing the Tribunal 's order. His main contention was that since the copies of the petition did not contain an attestation stating that the copies were true copies there has been a violation of the mandatory provision of section 80(3) of the Representation of the People Act, 1951. The High Court accepted the contention and issued a writ as prayed for. The present appeal was filed with special leave granted by this Court. HELD:(i) If there is a total or complete non compliance with the provisions of section 81(3) the election petition might not be "an election petition presented in accordance with the provisions of the part" withins. 80 of the Act. (ii)By the expression "copy" in section 81(3) it was meant not an exact copy but only one so true that nobody by any possibility misunderstands it not being the same as the original. Murarka vs Roop Singh ; , referred to. Noseworthy vs Overseers Buckland etc., L.R. 9 C. P. 233 and Spice vs Bacon, , distinguished. (iii)In the present case the signatures on the copies cannot be held to have been merely intended to be a copy of those on the original, since a signature in original was not needed on the copy and writing or copying out the name of the signatory would suffice. The absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy. The facts and circumstance of the case show that there has been a substantial compliance. with the requirement of section 81(3). The wider question whether section 81(3) or as part thereof is mandatory or directory is left open. The appeal is allowed. Murarka vs Roop Singh ; and Kamaraj Nadar vs Kunjer Thevar, followed.

Appeal No. 327 of 1958. Appeal from the judgment and decree dated March 6, 1956, of the Allahabad High Court in Civil Misc. Writ Petition No. 967 of 1953. WITH CIVIL APPEAL Nos. 363 to 369 of 1958. Appeals from the judgments and decrees dated February 1, 1957, of the Allahabad High Court in Civil Misc. Writ Petitions Nos. 51 (Lucknow Bench), 523, 524, 607, 632, 633 and 634 of 1955. G. section Pathak and S.P. Varma, for the appellant (In C. A. No. 327 of 1958). 424 C. B. Agarwala, G. C. Mathur and C. P. Lal, for respondents Nos. 3 to 4 (In C. A. No. 327 of 1958). H. N. Sanyal, Additional Solicitor General for, India, H. section Brar, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants (In C. As. 363 to 369 of 1958). C. B. Agarwala and. C. P. Lal, for respondent No. 1 (In C. AB. 363 to 369 of 1958). Bhawani Lal and Dharam Bhusan, for respondent No. 4 (In C. A. No. 369 of 1958). J. P. Goyal, for respondent No. 4 (In C. As. Nos. 366 and 368 of 1958). section C. Das in person, for respondent No. 4 (In C. A. No. 367 of 1958). March 17. The Judgment of the Court was delivered by WANCHOO, J. This group of appeals raises a question about the constitutionality of section 3 of the United Provinces , (U. P. XXVIII of 1947), (hereinafter referred to as the Act) and the validity of two general orders passed thereunder an March 15, 1951. The appellants are certain industrial concerns. There were disputes between them and their workmen which were referred for adjudication to industrial tribunals alleged to have, been set up under the general orders of March 15, 1951. Certain awards were passed which were taken in appeal by the present appellants to the Labour Appellate Tribunal and they failed there also. They then filed petitions under article 226 of the Constitution in the Allahabad High Court challenging the constitutionality of section 3 of the Act and the validity of the two general orders passed on March 15, 1951, by which industrial tribunals were set up. The High Court held that section 3 of the Act was constitutional. It however held that the two general orders dated March 15, 1951, were invalid; but it went on to hold that orders of reference passed in these cases were special orders as envisaged under section 3 of the Act and were therefore not invalid; in consequence it dismissed 425 the petitions. The appellants then applied for and obtained certificates for leave to appeal, and that is how the matter has come up before us. It is unnecessary to set out the facts further in respect of these appeals, as the only points argued before us are about the constitutionality of section 3 and the validity of the two general orders of 1951 and also of the references made in these cases. It is not disputed that if the appellants fail on these points their appeals in this Court must fail. We shall therefore first take up the question, of the constitutionality of section 3 of the Act. The relevant provision of section 3 in 1,951 with which we are concerned was in these terms: "If, in the opinion of the State Government it is necessary or expedient so to do for securing the public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the community, or for maintaining employment, it may, by general or special order, make provision (c) for appointing industrial courts; (d) for referring any industrial dispute for conciliation or adjudication in the manner provided in the order; (g) for any incidental or supplementary matters which appear to the State Government necessary or expedient for the purpose; of the order: The main contention of the appellants is that section 3 is unconstitutional as it delegates essential legislative function to the Government so far 'as cls. (c), (d) and (g) are concerned. Reliance in this connection is placed on the following observations of Kania C. J. in In re The (1), where he. was considering the meaning of the word "delegation": "When a legislative body passes an Act it has exercised its legislative function. The essentials of such function are the determination of the legislative policy and its formulation as a rule of conduct. (1) ; ,767 54 426 These essentials are the characteristics of a legislature by itself. . Those essentials are preserved, when the legislature specifies the basic conclusions of fact, upon ascertainment of which, from relevant data, by a designated administrative agency, it ordains that its statutory command is to be effective. The legislature having thus made its laws, it is clear that every detail for working it out and for carrying the enactments into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer. While this also is sometimes described as a delegation of legislative powers, in essence it is different from delegation of legislative power which means a determination of the legislative policy and formulation of the same as a rule of conduct. " To the same effect were the observations of Mukherjea J. in that case at p. 982: "The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as br oadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy. 'So long as a policy is laid down and a standard established by statute no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the legislation is to apply '. " What we have to see therefore is whether the legislature in this case performed its essential legislative function of determining and choosing the legislative policy and of formally enacting that policy into a binding rule of conduct. It was open to the legislature to formulate that policy as broadly and with as little or as much details as it thought proper. Thereafter once a policy is laid down and a standard established by statute, there is no question of delegation of 427 legislative power and all that remains is the making of subordinate rules within prescribed limits which may be left to selected instrumentalities. If therefore the legislature in enacting section 3 has chosen the legislative policy and has formally enacted that policy into a binding rule of conduct, it could leave the rest of ' the details to Government to prescribe by means of subordinate rules within prescribed limits. Now section 3 lays down under what conditions it would be open to Government to act under that section; it also lays down that the Government may act by passing general or special order, once those conditions are fulfilled; it also provides what will be contained in the general or special order of Government. The power given to Government is inter alia to appoint industrial courts, to refer any industrial dispute for conciliation or adjudication in the manner provided in the order, and to make any incidental or supplementary provision which may be necessary or expedient for the purposes of the order. Thus the legislature has indicated its policy and has made it a binding rule of conduct. It has also indicated when the Government shall act under section 3 and how it shall act. It has further indicated what it shall do when it acts under section 3. In these circumstances we are of the opinion that it cannot be said that the delegation made by section 3 is excessive and goes beyond permissible limits. The order to be passed by the Government under section 3 would provide, inter alia, for appointment of industrial courts, for referring any industrial dispute for conciliation or adjudication, and for incidental or supplementary matters which may be necessary or expedient. The Government will have to act within those prescribed limits when it passes, an order under section 3 which will have the force of subordinate rules. What has been urged on behalf of the appellants is that the section does not indicate what powers the industrial courts will have, what will be the qualifications of persons constituting such courts and Where they will sit; and it is urged that these are essential matters which the legislature should have provided for itself Reference in this connection was made to the observations of the Privy Council in 428 Queen vs Burah (1), which was a case of conditional legislation. The Privy Council observed there that the proper legislature having exercised its judgment as to place, person, laws and powers and the result of that judgment having been conditional legislation as to all these things, the legislation would be absolute as soon as the conditions a re fulfilled. These observations have in our opinion nothing to do with such matters of detail as the place where a court or tribunal will sit or the qualifications of persons constituting the tribunal; they refer to more fundamental matters when the words "place" and "person" are used therein. The place there must mean the area to which the legislation would apply; and so far as that is concerned, the legislature has determined the area in this case to which section 3 will apply, namely, the whole of the State of Uttar Pradesh. Similarly, the word "Person" used there refers to persons to whom legislation will apply and that has also been determined by the legislature in this case, namely, it will apply to employers and employees of industrial concerns. We have already said that the conditions under which the order will be passed have also been set out in the opening part of section 3, and how the Government will act is also set out, namely, by referring any industrial dispute that may arise for conciliation or adjudication. As to the power of the industrial court that in our opinion is also provided by section 3, namely, that an industrial court will adjudicate on the industrial dispute referred to it. Therefore all that was left to the Government to provide was to set up machinery by means of a general order which has the force of subordinate rules to carry out that legislative policy which has been enacted in broad details in section 3 and has been formally enacted into a binding rule of con. We are therefore of opinion that section 3 is not unconstitutional in any manner, for there is no delegation of essentials of legislative function thereunder. All that has been left to the Government by that section is to provide by subordinate rules for carrying out the purpose of the legislation. We must therefore reject (1) (1878) L.R. 5 I.A. 178 429 the contention that section 3 is unconstitutional on the ground that it suffers from the vice of excessive delegation. This brings us to the validity of the general order No. 615 of March 15, 1951, passed under section 3. The preamble to that order was in these terms: "In exercise of the powers conferred by clauses (b), (c), (d) and (g) of section 3 and section 8 of the U. P. , (U. P. Act No. XXVIII of 1947) and in supersession of Government order No. 781(L)/XVIII dated March 10, 1948, the Governor is pleased to make the following order, and to direct, with reference to section 19 of the said Act, that notice of this Order be given by publication in the Official Gazette. " Then follows the order setting up conciliation boards for the purpose of conciliation and industrial tribunals for the purpose of adjudication. The main contention on behalf of the appellants is that section 3 prescribes certain conditions precedent before an order could be passed thereunder and those conditions precedent must be recited in the order in order that it may be a valid exercise of the power conferred by section 3. Now there is no doubt that section 3 gives power to the State Government to make certain provisions by general or special order, if, in its opinion, it is necessary or expedient so to do for securing public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the community or for maintaining employment. The forming of such opinion is a condition precedent to the making of the order. The preamble to the second order also does not contain a recital that the State Government had formed such opinion before it made the order. It is therefore contended on behalf of the appellants that the orders were bad as the condition precedent for their formulation was not recited in the orders themselves. At a later stage the appellants also contended that in any case the orders were bad because as a fact they were passed without any satisfaction of the State Government as required under section 3, though no affidavit was filed by the appellants in this behalf in support 430 of this averment. Unfortunately, the State also filed no affidavit to show that the conditions precedent provided ins. 3 had been complied with, even though there was no recital thereof on the face of the order. We should have expected that even though the appellants did not file an affidavit in support of their case on this aspect of the matter, the State would as a matter of precaution have filed an affidavit to indicate whether the conditions precedent set out in section 3 had been complied with, considering that it was a general order which was being attacked under which a large number of adjudications must have taken place. The High Court has commented on this aspect of the matter and has said that the State Government did not file any affidavit in this connection to show that as a matter of fact the State Government was satisfied as required by section 3 even though there was no recital of that satisfaction in the order itself Taking into account, however, the importance of the matter, particularly as it must affect a large number of adjudications affecting a large number of employers and workmen, we asked the State Government if it desired to file an affidavit before us even at this stage. Thereupon the State Government filed an affidavit sworn by the Secretary to Government, Labour Department. The affidavit says that the drafts of G. O. No. 615 and the consequential order G. O. No. 671 passed on March 15, 1951, were put up before the then labour Minister. The said notifications were issued only after all the aspects of the matter were fully considered by the State Government and it had satisfied itself that it was necessary and expedient to issue the same for the purpose of securing public convenience, and maintenance of public order and supplies and services essen tial to the community and for the maintenance of employment. We accept this affidavit and it follows therefore that the satisfaction required as a condition precedent for the issue of an order under section 3 of the Act was in fact there before the order No. 615 was passed on March 15, 1951, followed by the consequential order No. 671 of the same date. In view of this the only question that we have to consider is whether 431 it is necessary that the satisfaction should be recited in the order itself and whether in the absence of such recital an order of this nature would be bad. The first contention of Shri Patliak, who appears for one of the appellants, is that where a condition precedent is laid down for a, statutory power being ' exercised it must be fulfilled before a subordinate authority can exercise such delegated power. As to this contention there can be no dispute. Further, according to Shri Pathak, there must be a recital. in the order that the condition is fulfilled before the subordinate authority acts in the exercise of such delegated power. If there is no such recital in the instrument by which the delegated power is exercised, the defect cannot be cured by an affidavit filed in the proceedings and the order would be bad ab initio. It is urged that where subordinate rules of this nature have to be made and they affect the general public or a section thereof, conditions precedent to the exercise of the power must be recited when the power is exercised in order that the public may know that the rules are legal and framed after satisfying the conditions necessary for the, purpose. Moreover, some of the subordinate rules may have to be enforced by courts and tribunals and it is necessary that courts and tribunals should also know by the presence of the recital in the order that the rules are legal and binding and have been 'framed after the condition precedent had been satisfied. In particular, it is urged that where the rules are of a general nature and are subordinate legislation the satisfaction of the condition precedent becomes a part of the legislative process so far as the subordinate authority is concerned and the defect in legislative process cannot be remedied later by affidavit. Shri C. B. Aggarwala on the other hand contends that where a statute gives power to make an order subject to certain conditions then unless the statute requires the conditions to be set out in the order it is not necessary that the conditions should appear on the face of the order and in such a case it should be presumed that the condition was satisfied unless the 432 contrary is established. He drew a distinction between those cases where the condition precedent is the subjective opinion of the subordinate ' authority and those where the statute requires a hearing and a finding. In the former case he contends that the presumption should be in favour of the opinion having been formed before the order was passed though in the latter case it may be that the order should show that there was a hearing and a finding. The power to pass an order under section 3 arises as soon as the necessary opinion required thereunder is formed. This opinion is naturally formed before the order is made. If therefore such an opinion was formed and an order was passed thereafter, the subsequent order would be a valid exercise of the power conferred by the section. The fact that in the notification which is made thereafter to publish the order, the formation of the opinion is not recited will not take away the power to make the order which had already arisen and led to the making of the order. The validity of the order therefore does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence. It would therefore follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings where challenge is made to the validity of the order, that in fact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law. The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made. There is no doubt that where a statute requires that certain delegated power may be exercised on fulfilment of certain conditions precedent, it is most desirable that the exercise should be prefaced with a recital showing that the condition had been fulfilled. But it has been held in a number of cases dealing with executive orders that even if there is some lacuna of 433 this kind, the order does not become ab initio invalid and the defect can be made good by filing an affidavit later on to show that the condition precedent was satisfied. In The State of Bombay vs Purushottam Jog Naik (1), which was a case relating to preventive detention it was held by this Court that even if the order was defective in form it was open to the State Government to prove by other means that it was validly made. In Biswabhusan Naik vs The State of Orissa (2), which was a case relating to sanction under the Prevention of Corruption Act, No. II of 1947, this Court held that "it is desirable to state the facts on the face of sanction, because when the facts are not set out in the sanction, proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged; but an omission to set out the facts in the sanction is not fatal so long as the facts can be and are proved in some other way". In a later case in The State of Bombay vs Bhanji Munji (3) which was a case of requisition under the Bombay Land Requisition Act, this Court held that it was not necessary to set out the purpose of the requisition in the order; the desirability of such a course was obvious because when it was not done proof of the pur pose must be given in other ways. But in itself an omission to set out the purpose in the order was not fatal so long as the facts were established to the satisfaction of the court in some other way. We see no difficulty in following this principle in the case of those orders also which are in the nature of subordinate legislation. Whether orders are executive or in the nature of subordinate legislation their validity depends on certain conditions precedent being satisfied. If those conditions precedent are not recited on the face of the order and the fulfilment of the conditions precedent can be established to the satisfaction of the court in the case of executive orders we do not see why that cannot be made good in the same way in the case of orders in the nature of (1) ; (2) ; (3) [1955] 1 S.C.R. 777. 55 434 subordinate legislation. We cannot accept the extreme argument of Shri Aggarwala that the mere fact that the order has been passed is sufficient to raise the presumption that conditions precedent have been satisfied, even though there is no recital in the order to that effect. Such a presumption in our opinion can only be raised when there is a recital in the order to that effect. In the absence of such recital if the order is challenged on the ground that in fact there was no satisfaction, the authority passing the order will have to satisfy the court by other means that the conditions precedent were satisfied before the order was passed. We are equally not impressed by Shri Pathak 's argu ment that if the recital is not there, the public or courts and tribunals will not know that the order was validly passed and therefore it is necessary that there must be a recital on the face of the order in such a case before it can be held to be legal. The presumption as to the regularity of public acts would apply in such a case; but as Boon as the order is challenged and it is said that it was passed without the conditions precedent being satisfied the burden would be on the authority to satisfy by other means (in the absence of recital in the order itself) that the conditions precedent had been complied with. The difference between a case where a general order contains a recital on the face of it and one where it does not contain such a recital is that in the latter case the burden is thrown on the authority making the order to satisfy the court by other means that the conditions precedent were fulfilled but in the former case the court will presume the regularity of the order including the fulfilment of the conditions precedent; and then it will be for the party challenging the legality of the order to show that the recital was not correct and that the conditions precedent were not in fact complied with by the a uthority: [see the observations of Spens C. J. in King Emperor vs Sibnath Banerjee (1), which were approved by the Privy Council in King Emperor vs Sibnath Banerjee (2)]. Nor are we impressed with the contention of Shri Pathak that conditions become a part of (1) , 42. (2) , 216 7. 435 legislative process and therefore where they are not complied with the subordinate legislation is illegal and the defect cannot be cured by an. affidavit later. It is true that such power may have to be exercised subject to certain conditions precedent but that does not assimilate the action of the subordinate executive authority to something like a legislative procedure, which must be followed before a bill becomes a law. Our conclusion therefore is that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order, (be it executive or of the character of subordinate legislation), it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it, though, as we have already remarked, it is most desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately arise and burden would be thrown on the person challenging the fact of satisfaction to show that what is recited is not correct. But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order to satisfy the court by other means that the conditions precedent were complied with. In the present case this has been done by the filing of an affidavit before us. We are therefore of opinion that the defect in the two orders of March 15, 1951, has been cured and it is clear that they were passed after the State Government was satisfied as required under section 3 of the Act. Therefore Government Orders Nos. 615 and 671 of March 15, 1951, with which we are concerned in the present appeals are valid under section 3 of the Act. It remains to consider certain cases cited by Shri Pathak in support of his contention. The first case to which reference may be made is Wichita Railroad & Light Company vs Public Utilities Commission of the State of Kansas (1). That was a case of a Commission which had to give a hearing and a finding that they were unreasonable before contract rates with a public (1) ; 436 utility company could be changed. After referring to section 13 of the Act under consideration, the U. section Supreme Court held that "a valid order of the Commission under the act must contain a finding of fact after hearing and investigation, upon which the order is founded, and that, for lack of such a finding, the order in this case was void". It rejected the argument that the lack of express finding might be supplied by implication and by reference to the averments of the petition invoking the action of the Commission and rested its decision on the principle that an express finding of unreasonableness by the Commission was indispensable under the statutes of the State. This case in our opinion is based on the provision of the statute concerned which required such a finding to be stated in the order and is no authority for the proposition that an express recital is necessary in the order in every case before a delegate can exercise the power delegated to it. The next case is Herbert Mahler vs Howard Eby That was a case dealing with deportation of aliens. The statute provided for deportation if the Secretary (Labour) after hearing finds that such aliens were undesirable residents of United States. But the Secretary made no express finding so far as the warrant for deportation disclosed it. Nor was the defect in the warrant of deportation supplied before the court. The court held that the finding was made a condition precedent to deportation and it was essential that where an executive is exercising delegated legislative power he should substantially comply with all the statutory requirements in its exercise, and that, if his making a finding is a condition precedent to this act, the fulfilment of that condition should appear in the record of the act, and reliance was placed on the case of Wichita Railroad & Light Company vs Public Utilities COmmission (2). This again was a case of a hearing and a finding required by the statute to be stated in the order and must therefore be distinguished from a case of the nature before us. It may however be added that the court did not discharge the deportees and (1) ; (2) ; 437 gave a reasonable time to the Secretary (Labour) to correct and perfect his finding on the evidence produced at the original hearing or to initiate another proceeding against them. The last case is Panama Refining Company vs A. D. Ryan(1). In that case section 9 (e) of the National Industrial Recovery Act of 1933 was itself struck down on the ground of excessive delegation, though it was further held that the executive order contained no finding and no statement of the grounds of the President 's action in enacting the prohibition. This case in our opinion is not in point so far as the matter before us is concerned, for there the section itself was struck down and in consequence the executive order passed thereunder was bound to fall. We are therefore of opinion that section 3 of the Act is constitutional so far as els. (c), (d) and (g) are concerned and orders Nos. 615 and 671 passed on March 15, 1951 are legal and valid. In the circumstances it is not necessary to consider whether the High Court was right in holding that the orders of references in these cases were special orders under section 3 and the references under those orders were therefore valid. In this view of the matter, the appeals fail and are hereby dismissed. In the circumstances we pass no order as to costs. Appeals dismissed. (1) (1935) 79 L. Ed 446.

Clauses (c), (d) and (9) of section 3 of the U. P. , empower the State Government to make provision, by general or special order, for appointing industrial courts, for referring any industrial dispute for conciliation or adjudication in the manner provided in the order and for any incidental or supplementary matters which appear to the State Government necessary or expedient for the purposes of the order. Section 3 provides that such a general or special order is to be made if, in the opinion of the State Government it is necessary or expedient to do so for securing the public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the community, or for maintaining employment. On March 15, 1951, the State Government made a general order No. 615 under these provisions but did not recite in the order its opinion as to the existence of the conditions prescribed in section 3. A reference of an industrial dispute was made under the G. O. and an award was given against the appellant. The appellant contended that the G. O. setting up the industrial tribunals was invalid as section 3 of the Act was unconstitutional as it delegated essential legislative functions to the Government so far as cls. (c), (d) and (g) were concerned and that the G. O. was bad as the condition precedent for its formulation was not recited in the order itself. The respondent filed an affidavit that Government had formed the requisite opinion before making the G. O. Held, that section 3 was not unconstitutional as there was no delegation of essential legislative functions to the Government. The legislature has indicated its policy and has made it a binding rule of conduct. Section 3 lays down the conditions in which the Government is to act; it lays down that Government may make general or special order if the conditions are satisfied; it SC6213 423 also provides what those orders are to contain. All that is left to the Government is to provide by subordinate rules for carrying out the purpose of the legislation. In re The ; , and Queen vs Burah, (1878) L.R. 5 I.A. 178, applied. Held, further, that the G. O. was valid and the failure to mention the condition precedent in the order itself was remedied by the filing of the affidavit. Where a condition precedent has to be satisfied before a subordinate authority can pass an order, (executive or in the nature of subordinate legislation), it is not necessary that the satisfaction of the condition should be recited in the order itself, unless the statute requires it. But it is desirable that it should be so mentioned for ' then the presumption that the condition was satisfied would immediately arise and the burden would be on the persons challenging the order to show that the recital is not correct. Even when the recital is not made in the order, it will not become void abinitio and only a further burden is cast on the authority passing the order to satisfy the court by other means, e. g., by filing an affidavit, that the condition precedent was satisfied. The State of Bombay vs Purushottam jog Naik, [1952] S.C.R. 674, Biswabhusan" Naik vs The State of Orissa, ; and The State of Bombay vs Bhanji Munji, [19551, S.C.R. 777, applied. King Emperor vs Sibnath Banerjee, and King Emperor vs Sibnath Banerjee,. , referred to. Wichita Railroad & Light Company vs Public Utilities Com mission of. the State of Kansas; , , Herbert Mahler vs Howard Eby, ; and Panama Refining Company vs A. D. Ryan, (1935) 79.L. Ed. 446. distinguished.

The disputes between the appellant, the management of the D.C.M. Chemical Works which was a constituent unit of the Delhi Cloth and General Mills Limited (the Company), and its workmen related, inter alia, to wage scales and gratuity. The workmen claimed that the chemical works was an integral part of the Company and, therefore, the over all position of the Company should be taken into account in fixing the wage structure. The Industrial Tribunal to which the matter was referred held that in the circumstances of the case the chemical works should be treated as an independent unit and that the wage structure etc. could not be fixed on the basis of the over. all position of the Company. The facts showed that the high the Company was a single limited concern owning and controlling various industrial units of different kinds under it. There were certain features which went to show that the various undertakings carried on by the Company had been treated as independent concerns and could not lead to the conclusion that they were one integrated whole. It was found that (i) each unit had separate books of account and separate profit and loss account, (ii) each unit had separate muster rolls for its employees, and transfers from one unit to the other usually took place with the consent of the employees concerned, (iii) each unit had its own separate wages and dearness allowance and bonus was also paid differently in each concern,(iv) where sales took place from one unit to another they were at market price and not at cost price, and (v) each unit had its own separate management. The evidence showed that throughout the course of its existence since 1942 the chemical works had made profits only in two years and that for the rest of the time it had been making losses which had to be met by the Com pany out of the profits of other units. Held, that on the facts found in the present case, there was no nexus of integration between different lines of business carried on by the Company and that the Tribunal was right in 517 its conclusion that the chemical works was ' an independent unit and that, therefore, in fixing the wage structure etc. , one had to look to the position of the chemical works only and could not integrate it with other units. The Associated Cement Companies Limited, Chaibassa Cement Works,Jhinkpani vs Their Workmen, (1960) 1 S.C.R. T, 703, Pratap Press etc. vs Workmen, , Pakshi raja Studios V. Workmen, and Hony. Secretary, South India Milloumers 'Association vs Secretary, District Coimbatore District Textile Workmen Union, (1962) (2) S.C.R. (Supp.) p. 926 relied on. Fine Knitting Co. Ltd. vs Industrial Court, Bombay, (1962) (3) S.C.R. (Supp.) p. 196, applied. Held, further, that in making a direction for the fixation of an increased fair wage on an incremental scale, the present financial condition of the concern and its stability are both necessary to be considered. There is a difference between a minimum wage and fair wage which is above the bare minimum wage. In the former case the tribunal could insist that the employer paid minimum wages even out of capital. Messrs Crown Aluminium Works vs Their Workmen, (1958) S.C.R. 651, referred to. Held, also, that it is well settled that both gratuity As well as provident fund schemes can be framed in the same concern if its financial position allows it, and that though the financial position of the chemical works had not been found to be good and stable enough to warrant an incremental wage structure, the direction given by the Tribunal for the framing of a gratuity scheme was not erroneous, as it was a long term provision and there was no reason to suppose that in the long run the appellant would not be in a flourishing condition.

The appellant was an Overseer in the Public Works Department of the Central Provinces and Berar Government. In 1947 he was suspended from service and prosecuted under section 161 I.P.C. Ultimately, on orders from the High Court, the prosecution was dropped. In a departmental enquiry also the appellant was exonerated, By an order dated December 1960, the Government held that the suspension of the appellant and the ' departmental enquiry against him "were not wholly unjustified". The order then directed that the appellant should be reinstated in service with effect from the date of the order and retired from the date, he, having already attained superannuation age on September 5, 1952 and that the entire period of absence from duty should be treated as period spent on duty under F.R. 54(5) for purposes of pension only, but that he should not be allowed any pay beyond what he had actually received or what was allowed to him, by way of subsistence allowance during the period of his suspension. The appellant filed a petition under article 226 of the Constitution contending that F. Rule 54(2) governed his case and not F. Rule 54(5). The High Court decided against him but granted him certificate to appeal to this Court. It was contended on behalf of the appellant that before deciding which rule applied to his case the Government should have given him an opportunity to be heard. The respondent urged that in passing a consequential order a hearing is not necessary. Held: An order passed under F R. 54 is not always a consequential order nor is such order necessarily a continuation of the departmental proceeding taken against the employee. [359E F] Consideration under F.R. 54 depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the Government servant must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action proposed is not afforded, as admittedly it was not done in the pre sent case, the order is liable to be struck down as invalid on the ground that it was one in breach of the principles of natural justice. State of Orissa vs Dr. (Miss) Binapani Devi and Ors. ; , relied on. [359H; 360A B] V. R. Gokhale vs State of Maharashtra, I.L.R. [1963] Bom. 537, approved.

The respondents filed a suit against the petitioner in 1954 for the possession of certain property and for mesne profits and obtained decree in their favour. The petitioner 's appeal to the High Court was dismissed in April 1959 and a petition for special leave to appeal to this Court was granted in June, 1959. Thereafter, the 7th respondent died in November 1959. The petitioner filed the present applications in October 1964 for bringing on record the legal representatives of the 7th respondent and for condonation of delay on various grounds. It was also contended on behalf of the petitioner that in view of the fact that after the preliminary decree for mesne profits had been passed, the respondents/plaintiffs brought the heirs and legal representatives of the deceased 7th respondent on record in the final decree proceedings within the time prescribed, and as the legal representatives were brought on record at one stage of the suit on the basis of the rule laid down by the Privy Council in Brij Inder Singh vs Kanshi Ram, 44 I.A. 218, no question of abatement would arise in respect of the appeal; that the final decree proceedings are a stage in the suit and the appeal is another stage in the suit and, therefore, the bringing on record of the legal representatives in one stage of the suit will enure for all stages of the suit. HELD: (i) On the facts of the case there were no sufficient grounds for condoning the delay in bringing the legal representatives of the 7th respondent on the record. (ii) The order bringing the legal representatives of the respondent on record in the final decree proceedings cannot enure for the benefit of the appeal filed against the preliminary decree. The appeal therefore abated so far as the 7th respondent was concerned. [217D] An order bringing the legal representatives of a deceased party on the record passed at the stage of an interlocutory application in a suit, or passed while an appeal is pending where the suit is subsequently remanded to the trial court or if passed while an appeal is pending against an interlocutory order in passed while an appeal the subsequent stages of the suit ' in all that suit, would enure for made at one stage of the suit be it the suit these. cases the order is final appeal against the interlocutory order or final order in the suit, for here the appeal is only a continuation of the suit. But the same legal position cannot be invoked where an order is made in a suit subsequent to the filing of an appeal at an earlier stage. Such an order cannot be Projected,backwards into the appeal that has already been filed so as to become an order in that appeal [216F 217D] Brij Inder Singh vs Kanshi Ram, 44 I.A. 218 distinguished. Shankarnaraina Saralaya vs Laxmi Hengsu, A.I.R. 1931 referred to. N)3S.C.I. 1 212

By a notification under section 4 of the West Bengal Land Deve lopment and Planning Act, 1948, the Government declared that certain plots of land belonging to the respondent were needed for the settlement of immigrants from East Pakistan and for improving living conditions in the locality. Thereafter a second notification was issued by the Government under section 6 read with section 7 of the Act declaring that the plots covered by the previous notification were needed for the same purpose as stated therein. When the Government started to erect structures on the land thus acquired the respondent moved the High Court under article 226 of the Constitution challenging the vires of the Act and impugning the legality of the proceedings taken under tile Act. The petition was heard by a judge of the High Court sitting singly who negatived all the contentions of the petitioner and discharged the rule. On appeal by the respondent under the Letters Patent, a Division Bench of the High Court held that the Act did not infringe the provisions of articles 19(i)(f) and 31(2) of the Constitution. The High Court further held that it was incumbent on the State Government to frame a development scheme after possession of the land had been taken even though the Government was entitled to deal with the land on an emergency basis under section 7 of the Act, which runs thus: " In cases of urgency, if in respect of any notified area the State Government is satisfied that the preparation of a development scheme is likely to be delayed, the State Government may, at any time, make a declaration under section 6, in respect of such notified area or any part thereof though no development scheme has either been prepared or sanctioned under section 5 ". The High Court allowed the respondent 's appeal and directed a writ of mandamus to issue to the Government requiring them to proceed to frame a development scheme in terms of the Act. On appeal by the State of West Bengal on a certificate granted by the High Court, 369 Held, that the High Court was in error in issuing the mandamus against the appellants. Section 7 of the Act com pletely dispensed with the statutory necessity of preparing a scheme of development as envisaged in section 5 of the Act in cases where the Government had taken the decision that it was necessary to proceed further with the acquisition proceedings without waiting for a development scheme. No discrimination was implicit in the provisions of section 7 of the Act and no fundamental right of the appellant was infringed either under article 14 or articles 19(1)(f) and 31(2) of the Constitution.

In the execution proceedings to satisfy a decree dated 14 10 1958 for title and recovery of possession of certain "ganju Bhogra lands" obtained by the appellant against the State, the Notified Area Council. Rourkela claimed the suit lands by an application u/o XXI Rule 58 r/w sections 37 and 38 Code of Civil Procedure. The said application was rejected. A revision against it was also dismissed with the observation that the council was free to file a regular suit for adjudication of its rights. When the appellant took out a fresh application for execution u/s 47 of the Code` of Civil Procedure, the Council which never filed any suit, and the respondent State which never appealed against the original decree, opposed the execution application on the ground that the decree became infructuous by virtue of section 3 of the orissa Merged Territories (Village offices Abolition) Act, 1963. The Executing court upheld the objection and dismissed the execution petitition. On appeal the Additional District Judge, by his order dated 2 5 1970, held that the decree was executable resulting in a second appeal to the High court by the respondent State. The High Court allowed the appeal by its order dated 4 11 1974 holding that as the decree holder was not in actual physical possession of the land, the tenure has vested in the State free from all encumbrances u/s 3 of the Act and the decree was rendered "non est". Dismissing the appeal by special leave, the Court, ^ HELD: (1) As a result of the abolition of the village office under section 3 of the OMTA, all incidents of the appellant 's service tenure, e.g., the right to hold the "bhogra land" stood extinguished by virtue of the provision of clause (b) of section 3, and ail settlements, sanads and all grants in pursuance of which the tenure was being held by the appellant, stood cancelled under section 3(c). The right of the appellant to receive emoluments was also deemed to have been terminated under Cl. (d) and by virtue of Cl. (f), his bhogra land stood resumed and "vested absolutely" in the State free from all encumbrances. Section 3 of the Act, in fact, expressly provided that this would be the result, notwithstanding anything in law, usage, settlement, grant, sanad, order or "in any judgment, decree or order of a court. " All these consequences ensued with effect from April 1, 1966 the date of coming into force of the orissa Merged territories (Village offices Abolition) Act, 1963. From that date, the appellant suffered from these and other disabilities enumerated in section 3 of the Act, the "bhogra land" in respect of which he obtained the decree dated October 14, 1958 declaring his title and upholding his right to possession was, therefore, lost to him as it vested "absolutely" in the State Government free from all encumbrances. The decree for possession also thus lost its efficacy by virtue of the express provisions of the Act and there is nothing wrong in holding that the decree was rendered incapable of execution by operation of law. [77 D H] (2) Under sec. 5 of orissa Merged Territoies ((Village offices Abolition) Act, 1963, once a "bhogra land" stood resumed and vested absolutely in the State Government to the exclusion of the village officer concerned, it was required to be "settled" with rights of occupancy thereunder. The settlement of the land contemplated by sec. S had to be with the holder of the village office and the other persons who were enjoying it (or part of it) and as his co sharers, as tenants under him or his co sharers, but that was to be so on the condition 76 that "each such person, namely, the holder of the village office and his cosharers or the tenants under the holder of the office or his co sharers was in separate and actual cultivating possession" of the land immediately before April, 1966. The words "each such person" occurring in sub section I of Sec. 5 include the holder of the village office so that in order to be eligible for settlement of the land with occupancy rights, he must also be in separate and cultivating possession of the "bhogra land" immediately before April 1, 1966. There is nothing in sub section I of Sec. 5 to justify the argument that the interpretation of the words "each such person" should be such as to exclude the holder of v the village office from its purview. [78 E, F H] State of orissa vs Rameswar Patabisi (Civil Revision Petition No. 257 of 1974) decided on 27 6 1975 (orissa High Court) over ruled; Meharabansingh and Ors. vs Nareshaingh and ors. (held not applicable). (3) The provisions of sec. 9 do not justify the argument that the village officer was entitled to continue his possession of the "bhogra land" under that section in spite of the fact that the land. stood resumed and vested absolutely in the State Government free from all encumbrances. [80 E] (4) The normal consequences arising out of the rejection of the application under o. XXI, r. 58, Civil Procedure Code and the failure to institute the suit thereafter, were rendered nugatory by the express provisions of section 3 of the orissa Merged Territories (Village offices Abolition) Act, 1963. The question of executability of the decree did not arise. [81 A B] [The Court left open to the authorities concerned to examine the question of settlement of the land under section 5(1) of the orissa Merged Territories (Village Dr offices Abolition) Act, 1963, with liberty to the village officer to rely upon such matters as may be available according to law.]

This appeal by special leave against the judgment of the High Court in writ petition, and the writ petition filed in this Court were directed against an order of detention passed by the District Magistrate against the appellant under sub section (2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The appellant was a comission agent or broker engaged in illicit business of liquor traffic at Godhara in the State of Gujarat where there is total prohibition by importing liquor from Vanswada in Rajasthan. On prior information that the appellant was about to import liquor in a truck on the night between 29th/30th December, 1986, the Gujarat police intercepted the truck and found it laden with cases containing bottles of whisky and beer, etc. It was evident from the statements of the driver and the cleaner that the appellant had purchased the liquor from Vanswada. The appellant could not be traced till 2nd February, 1987, when he was arrested but later released on bail. On 28th May, 1987, the District Magistrate, Godhara, passed an order of detention and served it alongwith the grounds of detention on the appellant on the 30th when he was taken into custody. The immediate and proximate cause for the detention was that on 29th/30th December, 1986, he had transported in bulk foreign liquor from Vanswada in Rajasthan for delivery in the State of Gujarat and indulged in anti social activities by doing illicit business of foreign liquor. The grounds furnished particulars of two other criminal cases, namely (i) Criminal Case No. 303/82 on account of recovery of 142 bottles of foreign liquor seized from his residence on 21st July, 1982, which had ended in acquittal as the prosecution witnesses turned hostile, and (ii) Criminal Case No. 150/86 relating to seizure of 24 bottles of foreign liquor from his house on 30th May, 1986, which was still pending. 288 The appellant filed the writ petition in the High Court assailing the order of detention. The High Court declined to interfere. The appellant then filed in this Court the appeal by special leave against the decision of the High Court and the writ petition, against the order of detention. Dismissing the appeal and the writ petition, the Court ^ HELD: When any person is detained in pursuance of an order made under any law of preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds of detention and afford him the earliest opportunity of making a representation against the order. The power of preventive detention underany law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by article 22(5) as construed by this Court. The Court must be circumspect in striking down an order of detention where it meets with the requirements of article 22(5) of the Constitution. [294C E; 295D E] Since preventive detention is a serious inroad on individual liberty and its justification is the prevention of inherent danger of activity prejudicial to the community, the detaining authority must be satisfied as to the sufficiency of the grounds which justify the taking of the drastic measure of preventive detention. The requirements of article 22(5) are satisfied once 'basic facts and materials ' which weighed with the detaining authority in reaching his subjective satisfaction are communicated to the detenu. There is apt to be some delay between the prejudicial activity complained of in section 3(1) of the Act and the making of an order of detention. When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determining the identity of the persons engaged in these operations. Their statements have to be recorded; their books of accounts and other related documents have to be examined. Sometimes such investigation has to be carried on for months together. The Directorate has to consider whether there is necessity in the public interest to direct the detention of a person under section 3(1) of the Act with a view to preventing him from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or from engaging in smuggling of goods, etc. The proposal has to be cleared at the highest quarter and then placed before a Screening Committee. If the Screening Committee approves, the proposal is placed before the detaining authority. The detaining authority would necessarily insist upon sufficiency of grounds which 289 would justify the preventively detaining of the person. Viewed from this prospective, the Court emphasised for the guidance of the High Courts that a distinction must be drawn between delay in making an order of detention under a law relating to preventive detention and the delay in complying with the procedural safeguards of article 22(5) of the Constitution. The rule as to unexplained delay in taking action is not inflexible. The Courts should not merely on account of delay in making an order of detention assume that the delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are 'stale ' or illusory or that there is no real nexus between the grounds and the order of detention. The decisions to the contrary by the Delhi High Court in Anil Kumar Bhasin vs Union of India & Ors., Crl. W. No. 410/86 dated 2.2.1987; Bhupinder Singh vs Union of India & Ors., ; Anwar Esmail Aibani vs Union of India & Ors., Crl. W. No. 375/86 dated 11.12.1986; Surinder Pal Singh vs M.L. Wadhawan Delhi Administration, Crl. W. No. 43/84 dated 16.4.1984 and Cases taking the same view did not lay down good law and were overruled. In this case, the appellant was arrested on 2nd February, 1987. The order of detention of the appellant was passed on 28th May, 1987. Though there was no explanation for the delay between 2nd February and 28th May, 1987, it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. [295F G; 296B H; 297A G; 298C D] It could not be said that there was lack of awareness on the part of the District Magistrate on 28th May, 1987 in passing the order of detention as he did. There was a mention in the grounds of the two criminal cases against the detenu Criminal Case No. 303/82 and Criminal Case No. 150/86 and also a recital of the fact that he was continuing his business surreptitiously and he could not be caught easily and, therefore, there was compelling necessity to detain him. [300D] The contention regarding lack of certainty and precision on the part of the detaining authority as to the real purpose of detention and that they were 'all rolled up into one ' was of little or no consequence. The purpose of detention is to prevent the appellant from acting in any manner prejudicial to the maintenance of public order. It was disputed 290 that the prejudicial activities of the appellant answered the description of a 'bootlegger ' as defined in section 2(b) and, therefore, he came within the purview of sub section (1) of section 3 of the Act by reason of sub section (4) thereof. Sub section (4) of section 3 with the explanation thereto gives an enlarged meaning to the words 'acting in any manner prejudicial to the maintenance of public order '. The district magistrate in passing the impugned order recorded his subjective satisfaction that with a view to preventing the appellant from acting in any manner prejudicial to the maintenance of public order, it was necessary to make an order that he be detained. In the accompanying grounds of detention this was the basis for the formation of his subjective satisfaction, and it was stated therein that unless the order of detention was made he would not stop his illicit liquor traffic on brokerage and, therefore, it was necessary to detain him under section 3(2) of the Act. [300E G; 301C D] The contention that there was unexpected delay in the disposal of the representation made by the appellant to the State Government was wholly misconceived. The representations were made by the appellant on 8th June, 1987. The State Government acted with promptitude and rejected them on 12th June, 1987. There was no delay. [301F G] The appeal and the writ petition failed. Khudiram Das vs State of West Bengal, ; ; Narendra Purshottam Umrao vs B.B. Gujral, ; ; Olia Mallick vs State of West Bengal, ; Golam Hussain @ Gama vs Commissioner of Police, Calcutta & Ors., ; ; Odut Ali Miah vs State of West Bengal, ; Vijay Narain Singh vs State of Bihar, [1954] 3 SCC 14; Gora vs State of West Bengal, ; ; Raj Kumar Singh vs State of Bihar & Ors., ; ; Hemlata Kantilal Shah vs State of Maharashtra, ; ; Bal Chand Bansal vs Union of India & Ors., J.T. ; Ramesh Yadav vs District magistrate, Etah, and Suraj Pal Sahu vs State of Maharashtra, ; , referred to. Anil Kumar Bhasin vs Union of India & Ors., Crl. W. No. 410/86 dated 2.2.1987; Bhupinder Singh vs Union of India & Ors., ; Anwar Esmail Alibani vs Union of India & Ors., Crl. W. No. 375/86 dated 11.12.1986; Surinder Pal Singh vs M.L. Wadhawan & Ors., Crl. W. No. 444/86 dated 9.3.1987 and Ramesh Lal vs Delhi Administration, Crl. W. No. 43/84 dated 16.4.1984, overruled.

In respect of the assessment year 1949 50, the appellant while submitting his return disclosing his turnover of the sale of oil, included therein the value of the hydrogenated oil that he sold and claimed a deduction under r. 18 of the Turnover and Assessment Rules in respect of the value of the groundnuts which had been utilised for conversion into hydrogenated oil on which he had paid tax at the point of their purchase. The sales tax authorities rejected the claim on the ground that hydrogenated groundnut oil was not groundnut oil within that rule. This view was upheld by the High Court on February 11, 1955, in the Tax Revision Case No. 120 of 1953 filed by the appellant, but, on application, the High Court granted a certificate of fitness under article 133(1) of the Constitution of India on the ground that substantial questions of law arose for decision in the case. For the assessment years 1950 51, 1951 52 and 1952 53, the same question as to whether hydrogenated groundnut oil was raised and decided against the appellant by the sales tax authorities and the High Court. The appellant then applied for a certificate of fitness under article 133(1) of the Constitution, but the High Court dismissed the petition on September 4, 1959, stating: "The judgment sought to 175 be appealed against is one of affirmance. We do not think that it involves any substantial question of law . . . nor do we regard this as a fit case for appeal to the Supreme Court. " On November 23, 1959, applications for review were filed under 0. 47, r. 1, of the Code of Civil Procedure but they were dismissed. The appellant then applied for special leave under article 136 of the Constitution against the orders dismissing the applications for review and leave was granted after notice to the respondent. When the appeal came on for hearing in the Supreme Court, the respondent raised a preliminary objection that the special leave granted to the appellant should be revoked. The grounds for revoking the special leave were not urged by the respondent at the time of the hearing of the applications under article 136, nor were they set out in the statement of case filed by the respondent under O.XVIII of the Supreme Court Rules, 1950. Held (i) that where notice is given to the respondent before the hearing of the application for grant of special leave, no objection to the maintainability of the appeal or to the granting of special leave would be permitted to be urged at any stage after the grant of it, except possibly where the ground urged happens to arise subsequent to the grant of leave or where it could not be ascertained by the respondent at that date notwithstanding the exercise of due care. (ii) that the statement in the order dated September 4, 1959, that the case did not involve any substantial question of law,was an "error apparent on the face of the record" within the meaning of 0. 47, r. 1, of the Code of Civil Procedure inasmuch as this was a case where without any elaborate argument one could point to the error and say that here was a substantial point of law which stared in the face.

Appeal No. 270 of 1955. Appeal by special leave from the judgment and decree dated March 24, 1952, of the Judicial Commissioner 's Court, Vindhya Pradesh, in First Appeal No. 16 of 1958. Appeal by special leave from the judgment and decree dated March 24, 1952, of the Judicial Commissioner 's Court, Vindhya Pradesh, in First Appeal No. 16 of 1952. L.K. Jha, A. D. Mathur and R. Patnaik, for the appellant. N.C. Chatterjee, and D. N. Mukherjee, for respondent No. 1. 1961. March 16. The Judgment of P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo and J. R. Mudholkar, JJ., was delivered by Mudholkar, J. A. K. Sarkar, J., delivered a separate Judgment, MUDHOLKAR, J. This is an appeal by Special leave and the main point involved in it is whether the Rewa State Pre emption Act, 1949, is unconstitutional on the 360 ground that it places an unreasonable restriction upon the right to acquire property enumerated in cl. (1)(f) of article 19 of the Constitution. But before we hear arguments upon this point it is necessary to dispose of the preliminary objection raised on behalf of ' the plaintiff respondent No. 1 by Mr. N. C. Chatterjee to the effect that the defendant appellant is precluded from proceeding with the appeal because subsequent to the grant. of special leave to appeal, to him he withdrew the price of pre emption which was deposited by the respondent No. 1 in the court below. He contends that by withdrawing the pre emption price the appellant must be deemed to have accepted the decree which alone entitled him to the amount and that, therefore, he cannot be heard to say that the decree is erroneous. In short, Mr. Chatterjee relies upon the doctrine that a person cannot be allowed to approbate and reprobate. In support of his contention, learned counsel has relied upon the well known case of Tinkler vs Hilder (1) and other cases which follow that decision or which proceed on the same reason as that in Tinkler 's case (1). Those decisons are: Banku Chandra Bose vs Marium Begum ( 'a); Ramendramohan Tagore vs Keshabchandra Chanda (2); Mani Ram vs Beharidas (3); section K. Veeraswami Pillai vs Kalyanasundaram Mudaliar & Ors. (4); Venkatarayudu vs Chinna (5) and Pearce vs Chaplin (6). The two English decisions just referred to and some of the Indian decisions were considered in Venkata. rayudu vs Chinna (5). Dealing with them Venkatasubba Rao, J., observed as follows: "What is the principle underlying these decisions When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, a person cannot adopt one part and repudiate another. For instance, if the Court directs that the suit shall be restored on the plaintiff paying the costs of the opposing party, (1) ; (2) Cal. (4) A.I.R. 1927 Mad. 1009. (1a) (1915] (3) A.I.R. 1955 Raj. (5) (6) ; [1846] 9 Q.B. 802: 361 there is no intention to benefit the latter, except on the terms mentioned in the order itself. If the party receives the costs, his act is tantamount to adopting the order. . According to Halsbury this rule is an application of the doctrine "that a person may not approbate and reprobate" (13 Halsbury, para 508). . . . In other words,to allow a party, who takes a benefit under such an order, to, complain against it, would be to permit a breach of faith". The view taken in the other cases proceeds on similar reasoning But what has to be noted is that in all these cases the benefit conferred by the order was something apart from the merits of the claim in, volved in these cases. What we are called upon to decide is whether the appellant by withdrawing the pre emption price can be said to have adopted the decree from which he had already preferred an appeal. The appellant did not seek to execute the decree, and indeed the decree did not confer a right upon him to sue out execution at all. The decree merely conferred a right upon the plaintiff respondent No. 1 to deposit the price of pre emption and upon his doing so, entitled him to be substituted in the sale deed in place of the vendee. The act of the appellant in withdrawing the pre emption price after it was deposited by the respondent No. 1 cannot clearly amount to, an adoption by him of the decree which he had specifically challenged in his appeal. Upon the principles underlying the aforesaid decisions a person who takes benefit under an order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety. How can it be said that a vendee in a pre emption suit against whom a decree is passed takes any "benefit" thereunder? No doubt, he has a right to be paid the pre emption price before the pre emption decree becomes effective but tile price of pre emption cannot be characterised as a benefit under the decree. It is only in the nature of compensation to the vendee for the loss of his property. 46 362 For this reason the principle of the aforesaid decision would not apply to such a decree. A question similar to the one before us had arisen in the Punjab in several cases and in particular in the judgment of Lal Chand, J., in Sundara Das vs Dhanpat Rai (1). What the court held there is that the right of appeal is not forfeited by the vendee merely because he has withdrawn the money deposited by the preemptor in whose favour a decree for pre emption has been passed. No reference is made by the learned judge to the decisions in Tinkler 's case (2) and in Pearce 's, case (3) and, therefore, this decision and other similar decisions are of little assistance in considering the "argument advanced by Mr. Chatterjee. It seems to us however, that in the absence of some statutory provision or of a well recognised principle of equity, no one can be deprived of his legal rights including a statutory right of appeal. The phrase "approbate and reprobate" is borrowed from Scotch Law where it is used to expres the principle embodied in the English doctrine of election, namely, that no party can accept and reject the same instrument (per Scrutton, L. J., in Verschures Creameries vs Hull and Netherlands Steamship. , Co.,(4). The House of Lords further pointed out in Lissenden vs C. A. V. Bosch, Ltd. (5) that the equitable doctrine of election applies only when an interest is conferred as an act of bounty by some instrument. In that case they held that the withdrawal by a workman of the compensation money deposited by the employer could not take away the statutory, right of appeal conferred upon him by the Workmen 's Compensation Act. Lord Maugham, after pointing out the limitations of the doctrine of approbate and reprobate observed towards the conclusion of his speech: "It certainly cannot be suggested that the receipt of the sum tendered in any way injured the respondents. Neither estoppel nor release in the ordinary sense was suggested. Nothing was less served than (1) (1907] P. R. No. 16. (2) ; (3) ; (1846) 9 Q.B. 802: (4) (5) [1940] A.C 412. 363 the principles either of equity or of justice." (pp. 421 422). Lord Wright agreed with Lord Maugham and Lord Atkin and declined to apply the "formula" to the appeal before the House because there was no question of the appellant having alternative or mutually exercisable right to choose from. No doubt, as pointed out by Lord At that in a conceivable case the receipt of a remedy under a judgment may be made in such circumstances as to preclude an appeal. But he did not think it necessary to discuss in what circumstance the statutory right of appeal may be lost and added: "I only venture to say that when such cases have to be considered it may be found difficult to apply this doctrine of election to cases where the only right in existence is that determined by the judgment: and the only conflicting right is the statutory right to seek to set aside or amend that judgment: and that the true solution may be found in the words of Lord Blanesburgh in Moore vs Cunard Steamship Co. (1)". According to Lord Blanesburgh when an order appealed against and later set aside, has been acted upon in the meantime "any mischief so done is undone" by an appropriate order. Thus the only question which has to be considered is whether the party appealing has so conducted himself as to make restitution impossible or inequitable. Thus, according to the House of Lords it is to cases in which a party has so conducted himself as to make restitution impossible or inequitable that the principle on which the decision in Tinkler 's case (2), is. based, may apply. Referring to this case and three other similar cases Lord Atkin observed: "In any case they form very flimsy foundation for such a wide reaching principle applicable to all appeals Its was asserted in this case: and if they did lead to that result should not be followed. 428 429). (3) The Lissenden case has thus in clear terms (1) (2)(1849) 4 Ex 187; ; (3) 364 indicated what the limitations of the Scotch doctrine are. If, therefore, what was laid down in this case is the common law of England according to its highest judicial tribunal, it is only that law which the courts in this country may apply on the principles of natural justice and not what was supposed to be the common law in certain earlier decisions. It seems to us that a statutory right of appeal cannot be presumed to have come to an end because the appellant has in the meantime abided by or taken advantage of something done by the opponent under the decree and there is no justification for extending the rule in Tinkler 's case (1) to cases like the present. In our judgment it must be limited only to those cases where a person has elected to take a benefit otherwise than on the merits of the claim in the lis under an order to which benefit he could not have been entitled except for the order. Here the appellant, by withdrawing the preemption price has not taken a benefit de hors the merits. Besides, this is not a case where restitu tion is impossible or inequitable. Further. it seems to us that the existence of a choice between two rights is also one of the conditions necessary for the applicability of the doctrine of approbate and reprobate. In the case before us there was no such choice before the appellant and, therefore, his act in withdrawing the preemption price cannot preclude him for continuing his appeal. We., therefore, overrule the preliminary objection. The appeal will now be set down for hearing on merits. The costs of this hearing will be costs in the appeal. SARKAR, J. It seems to me that the objection to the maintainability of this appeal must succeed. The appellant having taken the benefit of the decree cannot now challenge its validity. The decree was passed in a suit for preemption brought in May, 1951 by the respondent Baijnath, whom I will call the respondent. against the appellant, the purchaser of certain property and the vendors, the other respondents who have not appeared in this appeal. The suit was dismissed by the trial Court but (1) ; 365 on appeal it was decreed by the Judicial Commissioner Vindhya Pradesh, on March 24,1952. The learned Judicial Commissioner held that the respondent had the right of pre emption and that the purchase money payable by him to the appellant for preemption of the property, *as Rs. 3,000 and directed the respondent to pay this sum into court within four months. The respondent duly paid this sum into court. The appellant obtained special, leave from this Court to appeal from the judgment of the learned Judicial Commissioner and thereafter withdrew from court the amount paid in by the respondent. The present appeal arises under this leave. The decree that was drawn up only stated that the appeal was allowed with costs and the period of grace was four months. In view of Or. XX, r. 14, of the Code of Civil Procedure, the decree, in spite of its informality, must be understood as providing that upon the respondent paying the amount found payable as purchase money into court within the time fixed, the appellant would deliver possession of the property to him and his title to it would be deemed to have accrued from the date of the payment into court and that, in default of such payment the suit would stand dismissed with costs. Now, there is not the slightest doubt that in with. drawing the money from court the appellant had acted entirely on his free choice; he had in no way been compelled to do so, nor been induced thereto by any act of the respondent. The respondent had done nothing to put the decree in execution and obtain possession of the property from the appellant. The appellant need not have withdrawn the money if he so liked and that would not in the least have prejudiced his interest. He has all along been in possession of the property since he purchased it on June 7, 1950 and he has been in enjoymeint of the money also sine( he withdrew it from court on November 14, 1953. It seems to me that on these facts the appellant cannot proceed with the appeal. He cannot be permitted to pursue inconsistent courses of conduct. By withdrawing the money, he has of his free choice, 366 adopted the decree and must, therefore, be precluded from challenging its validity. He had no right to the money excepting such as the decree gave him. Having exercised that right he cannot be heard to say that the decree was invalid and, therefore, the right which he had exercised, had never existed. The rule is well established in England as well as in our country, that a litigant is not permitted such inconsistent courses of conduct and, so far as I am aware, never been departed from. As early as 1849 in Tinkler vs Hilder (1), Pollock, C. B., in dealing with a rule to set aside an order said, "It might be discharged simply on this narrow ground, that, under the circumstances of this case, the party applying to set aside the order in question in point of fact has adopted it by taking something under it". In King vs Simmonds (2) and Pearce vs Chaplin (3) the same line of reasoning was adopted. It is true that in these cases the orders were said to have been adopted because costs, for the payment of which they had provided, had been received. It is also true that the orders were not such to which the parties directed to pay the costs, were entitled as a matter of right. But all these do not seem to me to make any difference. The question is, are the circumstances such that it would be inconsistent conduct to accept a benefit under an order and then to challenge it? I should suppose that for this purpose costs are as much benefit as anything else given by the order. Likewise when the orders were discretionary or such to which there was no right ex debito justitiae, there would be no reason to say that there could be no inconsistency if they were challenged after benefits under them had been accepted. For deciding such inconsistency, I am unable to discover that the discretionary nature of the order has any materiality. Coming to more recent times, we get the case of Dexters Ld. vs Hill Crest Oil Co. Ld. There a person, who had taken money under an award made in a commercial arbitration in accordance with which a (1) ; (3) (1846) 9 Q B 802. (2) ; (4) [1926] 1 K.B 348. 367 judgment had been entered in a special case stated to court, was held precluded from appealing from that judgment. This, it will be noticed, was not a case where an order was considered to have been adopted because of receipt of costs given by it but because of the receipt of the sum of money which was claimed and which was given by the award. Scrutton, L. J., observed, (p. 358) "It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right". I will conclude the reference to the English authorities by reading what Lord Russel of Killowen said in Evans vs Bartlam (1), "a man having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit". Of the cases on the point in our country I may refer to Manilal Guzrati vs Harendra Lal (2), Banku Chandra Bose vs Marium Begum (3), Humrybux Deora vs Johurmull Bhotoria (4) and Venkatarayudu vs Chinna (5). Hurrybux Deora 's case (4) was an appeal from a decree in a suit for the redemption of a mortgage. The plaintiff had accepted the amount found by the decree passed by the trial Court to be due to him from the mortgagee in possession and receipt of the income of the mortgaged property, and had thereafter filed the appeal asking that he was entitled to more. Rankin, C. J., who delivered the judgment of the Court, held that there was no inconsistency in the conduct of the appellant and the rule 1 had so long been discussing had, therefore, no application. This was plainly right. The appellant had accepted the decree passed and in the appeal did not challenge its correctness so far as it went but only contended that it had not gone far enough. As has been said, he was not blowing hot and cold but only blowing hotter: see per Greer, L.J., in Mills vs Duckworth (6). Referring to King vs Simmonds (7), Pearce vs Chaplin (8) and Tinkler vs Hilder (9) which I have earlier (1) , 483.(2) (3) (5) 32 1. (7) ; (1846) 9 Q.B. 802. (9) (1849) 4 Exc 1187: ; 368 cited, Rankin, C.J., said (p. 714) that they "are clearly inapplicable except upon the basis that the Defendant is seeking to challenge an order after accepting the benefit of a term or condition imposed upon the Opposite, Party at whose instance the order was made". He was of the view that this basis did not exist in the case which he had before him. Rankin, C.J., also referred to another old English case, namely, Kennard vs Harris (1). , There, a rule to set aside an award of an arbitrator was discharged when it was shown that the party who had obtained the rule had accepted the costs of the reference and the award. Rankin, C.J., said with reference to this case that (p. 713), "A person who accepts costs payable under an award or any other sum of money given to him by an award is held to be precluded from asking the Court to set aside the award". He however also observed that An award is bad unless it deals with the whole matter submitted and prima facie cannot be set aside in part only". It may be that Rankin, C.J., was making a distinction, which is obviously correct, between an award which can be set aside only as a whole because it is one and indivisible and a judgment which might be in severable parts in which case, the adoption of a part by a party would not preclude him from challenging another part which was independent. Rankin, C.J., did not think, and if I may say so with respect, correctly, that the principle of Kennard vs Harris (1) had any application to the facts of the case before him, for, there no part of the judgment was sought to be challenged by the appeal, excepting perhaps an independent part which by implication rejected the appellant 's claim to a larger sum. In Venkatarayudu 's case (2), Venkatasubba Rao, J., after discussing various cases, to some of which I have referred, observed, (p. 141) "What is the principle underlying these decisions? When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, (1) ; (1824) 2 B. & C. 80; (2) 369 a person cannot adopt one part and repudiate another". It seems to me beyond doubt that the principle of these cases is applicable to the facts of the present appeal. Here we have a decree which is one and indivisible. The effect of it is that upon the respondent paying the money into court he would be entitled to the property and to obtain possession of it and the appellant would be entitled to withdraw the money. The appellant has no right to the money whatsoever independent of the decree; he had no right to compel the respondent to purchase the property from him on payment of a price. Indeed the appellant had been contending that the respondent was not entitled to purchase the property from him by paying the price. The appellant could have drawn out the money only on the basis that the decree had been properly passed. Therefore, by withdrawing the money he adopted its correctness and cannot now say it is incorrect. It seems to me that the observation of Venkatasubba Rao, J., in Venkatarayudu 's case (1) (P. 141) that " to allow a party, who takes a benefit under such an order, to complain against it, would be to permit a breach of faith", would apply fully to the conduct of the appellant. So would the observations of Rankin, C. J., in Hurrybux Deora 's case (2) on King vs Simmonds (3), Pearce vs Chaplin (4) and Tinkler vs Hilder (5). The present is a case where the appellant was seeking to challenge an order after accepting the benefit of a term or condition, that is to say, as to the payment of money into court, imposed upon the respondent at whose instance the order was made; that the obligation to pay money was a term or condition 'imposed upon the respondent is manifest because the decree provided that if the money was not paid, the suit would stand dismissed with costs. Again the judgment in the present case is like an award for it is one whole and cannot be set aside in parts. Therefore what (1) (3) ; (2) (4) (1846) 9 Q.B. 802. (5) ; 47 370 Rankin, C. J., said in regard to Kennard vs Harris which turned on an award, namely, that a person who accepts costs or a sum of money given to him by an award cannot ask to have it set aside, would also be applicable. I find it impossible to conceive that this judgment consists of several parts or that such parts are severable. The learned counsel for the appellant was able to refer us to only one case in support of his contention that the appeal could be proceeded with and that was Sunder Das vs Dhanpat Rai (2). That was also a case of pre emption. There, however, the plaintiff who had obtained the decree for pre emption in his favour, had executed that decree and obtained possession of the property concerned. The defendant appealed from the decree but was unsuccessful. in the first appellate court. He then appealed to the Chief Court at Lahore and when the appeal was pending there, withdrew the purchase money paid into court by the plaintiff under the decree of the trial Court. The Chief Court held that this (lid not preclude the defendant from proceeding with the appeal before it. The facts of that case were substantially different from those before us. It may be said that the defendant having been compelled to part with the property, was justified in withdrawing of the money from the court and that a withdrawal in such circumstances did not amount to an adoption of the decree. That cannot be said in the present case. Whether on the facts, Sunder Das 's case (2) was rightly decided or not, is not a matter on which I feel called upon to express any opinion. If however that case intended to lay down a principle which would warrant the appellant on the facts of the case in band in proceeding_ with this appeal, I am unable to agree with it. It would then be in conflict with all the authorities on the point and none of these was noticed in the judgment, in that case. I do not think that Sunder Das 's case (2) is of sufficient authority to warrant a departure from the principle uniformly followed by the courts. (1) ; (2) 1907 P.R. No 16. 371 It is necessary, however, before I conclude, to refer to the comparatively recent case of Lissenden vs C. A. V. Bosch Ltd. (1). That was a case in which a workman who had been awarded compensation for partial incapacity up to a certain date accepted the compensation so awarded and thereafter preferred an appeal claiming that compensation should have been awarded to him beyond that date and so long as he should be incapacitated. The Court of Appeal feeling itself bound by its earlier decision in Johnson vs Newton Fire Extinguisher Company (2) had held, somewhat reluctantly, that the workman having accepted money under the award could not challenge its validity by an appeal. In Johnson 's case (2), it appears to have been held that a workman could not. accept part of an award and claim to amend another part for that would be an attempt to "approbate and reprobate" the award and this could not be allowed. The House of Lords in Lissenden 's case (1) held that Johnson 's case (2) had been wrongly decided and that the workman before it was entitled to proceed with the appeal. The reason for, this view was that acceptance by the workman of what had been found to be due to him does not operate to prevent him from appealing for some further relief. The case therefore was the same as that before Rankin, C. J., in Hurrybux Deora vs Johurmull Bhotoria (3). The substance of the decision of the House of Lords was that there was no inconsistency between the appeal and the adoption of the award. That however cannot be said in the case before us now. The House of Lords also pointed out that the Court of Appeal had misunderstood the doctrine against " approbating and reprobating". It was said that that was a doctrine of Scottish law which in England had been held by High authorities to be equivalent to the equitable principle of election. It was observed that that equitable principle depended for its application on the intention of the executant of an instrument and was, therefore, not applicable to a case like the (1) [1940) A.C. 412. (2) (3) 372 one the House of Lords had before it. It was also pointed out that the common law principle of election had no application either for, it depended on the h existence of two rights or remedies, one alone of which could be chosen and in the case of an appeal there were no two rights or remedies. I do not think the observations of the House of Lords on the doctrine against "approbating and reprobating" affect the question before us. All the learned Judges who delivered opinions in the case, including Lord Atkin, who expressed himself with some reservation, accepted tile position that a litigant may lose his right of appeal by reason of his conduct after the judgment or award for, by such conduct he may be estopped from appealing or may be considered in equity or at law as having released his right of appeal: see p. 420,429, 430 and 434. Lissenden 's case (1) does not, therefore, in my view throw any doubt on the principle that a litigant may be precluded from proceeding with an appeal if that would be inconsistent with his previous conduct in regard to the decree challenged by the appeal. It seems to me that the courts in England have taken the same view of Lissenden 's case (1). In Baxter vs Eckersley (2) the Court of Appeal expressly approved of the principle laid down in Dexter 's case(3). In Banque Des Marchands De Moscou vs Kindersley (4) Evershed, M. R., referring to the phrases "approbating and reprobating" and "blowing hot and blowing cold" said at p. 119, "These phrases must be taken to express, first, that the party in question is to be treated as having made an election from which he cannot resile, and, second, that he will not be regarded, at least in a case such as the present, as having so elected unless lie has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his pre sent action is inconsistent". These two cases, it will be observed, were decided after Lissenden 's case (1). All these authorities leave no doubt in my mind that the rule preventing inconsistent conduct is firmly (1) (3) (2) (4) 373 established. I think, for the reasons earlier mentioned, that the rule is properly applicable in the present case and the appellant cannot be allowed to proceed with the appeal. I wish however to make it clear that the applicability of the rule will depend on the facts of each case; it will depend on whether there has been actual inconsistency. I have found that there has been adoption in the present case and the prosecution of the appeal will result in the conduct of the appellant becoming inconsistent. That is, all that I decide. Before leaving the case, I think I ought to observe that the fact that the appellant had withdrawn the money after he had obtained leave from this Court makes no difference to the applicability of the principle. It was by such withdrawal that he adopted the decree and thereafter he is precluded from proceeding with the appeal. There is as much inconsistency in the present case as there would have been, if the appellant had withdrawn the money before he had obtained the leave. For these reasons I would dismiss the appeal with costs. By COURT: In accordance with the majority judgment, the preliminary objection is overruled. The appeal will now be set down for hearing on merits. Preliminary objection overruled. Appeal set down for hearing.

In a suit instituted by the respondent for the enforcement of the right of pre emption against the appellant, the trial court dismissed the suit but on appeal a decree was passed on March 24, 1952 under which upon the respondent paying the amount found payable as purchase money into court within four months, his title to the property would be deemed to have accrued from the date of the payment into court. The appellant applied for special leave to appeal to the Supreme Court and leave was granted on May 20, 1953, confining the appeal to the constitutional point raised therein, that the Rewa State Pre emption Act, 1949, was unconstitutional on the ground that it placed an unreasonable restriction upon the right to acquire property enumerated in article 19(1)(f) of the Constitution of India. In the meantime, the respondent deposited the price of pre emption into court within the time fixed in the decree and on November 14, 1953, the appellant withdrew the money from court. The appeal to the Supreme Court came on for hearing in due course and the question arose on a preliminary objection raised by the respondent whetber the appellant was precluded from proceeding with the appeal on the ground that by withdrawing the pre emption price he must be deemed to have accepted the decree and that he could not, therefore, be heard to say that the decree was erroneous. The respondent relied upon the doctrine that a person cannot be allowed to approbate and reprobate. Held (Sarkar, J., dissenting), that the act of the appellant in withdrawing the pre emption price did not amount to an adoption by him of the decree which he had specifically challenged in his appeal and, in the absence of some statutory provision or of a well recognised principle of equity, he could not be deprived of his statutory right of appeal. Accordingly, the appellant was not precluded from proceeding ;with the appeal. The principle that a person who takes benefit under an order cannot repudiate that part of the order which is detrimental to him, on the ground that he cannot be allowed to approbate and reprobate, is applicable only to cases where the 359 benefit conferred by the order is something apart from the merits of the claim involved. A vendee in a pre emption suit against whom a decree is passed has a right to be paid the pre emption price before the decree becomes effective, but the price cannot be characterised as a benefit under the decree; it is only in the nature of compensation to the vendee for the loss of his property. Tinkler vs Hilder, ; , VerschuYes Creameries vs Hull and Netherlands Steamship CO., , Lissenden vs C. A. V. Bosch Ltd., , Venkatarayudu vs Chinna, and Sundra Das vs Dhanpat Rai, 1907 P.R. No. 16, considered. Per Sarkar, J. The decree was one and indivisible and the appellant had no right to the money whatsoever independent of the decree and he could have drawn out the money only on the basis that the decree had been properly passed. By withdrawing the money he adopted its correctness and cannot now say it is incorrect. The prosecution of the appeal will result in the conduct of the appellant becoming inconsistent and he cannot, therefore, be allowed to proceed with the appeal. Case law reviewed.

The appellant, a Sub ordinate Judge was compulsorily retired under the Government of India Decision No. 23. below Fundamental Rule No. 56 though the said rule was later substituted as FR 56(j). A writ petition assailing the order of compulsory retirement as in violation of Article 311 was dismissed by the Judicial Commissioner for Manipur. On appeal by certificate the appellant contended that the impugned order of compulsory retirement was null and void ab initio because: (1) Fundamental Rule 56 at the material time contained no reservation of any power in the appointing authority to retire him without any reason on three month 's notice after the age of 55 years: (2) the impugned order was made expressly under a non subsisting authority viz., Gov ernment of India Decision No. 23 below Fundamental Rule 56, at the time ' of impugned notice and (3) the Government of India Decision not having been incorporated in Fundamental Rule 56, it amounted to a mere executive instruction and not a rule within the meaning of Article 309. Dismissing the appeal, the Court HELD: (1) Compulsory retirement is not a punishment, there being no stigma in it. [1024 D] Tara Singh etc. vs State of Rajasthan and Ors. ; reiterated. (2) If power can be traced to a valid power the fact that 1he power is purported to have been exercised under non existing power does not invalidate the exercise of the power. In the .present case, the affidavit evidence estab lishes that the Commissioner exercised his powers and was of the opinion that it was in public interest to make the order of compulsory retirement. [1024 E 1025 A] L. Hazari Mal Kuthiala vs Income tax Officer, special circle Ambala Cantt. and Anr. I.T.R. 12 and Hukumchand Mills Ltd. vs State of Madhya Bharath and Anr. ; I.T.R. 583 followed. (3) The absence of recital in the order of compulsory retirement that it was made "in public interest" is not fatal as long as power to make compulsory retirement in public interest is there and the power, in fact, is shown in the facts and circumstances of the case, to have been exer cised in public interest. Whether the, order is correct or not is not to be gone into by the Court. In the instant case, the Government affidavit is that the Chief Commission er made the order because he was of the opinion. that it was in public interest to do so. The order is made bona fide and nothing us on the record to show that the affidavit is unbelievable. [1025 A B, E G] Union of India vs J. N. Sinha [1971] 1 SCR 791 applied. Butail vs Union of India & Ors. referred to. 1023

In the State of Madhya Pradesh vs V. P. Sharma, ; this Court held that once a declaration under section 6 of the Land Acquisition Act 1894 was made the notification under section 4(1) of the Act was exhausted and there could be no successive notifications under section 6 with respect to land in a locality specified in one notification under section 4(1). Relying on the above judgment the present writ petitions were filed in order to challenge successive notifications under section 6 following a single notification under section 4(1) in respect of land belonging to them. Meanwhile in order to meet the situation created by the judgment in V. P. Sharma 's case the President of India promulgated the Land Acquisition (Amendment and Validation) Ordinance (1 of 1967). The Ordinance was later followed by the Land Acquisition (Amendment and Validation) Act 1967. Section 2 of this Act purported to amend section 5 A of the principal Act by allowing the making of more than one report in respect of land which had been notified under section 4(1). Section 3 purported to amend section 6 of the principal Act by empowering different declarations to be made from time to time in respect of different parcels of land covered by the same notification under section 4(1) irrespective of whether one report or different reports had been made under section 5 A sub section Section 4 of the Act purported to validate all acquisitions of land made or purporting to have been made under the principal Act before the commencement of the ordinance namely January 10, 1967, notwithstanding that more than one declaration under section 6 had been made in pursuance of the same notification under section 4(1), and notwithstanding any judgment, decree or order of any court to the contrary. The Amending Act also laid down time limits for declarations under section 6 of the principal Act after the notification under s 4(1), had been issued in respect of notifications made after January 20. 1967 the time limit was three years; in respect of notification made before that date the time limit was to be two years after that date. Provision was also made for payment of interest on compensation due to persons in respect of whose land declarations under section 6 had been delayed beyond a specified period; no interest was however, to be paid to those to whom compensation had already been paid. The petitioners by leave of Court amended their petitions to attack the validity of the. aforesaid Validating Act on the following main grounds : (1) By seeking to validate past transactions of a kind which had been declared invalid by this Court without retrospectively changing the substantive law under which the past transactions had been effected the legislature was encroaching over the domain of the judicial power vested by the Constitution in the judiciary exclusively; (ii) The Validating Act did not L4Sup. C.I.1684 42 revive the notification under section 4 which had become exhausted after the first declaration under section 6 and no acquisition following thereafter could be made without a fresh notification under section 4; (iii) The Validating Act violated article 31(2) of the Constitution inasmuch as it purported to authorise acquisitions without fresh notifications under section 4 thereby allowing compensation to be paid on the basis of the said . notification under section 4 without allowing for increase in the value of land thereafter; (iv) The Validating Act violated article 14 of the Constitution in various ways. HELD: Per Wanchoo C.J., Bachawat & Mitter, JJ. (i) The American doctrine of well defined separation of legislative and judicial powers has no application to India and it cannot be said that an Indian Statute which seeks to validate invalid actions ' is bad if the invalidity has already been pronounced upon by a court of law. A.K. Gopalan vs State, ; , referred to. (ii) The absence of a provision in the amending Act to give retrospective operation to section 3 of the Act does not affect the validity of section 4. It was open to Parliament to adopt either course e.g. (a) to provide expressly for the retrospective operation of section 3, or, (b) to lay down that no acquisition purporting to have been made and no action taken before the Land Acquisition (Amendment and Validation) Ordinance, 1967 shall be deemed to be invalid or even to have become invalid because, inter alia, of the making of more than one declaration under section 6 of the Land Acquisition Act, notwithstanding any judgment decree or order to the contrary. Parliament was competent to validate such actions and transactions, its power in that behalf being only circumscribed by appropriate entries in the Lists of the Seventh Schedule and the fundamental rights set forth in Part III of the Constitution. Section 4 of the Amending Act being within the legislative competence of Parliament, the provisions thereof are binding on all courts of law notwithstanding judgments, orders or decrees to the contrary rendered or made in the past. [67 C F] Case law referred to. (iii) The impugned Act does not violate article 31(2). The Act does not in express terms enact any law which directly affects compensation payable in respect of property acquired nor does it lay down any principles different from those which were already in the Land Acquisition Act of 1894. After the amendment of the Constitution in 1955 the question of compensation is not justiciable and it is enough if the law provides that a person expropriated must be given compensation for his property or lays down the principles therefor. [67 G H] The Legislature might well have provided in the Act of 1894 that it would be open to the appropriate Government after issuing a notification under section 4 to consider objections raised under section 5 with regard to the different localities from time to time enabling different reports to fie made under section 5 A with consequent adjustments in section 6 providing for declarations to be made as and when each report under section 5A was considered. By the validation of action taken under section 6 more than once in respect of a single notification under section 4, the original scheme of acquisition is not altered. The public purpose behind the notification remains the same. It is not as if a different public purpose and acquisition of land for such purpose were being interploated by means of the Validating Act. Only the shortcoming in the Act as to want to provision to enable more than one decla ration under section 6 are being removed. [68 D F] 43 The date of valuation under the Validation Act is that of the issue of notification under section 4(1), a principle which has held the field since 1923 Legislative competence to acquire land under the provisions of the Land Acquisition Act cannot be challenged because of constant appreciation of land values all over the country due to the prevalent abnormal inflation. There must be some time lag between the commencement and conclusion of land acquisition proceedings and in principle there is nothing wrong in accepting the said commencement as the date of valuation. Sections 4 and 23 of the Land Acquisition Act are protected by article 31(5) (a) of the Constitution. Only sections 5 A and 6 of the Act have been amended. The amendment does not alter the principle of compensation fixed by the Act nor contravene article 31 of the Constitution in any way. [69 G 70 B] It cannot be said of the Validating Act that it was fixing an arbitrary date for the valuation of the property which bore no relation to the acquisition proceedings. The population in Indian cities especially in the capital is ever increasing. The State has to plan the development of cities and it is not possible to take up all schemes in all directions at the same time. The resources of the State may not be sufficient to acquire all the area required by a scheme at the same time. Of necessity the area under the proposed acquisition would have to be carved into blocks and the development of one or more blocks at a time could only be taken up in consonance with the resources available. Even contiguous blocks could be developed gradually and systematically. In view of such factors it cannot be said that the principle of fixing compensation on the basis of the price prevailing on the date of the notification under section 4(1) of the Land Acquisition Act was not a relevant principle which satisfied the requirements of article 31(2).[70 C 71 H] The State of West Bengal vs Mrs. Bela Banerjee, ; , State of Madras vs D. Namasivaya Mudaliar, ; and, P.V. Mudaliar vs Deputy Collector, ; , considered. (iv) The validating Act was not violative of article 14. Whenever an Amending Act is passed there is bound to be some difference in treatment between transactions which have already taken place and those which are to take place in the future. That by itself will not attract the operation of article 14. Again, even with respect to transactions which may be completed in the future, a reasonable classification will not be struck down. [72 C] Jalan Trading Co. vs Mazdoor Union, ; , relied on. It is not possible to say that because the Legislature thought of improving upon the Act of 1894 by prescribing certain limits of time as from 20th January 1967 the difference in treatment in cases covered by the notification before the said date and after the said date denies equal protection of laws because the transactions are not similarly circumstanced. Some of the notifications issued under section 4 must have been made even more than 3 years before 20th January, 1967 and such cases obviously could not be treated in the same manner 'as notifications issued after that date. article 14 does not strike at differentiation caused by the enactment of a law between transactions governed thereby and those which are not so governed. [73 H 74 B] Hatisingh Manufacturing Co., Ltd. vs Union of India, ; No grievance can be made because interest is denied to persons who have already taken the compensation. Even here the classification is not unreasonable and cannot be said to be unrelated to the object of the Act. [74 E F] 44 Per Shelat and Vaidialingam, JJ. (dissenting) By validating the acquisition orders and declarations made on the basis of an exhausted notification under section 4 the impugned Act saves government from having to issue a fresh notification and having to pay compensation calculated on the market value as on the date of such fresh notification and depriving the expropriated owner of the benefit of the appreciated value in the meantime. The real object of section 4 of the impugned Act is thus to save the State from having to compensate for such appreciation under the device of validating all that is done under an exhausted section 4 notification and thus in reality fixing an anterior date i.e. the date of such a dead section 4 notification for fixing the compensation. The impugned Act thus suffers from a two fold vice : (i) that it purports to validate acquisitions orders and notifications without resuscicating the notification under section 4 by any legislative provision on the basis of which alone the validated acquisitions, orders and declarations can properly be sustained and (ii) that its provisions are in derogation of article 31(2) as interpreted by this Court by fixing compensation on the basis of value on the date of notifications under section 4 which had become exhausted and for keeping them alive no legislative provision is to be found in the impugned Act. It is therefore not possible to agree with the view that the purpose of section 4 is to fill the lacuna pointed out in Sharma 's case nor with the view that it raises a question of adequacy of compensation. The section under the guise of validating the acquisitions, orders and notifications camouflages the real object of enabling acquisitions by paying compensation on the basis of values frozen by notifications under s 4 which by part acquisitions thereunder had lost their efficacy and therefore required the rest of the land to be notified afresh and paying compensation on the date of such fresh notifications. The fact that neither section 4 nor section 23 of the principal Act are altered does not make any difference. [89 D H, 85 H] Section 4 of the Amending Act must therefore be struck down as invalid. [90 A]

These appeals by Special Leave and a petition for Special leave arose out of different judgments of the High Court. The main issue involved was whether the location of Revenue Mandal Headquarters in the State of Andhra Pradesh under section 3(5) of the Andhra Pradesh District (Formation) Act, 1974, was a purely governmental function, not amenable to the writ jurisdiction of the High Court. Writ Petitions were filed in the High Court by individuals and gram panchayats questioning the legality and propriety of the formation of certain Revenue Mandals and location of certain Mandal Headquarters notified in preliminary notification issued under sub section (5) of Section 3 of the Act. In some cases, the High Court declined to interfere with the location of Mandal Headquarters, holding that the government was the best judge of the situation, or on the ground that there was a breach of guidelines it directed the Government to reconsider the question of location of the Mandal Headquarters. In some cases, the High Court quashed the final notification for location of the Mandal Headquarters at a particular place, holding that there was a breach of guidelines based on the system of marking and also on the ground that there were no reasons disclosed for deviating from the preliminary notification for location of the Mandal Headquarters at another place. Allowing Civil Appeal Nos. 1980, 1982, 1985 and 1987 of 1986 and all other appeals and Special Leave Petitions directed against the judgments of the High Court, whereby the High Court had interfered with the location of the Mandal Headquarters, the Court, ^ HELD: It was difficult to sustain the interference by the High Court in some of cases with the location of the Mandal Headquarters and the quashing of the impugned notification on the ground that the Government had acted in breach of the guidelines in that one place or 695 the other was more centrally located or that location at the other place would promote general public convenience or that the Headquarters should be fixed at a particular place with a view to developing the areas surrounded by it or that merely because a particular person who was an influential Member of Legislative Assembly belonging to the party in opposition had the right of representation but failed to avail of it. The location of Headquarters by the Government by the issue of the final notification under sub s (5) of section 3 of the Act was on a consideration by the Cabinet Sub Committee of the proposals submitted by the Collectors concerned and the objections and suggestions received from the local authorities like Gram Panchayats and the general public, keeping in view the relevant factors. Even assuming that any breach of the guidelines for the location of the Mandal Headquarters was justiciable, the utmost that the High Court could have done was to quash the impugned notification in a particular case and direct the Government to reconsider the question. There was no warrant for the High Court to have gone further and direct the shifting of the Mandal Headquarters at a particular place. [711B E] The guidelines are merely in the nature of instructions issued by the State Government to the Collectors regulating the manner in which they should formulate their proposals for formation of a Revenue Mandal or for the location of its Headquarters keeping in view the broad guidelines laid down in Appendix I to the White Paper issued by the Government laying down the broad guidelines. The guidelines had no statutory force and they had also not been published in the Official Gazette. They were mere departmental instructions for the Collectors. The ultimate decision as to the formation of a Revenue Mandal or location of its Headquarters was with the Government. It was for that reason that the Government issued preliminary notification under sub s (5) of section 3 of the Act. Deviation from the guidelines in some of the aspects was usually for reasons of administrative convenience keeping in view the purpose and object of the Act i.e. to bring the administration nearer to the people. There was nothing on record to show that the decision of the Government in any of these cases was arbitrary or capricious or was one not reached in good faith or actuated with improper considerations or influenced by extraneous considerations. In a matter like this, conferment of discretion upon the Government in the matter of formation of a Revenue Mandal or location of its Headquarters in the nature of things necessarily leaves the Government with a choice in the use of the directions conferred upon it. [713A F] It was difficult to sustain the judgments of the High Court in the 696 cases where it had interfered with the location of Mandal Headquarters and quashed the impugned notifications on the ground that the Government had acted in breach of the guidelines in that one place or the other was more centrally located or that location at the other place would promote general public convenience or that the Headquarters should be fixed at a particular place with a view to developing the area surrounded by it. The location of Headquarters by the Government by the issue of the final notification under sub section (5) of Section 3 of the Act was on a consideration by the Cabinet Sub Committee of the proposals submitted by the Collectors concerned and the objections and suggestions received from the local authorities like the gram panchayats and the general public. Even assuming that the Government while accepting the recommendations of the Cabinet Sub Committee directed that the Mandal Headquarters should be at one place rather than at another place as recommended by the Collector concerned in a particular case, the High Court would not have issued a writ in the nature of mandamus to enforce the guidelines which were nothing more than administrative instructions not having any statutory force, which did not give rise to any legal right in favour of the writ petitioners. The petitions filed under Article 226 of the Constitutions before the High Court were dismissed. [723G H; 724A D] Gram Panchayat, Chinna Madur & Orr. vs The Government of Andhra Pradesh, [1986] 1 Andhra Weekly Reporter 362; C.J. Fernandez vs State of Mysore & Ors., ; ; Padfield vs Minister of Agriculture Fisheries & Food, ; ; Laker Airways Ltd. vs Department of Trade, at 705; Council of Civil Service Unions and Others vs Minister for the Civil Service, ; ; Secretary of State for Education and Science vs Tameside M.B.C.; , ; Breen vs Amalgamated Engineering Union, at 190; R.V. Criminal Injuries Compensation Board, explain, and Ridge vs Baldwin, ; , referred to.

N borrowed rupees one lakh from D on mortgage of a house and Zamindari interest on March 1, 1924. Interest was 8% per annum compoundable with six monthly rests. In 1932 the mortgagee filed a suit on the mortgage and a decree was passed for the recovery of Rs. 1,83,781/5/9 principal and interest upto the date of the suit and Rs. 49,280/ 2/6 interest from date of the suit upto the date fixed for payment, with future interest at 6% per annum simple on the principal sum. On the failure of the mortgagor to pay by the date fixed a final decree was passed on May 9, 1935 for sale of the property for recovery of a sum of Rs. 2,37,503/5/6 which had become due. On October 26, 1936, N made an application under section 4 of the U. P. Encumbered Estates Act, 1934, requesting that the provisions of the Act be applied to him. Section 14(4)(a) of the Act provided that " the amount of interest held to be due on the date of application shall not exceed that portion of the principal which may still be found to be due on the date of the application ". N contended that in view of section 14(4)(a), D was not entitled to recover any sum as interest in excess of the principal sum of rupees one lakh. D contended that it was not necessary to reopen the decree as the principle of section 14(4)(a) had not been violated in passing the decree. Held, that the proper decree that should have been passed on the application was for rupees two lakhs for the principal and interest plus costs and interest pendente lite and future interest at 4% per annum. The words " on the date of the application " in section 14(4)(a) of the Act had been deliberately used to benefit the applicant by reducing the interest to the amount of the principal found still due on the date of the application, whatever amount of interest may be due under the contract. The fact that there had been a decree did not make any difference in giving the benefit of the section to the applicant. Pandit Ramsagar Prasad vs Mst. Shayama, A.I.R. 1939 Oudh 75, disapproved. Rukun uddin vs Lachhmi Narain, I.L.R. 1945 All. 307, referred to. 119

The appellant firm M/s. Kishinchand Chellaram was assessed to tax for the assessment year 1947 48, the relevant accounting year being the year ending 6th April, 1947. The concerned Income Tax Officer on an information that a sum of Rs. 1,07,350 purported to have been sent by the assessee by a telegraphic transfer through the Punjab National Bank Ltd., Madras, to its Bombay Branch favouring one Nathirmal on 16 10 1946, has escaped assessment, called upon the assessee, through his letters dated 24th February, 1955 and 4th March, 1955 to explain the same. The Income Tax Officer did not refer to the letters dated 14th January, 1955 and 10th February, 1955 addressed by him to the Bank Manager nor the reply of the Manager dated 18th February, 1955 in the said two letters addressed to the assessee. Nor were the copies supplied to the assessee nor even made available on record before all authorities including the Supreme Court. The assessee through its letter dated 24th March, 1955 replied that as per its records no such remittance was ever sent by it from Madras to Nathirmal in Bombay. On 2nd February, 1956, the Income Tax Officer for the second time called the very same particulars to which the assessee by its letter dated 9th February, 1956 once again denied the remittance by it. Despite this, by his letter dated 4th March, 1957 addressed to the assessee, the Income Tax Officer repeated his earlier request to it to explain about the remittance, complaining at the same time of silence by the assessee to his letter dated 2nd February, 1956. The assessee in its reply dated 13th March, 1957 while inviting attention to its earlier replies dated 24th March, 1955 & 9th February, 1956 reiterated that no amount of Rs. 1,07,350 was remitted by it from Madras to Nathirmal. Disbelieving it, the Income Tax Officer, by his order brought to tax the amount of Rs. 1,07,350 on the ground that it represented the concealed income of the assessee and observed that "there was no reason to doubt the banker 's statement that the amount was remitted by M/s. Kishinchand Chellaram from Madras". The assessee preferred an appeal to the Assistant Appellate Commissioner. At this stage, it came to light that the purported telegraphic transfer was applied for by one "Tilok Chand C/o M/s. K. Chellaram, 181, Mount Road, Madras" and it was received at Bombay by one "N.B. Bani". In spite of the plea of the assessee that the transaction did not relate to its firm, the Assistant Appellate 721 Commissioner holding that the assessee has not discharged the burden of proof lying on it to explain the amount, rejected the appeal. Further appeal to the Tribunal and a reference called for by the High Court at the instance of the assessee was also answered against it. Hence the appeal after obtaining special leave of the Court. Allowing the appeal, the Court, ^ HELD: (1) There was no material evidence at all on the basis of which the Tribunal could come to the finding that the amount of Rs. 1,07,350 was remitted by the assessee from Madras and that it represented the concealed income of the assessee. [731E]. In the face of the application for remittance signed in the name of Tilok Chand, that this amount was sent by the assessee and the finding to that effect reached by the Tribunal is unreasonable and perverse. What at the highest could be said to be established by the material evidence on record is that Tilok Chand remitted the amount of Rs. 1,07,350 from Madras and this amount was received by Nathirmal in Bombay. Even if it is accepted that Tilok Chand and Nathirmal were employees of the assessee as held by the Tribunal, the utmost that could be said is that an employee of the assessee in Madras remitted the amount of Rs. 1,07,350 to another employee in Bombay. But, from this premise it does not at all follow that the remittance was made by the employee in Madras on behalf of the assessee or that it was received by the employee in Bombay on behalf of the assessee. The burden was on the Revenue to show that the amount of Rs. 1,07,350 said to have been remitted from Madras to Bombay belonged to the assessee and it was not enough for the Revenue to show that the amount was remitted by Tilok Chand, an employee of the assessee, to Nathirmal, another employee of the assessee. It is quite possible that Tilok Chand had resources of his own from which he could remit the amount of Rs. 1,07,350 to Nathirmal. It was for the Revenue to rule out this possibility by bringing proper evidence on record, for the burden of showing that the amount was remitted by the assessee was on the Revenue. [730H 731D] The two documents viz. the letters dated 18th February, 1955 and 9th March, 1957 did not constitute any material evidence which the Tribunal could legitimately have taken into account for the purpose of arriving at the finding that the amount of Rs. 1,07,350 was remitted by the assessee from Madras to Bombay because while the former was not disclosed to the assessee by the Revenue Authorities till the hearing before the Tribunal in regard to the preparation of the supplemental statement of the case, giving the assessee an opportunity to cross examine the Manager of the Bank, the latter was not disclosed to the assessee at any stage. Further, there is no explanation given by the Revenue as to how these two important documents were not traceable earlier. Even if these two letters were to be taken into account, they did not supply any reasonable basis for reaching the finding that it was the assessee which sent the remittance of Rs. 1,07,350. There can be no doubt that if the amount had been remitted by Tilok Chand on behalf of the assessee he would have signed the application for telegraphic transfer on behalf of the assessee and not in his own name. This apart it is impossible to believe that the Manager of the Bank could have failed to appear before the Income Tax Officer in answer to the summons dated 5th March, 1957 and there is no doubt that this statement must have been recorded and the said statement also withheld. [729H 730A; 729B, C; 730B, E; 729F G] 722 (2) It is true that the proceedings under the Income Tax law are not governed by the strict rules of evidence and therefore it might be said that even without calling the Manager of the Bank in evidence to prove this letter, it could be taken into account as evidence. But before the Income Tax Authorities could rely upon it, they were bound to produce it before the assessee so that the assessee could controvert the statements contained in it by asking for an opportunity to cross examine the Manager of the Bank with reference to the statements made by him. Moreover, this letter was said to have been addressed by the Manager of the Bank to the Income Tax Officer on 18th February, 1955 in relation to a remittance alleged to have been sent on 16th October, 1946 and it is impossible to believe in the absence of any evidence to that effect, that the Manager who wrote this letter on 18th February, 1955 must have been incharge of the Madras Office on 16th October, 1946 so as to have personal knowledge as to who remitted the amount of Rs. 1,07,350. The Revenue authorities ought to have called upon the Manager of the Bank to produce the documents and papers on the basis of which he made the statements contained in his letter and confronted the assessee with those documents and papers but instead of doing so, the Revenue authorities chose to rely merely on the statements contained in the letter and that too, without showing the letter to the assessee. [728A F]

In 1947 S conveyed by a sale deed to M an undivided half share of Land in his village. On the same day S executed a Kabulayat for 5 years in respect of the same land for cultivation. In 1951 the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951, came into force and the Compensation Officer started enquiry about assessment of compensation. M claimed to retain possession of the half share in all the fallow lands in the village which had been leased by him for cultivation to S on the plea that these lands were 'home farm '. The claim 711 was rejected by the Compensation Officer and confirmed by the Additional Settlement Commissioner. The High Court of Nagpur quashed the order. In appeal to the Supreme the Additional Settlement Commissioner contended that in respect of an undivided interest in the land, the superior holder is not entitled to the benefit of section 4(2) of the Act because it is not a 'holding ', alternatively, that the land which was, at the date of vesting, lying fallow otherwise than in accordance with the usual agricultural practice could never be regarded as 'home farm '. ^ Held, that a part of a holding or an undivided interest in a " holding" in Berar may also be 'home farm ' land if it otherwise fulfils the requirement of cl. (i), (ii) or (iii) of sub cl. (3) of section 2(g) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951. The land having been granted in lease for cultivation it is by virtue of section 4(2) of the Act to be retained in the possession of the proprietor. Grant of a lease for cultivation evidences an intention on the part of the proprietor that the land is to be converted to agricultural purposes, and default on the part of the lessee to cultivate the land will not deprive the lessor proprietor of the benefit granted to him by the statute.

An application for leave to appeal to the High Court under section 417(3) Code of Criminal Procedure against an order of acquittal by a Magistrate dated August 31, 1965 was filed on November 1, 1965. It was claimed that two days were necessary for obtaining the certified copy of the order of the Magistrate. The application would be in time if these two days were deducted. The High Court accepted the appeal and convicted the appellant. In appeal to this Court against his conviction the appellant contended that the period of 60 days mentioned in section 417(4) was not a period of limitation within the meaning of section 12 of the Limitation Act and that the sub section barred the jurisdiction of the High Court to deal with the application if a period of 60 days had expired from the date of the order of acquittal. HELD : The application under section 417(3) to the High Court was within time. Section 417(4) itself prescribes a period of limitation; it was open to the legislature to prescribe a period of limitation in the code itself. In the context of section 417(4) the word "entertain" means "file or receive by the court" and it has no reference to the actual hearing of the application for leave to appeal; otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put up for hearing before the High Court within sixty days of the order of acquittal. [901 D F] Kaushalya Rani vs Gopal Singh, , 987, Anjanabai vs Yeshwantrao Daplatrao Dudhe, I.L.R. (1961) Bom. 135, 137 and Lakshmi Rattan Engineering Works vs Asstt. Commissioner Sales Tax; , , referred to.

Appeal No. 153 of 1958. Appeal by special leave from the judgment and order dated January 9, 1956, of the Bombay High Court in Special Civil Application No. 2258 of 1955 J. B. Dadachanji, section N. Andley, and Rameshwar Nath, for the appellant. section P. Sinha, M. I. Khowaja and A. C. Dave, for respondent No. 1. 1961. March 27. The Judgment of the Court was delivered by WANCHOO J. This appeal by special leave against the judgment of the Bombay High Court raises a question of the interpretation of a. 34 (2 A) of the 569 Bombay Tenancy and Agricultural Lands Act, No. LXVII of 1948 (hereinafter called the Act). The brief facts necessary for present purposes are these: The appellant is the landlord and the respondent a protected tenant. The appellant gave notice of termination of tenancy to the respondent on December 31, 1951, under section 34(1) of the Act. The notice was for one year as required by section 34(1) and the tenancy was to terminate from after March 31, 1953. The landlord therefore made an application on April 7, 1953, under section 29(2) of the Act for obtaining possession of the land to the Mamlatdar. In the meantime, an amendment. was made to the Act by the insertion of sub section (2 A) to section 34 by the Amending Act No. XXXIII of 1952, which came into force on January 12, 1953. By this amendment certain further restrictions were placed on the right of the landlord to terminate the tenancy of a protected tenant. The relevant part of sub section (2 A) is in these terms: "If the landlord bona fide requires the land for any of the purposes specified in sub section (1) then his right to terminate the tenancy shall be subject to the following conditions, namely (1) The land held by the protected tenant on lease stands in the record of rights in the name of the landlord on the first day of January, 1952, as the superior holder. (2) If the land held by the landlord is in area equal to the agricultural holding or less, the landlord shall be entitled to terminate the tenancy of the protected tenant, in respect of the entire area of such land. (3) If the land held by the landlord is more than the agricultural holding in area, the right of the landlord to terminate the tenancy of the protected tenant shall be limited to an area which shall, after such termination, leave with the tenant half the area of the land leased. (4) The tenancy in respect of the land left with the protected tenant after termination under this section shall not at any time be liable to be terminated on the ground that the landlord bona fide 72 570 requires the said land for any of the purposes specified in sub section (1). Explanation. The "agricultural holding" shall mean sixteen acres of jirayat land or four acres of irrigated or paddy or rice land, or lands greater or less in area than the aforesaid areas in the same proportion: The restriction contained in sub section (2 A) is in addition to the restrictions in sub section (2), which lays down that the landlord shall have no right to terminate the tenancy of a protected tenant, if the landlord at the date on which the notice is given or at the date on which the notice expires has been cultivating personally other land fifty acres or more in area, provided that if the land which is being cultivated personally is less than fifty acres, the right of the landlord to terminate the tenancy of the protected tenant and to take. possession of the land leased to him shall be limited to such area as will be sufficient to make the area of the land which he has been cultivating to the extent of fifty acres. When therefore the landlord applied for possession of the land under section 29(2) of the Act, the tenant objected and claimed the benefit of the third clause of subs. (2 A), and the question that arose for determination was whether the tenant was entitled to the protection contained in this clause The Mamlatdar to whom the application under section 29 (2) was made allowed the application. The respondent thereupon appealed but his appeal was dismissed. He then went in revision to the Revenue Tribunal, which was rejected. The tenant then filed an application under article 227 of the Constitution before the High Court and contended that the provision of section 34(2 A) should have been taken into consideration by the Revenue Courts in deciding the application of the landlord under section 29(2) and that the revenue courts were wrong in the view they had taken that that sub section did not apply to the present proceedings. The High Court allowed the application of the tenant, relying on its previous Full Bench decision in Durlabbhai Fakirbhai vs Jhaverbhai Bhikabhai (1), where it was held that as the tenancy had (1) 571 terminated and the right to obtain possession had accrued to the landlord after the coming into force of the Amending Act, the Amending Act applied and therefore the landlord, if he fails to satisfy the further conditions under the Amending Act, would not be entitled to possession. It further held that the Amending Act would apply to all proceedings where the period of notice had expired after the Amending Act had come into force and that what tile Amending. Act did was that it imposed a new limitation on the tight of the landlord to obtain possession and if the landlord failed to satisfy the court at the date when the tenancy expired and he became entitled to possession that he was so entitled in law as it then stood, he could not claim relief from the court. It is the correctness of this view which is being challenged before us in the present appeal. The contention on behalf of the appellant is that section 34(1) gives a right to the landlord to terminate the tenancy by one year 's notice, which was given in this case in December 1951 before the Amending Act came into force. Therefore the notice having been given before the Amending Act came into force, the further limitation put on the right of the landlord by subs. (2 A), introduced by the Amending Act, would not apply to notices given before the Amending Act came into force. The appellant further contends that the right to terminate a tenancy having arisen when the notice was given, the law to be applied, in case of notices given before the Amending Act came into force, would be the law existing on the date of notice. We are of opinion that there is no force in this contention. If we look at the words of sub section (2 A), it provider, certain conditions subject to which the right to terminate the tenancy shall be exercised. It may be that section 34(1) requires one year 's notice in order to exercise this right to terminate, but flubs. (2 A) imposer, restrictions on the landlord 's right to terminate the tenancy and does not speak of any notice at all. Therefore, when we have to look to the application of sub section (2 A) it is the date on which 572 the tenancy terminates which determines its application. The restriction by sub section (2 A) is on the right to terminate the tenancy and this restriction would come into play on the day on which the landlord 's right to terminate the tenancy is perfected, namely, the day on which the tenancy actually terminates in consequence of the notice given to terminate, it. A notice under section 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; but it is always open to the landlord not to carry out his intention. Therefore, for the application of the restriction under sub section (2 A) on the right of the landlord to terminate the tenancy, the crucial date is not the date of notice but the date on which the right to terminate matures, that, is, the date on which the tenancy stands terminated. It is on ', $hat date that the court has to enforce the right of the landlord arising out of the notice of termination and therefore the court has to see whether the termination is in accordance with the restrictions imposed by subs.(2 A) on the date the right is to be enforced. Nor are we impressed by the argument that by applying sub section (2 A) to notices issued before the Amending Act came into force we would be taking away the vested right of the landlord. As we have already pointed out, the notice under section 34 (1) is merely a declaration to the tenant of the landlord 's intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof It is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land. Therefore, the Amending Act did not affect any vested right of the landlords till the tenancy actually stood terminated after the expiry of the notice. Consequently, the provisions of the Amending Act which came into force before the tenancy stood terminated by the notice will have to be taken into consideration in determining the right of the landlord in the matter of the termination of tenancy, for the Amending Act put certain fetters on this right of termination. In the circumstances, we are of opinion 573 that the view taken by the High Court is correct and sub section (2 A) would apply to all cases where notices might have been given but where the tenancy had not actually terminated before the coming into force of the Amending Act. This view, which appears to us to be plain enough on the words of sub section (2 A), is further enforced by another consideration, even if there is any doubt as to the meaning of sub section (2 A). That consideration is that the Amending Act is a piece of beneficent legislation meant for the protection of tenants. Therefore, if there is any doubt about the meaning of sub section (2 A) that doubt should be resolved in favour of the tenant, for whose benefit the Amending Act was passed. In this view it is obvious that the legislature could not have intended that the benefit of this beneficent measure should not be extended to tenants in whose cases the tenancy had not yet terminated, though notices had been given, when the further restrictions were being put on the right to terminate the tenancy. Learned counsel for the appellant has drawn our attention in this connection to Jeebankrishna Chakrabarti vs Abdul Kader Chaudhuri (1). In that case, the Bengal Tenancy Act was amended and the amendment provided that a tenant would be liable to ejectment on one year 's notice by the landlord. The earlier law provided for a notice of ejectment but did not provide that the notice should be for one year; it pro vided no period of notice whatsoever and it was sufficient under it to give notice expiring with the end of an agricultural year in order to effect ejectment, howsoever short might be the period of notice. The question therefore arose whether the amendment applied to notices given under the old law, and the Calcutta High Court held that it did not. The circumstances under which that decision was given are entirely different from the circumstances of the present case. In that case the contents of notice were changed; while formerly what was required was a notice without any particular period, the amendment required a notice of one year. There was no provision in the (1) (1933) I.L.R. LX Cal. 1037 574 Amending Act making notices which were in accordance with the previous law ineffective. In these circumstances the Calcutta High Court was right in holding that the amendment did not affect notices already given. No such question however arises in the present case. The period of notice is the same before and after the amendment in the present case, and what we have to see is whether the crucial date for the application of the new sub section (2 A) is the date of the notice or the date of the termination of the tenancy. We have already held that that date must be the date of the termination of the tenancy. In the circumstances the appeal fails and is hereby dismissed with costs. Appeal dismissed.

Sub section (2A) of section 34 of the Bombay Tenancy and Agri cultural Lands Act, 1948, as amended by the Amending Act of 1952, applied from the date when the tenancy stood terminated on expiry of the notice of ejectment served on the tenant by the landlord under section 34(1) of the Act and not from the date of the notice. The Amending Act could not be said to divest the landlord of any vested right since he could have none till the period of notice terminated and the tenancy came to an end. Consequently, where the landlord gave notice of ejectment under section 34(1) of the Act, but the Amending Act came into force before the period of notice expired the landlord could be entitled to possession only after satisfying the provisions of that subsection. Durlabbhai Fakirbhai vs jhaverbhai Bhikabhai, (1956) 58 Bom. L. R. 85, referred to. Jeebankrishna Chakrabarti vs Abdul Kader Choudhuri, (1933) I.L.R. LX Cal. 1037, distinguished.

The appellant was a tenant of the respondents in respect of certain residential premises. The tenancy was by the Indian Calendar. The appellant did not pay arrears of rent for about 5 years and the landlords gave him notice to quit as he was in arrears of rent for more than six months and asked him to quit on the last day of the Indian month. On the appellant 's failure to comply the landlords filed a suit for ejectment under section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Within two months of the institution of the suit the appellant deposited the arrears of rent. The suit for ejectment was decreed. The appellant contended that in view of section 27 of the Act and r. 4 the tenancy was deemed to be by the British Calendar and the notice to quit expiring with the end of the Indian month was invalid and that he should have been relieved against forfeiture. The landlords contended that no notice to quit was necessary for filing the suit, that the notice given was valid and that there could be no relief against forfeiture. Held, that the suit for ejectment was rightly decreed. it was incumbent upon the landlords to determine the contractual tenancy by a proper notice before they could file a suit for the ejectment of the tenant on the ground of non. payment of arrears under section 12(3) (a) of the Act. The Act did not create a new right in the landlord to evict the tenant for nonpayment of rent; the right to evict was dependent upon a proper termination of the tenancy. The Act gave extra protection to the tenant which he could avail of after his tenancy was determined. There was nothing in section 12 of the Act which overrode the provisions of the transfer of Property Act. The right to possession had to be distinguished from 313 the right to recover possession. The right to possession arose on the determination of the tenancy and the right to recover possession arose under the Act after the right to possession had arisen. Dr. K.A. Dhairyawan, vs J.R. Thakur, ; , Baghubir Narayan Lotlikar vs Fernandiz, (1952) Bom. L.R. 505, Karsandas vs Karsanji, A.I.R. (1953) Sau. 113, Meghji Lakhamahi vs Furniture Workshop, and Ebner vs Lascelles, , referred to. Bai Brij Bai Krishna vs S.K. Shaw and Bros. [1951] S.C.R. 145 and Shri Hem Chand vs Shrimati Sham Devi, I.L.R. 1955) Punj. 36, distinguished. The notice to quit was a valid notice. The original tenancy was according to the Indian Calendar and there was nothing in section 27 of the Act or in r.4 which converted it into a tenancy according to the British Calendar. Section 27 and r. 4 merely provided for the recoverability of rent according to the British Calendar. In view of the provisions of section 12 there could be no relief against forfeiture in the present case. Section 12(3)(a) empowered the court to pass a decree for eviction in case of rent payable month by month if the arrears of rent had been for a period of six months and the tenant had neglected to make the payment within a month of the service of the notice of demand. The payment of arrears after institution of the suit did not affect his liability to eviction and the court 's power to pass the decree. The Court was bound to pass the decree when the requirments of the section were satisfied.where the ' legislature intended to give relief against forfeiture it made a specific provision.

The appellants had applied for compensation to the Jagir Abolition Officer under section 13 of the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1953 in respect of their proprietary jagirs. Against the orders of the said officer they preferred appeals to the Revenue Tribunal which were dismissed for non prosecution. The appellants thereupon filed applications for restoration of the appeals within 30 days of the receipt of the orders of dismissal of the appeals. These applications were dismissed as time barred, the Tribunal taking the view that time was to be calculated from the date of the order. The appellants ' applications under article 227 of the Constitution to the High Court failed and they came by way of special leave, to this Court. It was contended on behalf of the appellant that (i)the Tribunal even while deciding ex parte had to decide on merits and that (ii) the applications for restoration were filed within the time prescribed in Regulation 21 made under the Bombay Revenue Tribunal Act, 1958 which applied to the case. HELD:(i) In the context of section 20 and ;in view of the express language of section 17(1) of the Jagirs Abolition Act the Tribunal had no power to dismiss the appeals in question for non prosecution, but it was obligatory on its part of decide the appeals on merits and to record is decision even though there was default on the part of the appellant to appear in the appeal. [142 E F] (ii) The Tribunal also committed an error of law in dismissing as time barred the applications for restoration of the appeals made by the appellants. In Regulation 21 made under Bombay Revenue Tribunal Act, 1958 the time prescribed for such applications is thirty days from the date of receipt of the Tribunal 's order dismissing the appeal, and the appellants had filed their applications within the said period. [145 A, B] Regulation 21 lays down the procedure for dealing with applications for restoration made under Regulation 20 and the latter Regulation includes within its scope all appeals 'decided ex parte ' whether on merits or otherwise. It could not therefore be said that Regulation 21 did not apply to the case. [144 H]

In 1947 S conveyed by a sale deed to M an undivided half share of Land in his village. On the same day S executed a Kabulayat for 5 years in respect of the same land for cultivation. In 1951 the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951, came into force and the Compensation Officer started enquiry about assessment of compensation. M claimed to retain possession of the half share in all the fallow lands in the village which had been leased by him for cultivation to S on the plea that these lands were 'home farm '. The claim 711 was rejected by the Compensation Officer and confirmed by the Additional Settlement Commissioner. The High Court of Nagpur quashed the order. In appeal to the Supreme the Additional Settlement Commissioner contended that in respect of an undivided interest in the land, the superior holder is not entitled to the benefit of section 4(2) of the Act because it is not a 'holding ', alternatively, that the land which was, at the date of vesting, lying fallow otherwise than in accordance with the usual agricultural practice could never be regarded as 'home farm '. ^ Held, that a part of a holding or an undivided interest in a " holding" in Berar may also be 'home farm ' land if it otherwise fulfils the requirement of cl. (i), (ii) or (iii) of sub cl. (3) of section 2(g) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951. The land having been granted in lease for cultivation it is by virtue of section 4(2) of the Act to be retained in the possession of the proprietor. Grant of a lease for cultivation evidences an intention on the part of the proprietor that the land is to be converted to agricultural purposes, and default on the part of the lessee to cultivate the land will not deprive the lessor proprietor of the benefit granted to him by the statute.

The appellants in both the appeals were allotted a plot each "provisionally subject to the final approval of Government" and possession thereof was also given in 1956. Six years later by letter dated 31 10 62 they were informed that "the State Government has not approved the allotment in your favour and the provisional allotment made in your favour stands cancelled". Steps were to be taken for the eviction as per the said letter of cancellation, but before any action was taken, the District Magistrate requisitioned the said plots for defence purposes under section 29 of the Defence of India Act, 1922. The letters of requisition were addressed to the appellants and possession taken. No steps were taken by the Department for taking formal or symbolical possession of the plots in question after they were requisitioned by the Magistrate. Later on, while derequisitioning the said plots under section 35(1) of the Defence of India Act 1962, the Magistrate "specified the Director of Industries, Kanpur as the person to whom the possession of the said plots shall be given". Possession was given accordingly and the Director of Industries in CA 560/70 in turn allotted the plot covered in it to one Mrs. B. K. Anand respondent 5 therein. The writ Petitions filed by the appellants in the High Court challenging the said orders failed and hence the appeal by special leave. Allowing CA 559/70 and dismissing CA 560/70, the Court, ^ HELD: The inquiry envisaged under sub section (1) of section 35 of the Defence of India Act, 1962, is necessitated only if facts and events taking place after requisition necessitate it. Otherwise not. As for example, suppose, possession of a property is taken from X and after requisition he dies and dispute starts between his heirs as to who is entitled to get back the property. A summary and prima facie inquiry may be made under sub section (1) and property may be released in favour of the person who may be entitled to the possession of it in the opinion of the Government. Of course such a decision would be subject to the adjudication of the rights of the parties in accordance with sub section [814 C E] Facts anterior to the requisition are not necessary to be investigated for release of the property because the property has to be released in favour of the person from whom possession was taken. If it were not so then it would be enlarging the scope of the inquiry envisaged under sub section (1) of section 35 of 810 the Act and the power of the Government to adjudicate upon anterior title of the various claimants to the property. This is not the scope of the inquiry. [814 E F] Technically speaking on a correct interpretation of the law the property on de requisition ought to have been released in favour of the two appellants in the two appeals from whom possession was taken at the time of requisition. The requisition was effected by an order in writing addressed to the person in possession of the property in accordance with sub section (2) of section 29. He may not be the owner of the property. But on requisition possession was taken from him. [814 C D, F G] [The Court, however, passed a qualified and conditional order in terms].

Clause (c) of sub section (3) of section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, enables a landlord occupying only a part of a building, whether resi dential or non residential, to seek eviction of a tenant occupying the whole or any portion of the remaining part of the building, notwithstanding anything contained in cl. (a), for bona fide requirement of additional accommodation. The first proviso thereto enjoins the Rent Controller to reject the application of the landlord under that clause even where the need is found to be genuine, if the hardship caused to the tenant would outweigh the advantage to the landlord. Sub clause (i) of cl. (a) of section 10(3) enables eviction from residential building if the landlord or any member of his family is not occupying a residential building of his own in the city, while sub cl. (iii) enable eviction from non residential building if the landlord or any member of his family is not occupying for purposes of a business a non residential building in the city. A 'building ' is defined in section 2(2) to mean any building or hut or part of a building or hut, let or to be let separately for residential or non residential purposes. The respondent legatees of the landlady, using the first floor of the building for residence sought eviction of the appellant tenant from the ground floor used by him as a godown for storing his business wares on the ground that they bona fide required additional accommodation 1174 for their residential needs. The Rein Controller upheld their claim. The Appellate Authority reversed the findings of the Rent Controller but in revision the High Court re stored the order of eviction passed by the Rent Controller. In this Appeal by Special leave it was contended that since the ground floor constituted a building by itself within the meaning of section 2(2) of the Act. the respondents could seek eviction of the appellant only under section 10(3)(a)(i) of the Act and not under section 10(3)(c), that even if the respondents were entitled to invoke section 10(3)(c) they could seek eviction only if they required the ground floor for non residential purposes and not for residential pur poses, that the factors of relative hardship between the parties weighed more in favour of the appellant than the respondents, and that the High Court was in error in inter fering with the findings of fact rendered by the Appellate Authority while exercising its revisional powers under section 25 of the Act. Dismissing the Appeal, the Court, HELD: 1.1 The ground floor of the building in occupation of the appellant did not constitute a distinct and separate unit. The respondent landlords could. therefore seek evic tion under section 10(3)(c) of the Act. 1.2 A 'building ' has been defined in section 2(2) of the Act as not only a building or hut but also part of a building or hut, let separately for residential or non residential purposes, which could only means that a part of a building that has been let out or that has to be let out separately can also be construed as a separate and independent building without reference to the other portion or portions of the building where it is not necessary to treat the entire building as one whole and inseparable unit. A limitation has thereby been placed by the Legislature itself, by providing that the application of the definition is subject to the contextual position. It follows therefrom that where the context warrants. the entire building being construed as one integral unit. It would be inappropriate to view the build ing as consisting of several disintegrated units and not as one integrated structure. 1.3 In enacting section 10(3)(c) the Legislature has intended that the entire building. irrespective of one portion being occupied by the landlord and the other portion or portions being occupied by a tenant or tenants should be viewed as one whole and integrated unit and not as different entities. 1175 1.4 There is vast difference between the words "residen tial building" and "non residential building" used in section 10(3)(a)(i) and (iii) on the one hand and section 10(3)(c) on the other. While section 10(3)(a)(i) and (iii) refer to a building only as residential or non residential, section 10(3)(c) refers to a landlord occupying a part of a building, whether resi dential or non residential. Furthermore, section 10(3)(c) states that a landlord may apply to the Controller for an order of eviction being passed against the tenant occupying the whole or any portion of the remaining part of the building. 1.5 TO import the expansive definition of the word "building" in section 2(2) into section 10(3)(c) would result in rendering meaningless the words "part of a building" occu pied by the landlord and a tenant "occupying the whole or any portion of the remaining part of the building", leaving no scope for such a landlord to seek eviction. 1.6 The provisions of an Act should be interpreted in such a manner as pot to render any of its provisions otiose unless there are compelling reasons for the Court to resort to the extreme contingency. If a portion of a building let out to a tenant is to be treated in all situations as a separate and independent building then section 10(3)(c) will be rendered otiose because the landlord can never then ask for additional accommodation since section 10(3)(a) does not provide for eviction of tenants on the ground of additional accommo dation for the landlord either for residential or non resi dential purposes. Saraswathi Sriraman vs P.C.R. Chetty 's Charities, ; Mohammed Jaffar vs Palaniappa Chettiar, [1964] 1 M .L.J. 112 and Cheilaromal vs Accommodation Controller, , approved. 2.1 It cannot be said that a landlord can seek addition al accommodation for residence only if the building is a residential one and likewise he can seek additional accommo dation for business purposes only if the building is a non residential one. 2.2 Section 10(3)(c) provides for both situations, viz. a landlord occupying a part of a building which is residen tial or non residential. The words used in it arc "any tenant" and not "a tenant" who can be called upon to vacate the portion in his occupation. Unless the legislature had intended that both classes of tenant i.e. residential or nonresidential, can be asked to vacate by the Rent Control ler for providing landlord the additional accommodation it would not have used the 1176 words "any" instead of using the letter "a" to denote a tenant. Further, the words "as the case may be" in cl. (0) only mean "whichever the case may be", i.e. either residen tial or non residential. They do not restrict the landlord 's right to secure additional accommodation for residential purposes only in respect of a residential building and in the case of additional accommodation for business purposes only to a non residential building. 2.3 Section 10(3)(c) stands on a different footing from section 10(3)(a) (i) and section 10(3)(a)(iii). The non obstante clause has been added to cl. (c) to give it an overriding effect over both the restrictions placed by cls. (a)(i) and (a)(iii), viz., landlord seeking eviction of a tenant should not be occupying a building of his own and secondly the nature of user of the leased property by the tenant must correspond to the nature of the requirement of the landlord. Thus, the requirement of additional accommodation under cl. (c) is not a case of a landlord not occupying a residential or non residential building of his own but a case of a landlord occupying a part of a residential or non residen tial building of his own and putting it to such user as deemed fit by him. If it was the intention of the legisla ture that only a tenant occupying a residential portion of a building can be asked to vacate for providing additional residential accommodation to the landlord and corresponding ly a tenant occupying a portion of a building for non resi dential purposes alone being asked to vacate for the non residential requirements of the landlord. it would have provided specific stipulation to that effect in cl. In the instant case. the requirement of additional accommodation pertains to the need of the landlord and the manner of user of the portion of the building already in his occupation and consequently the bona fides of his require ment will outweigh all the restrictions imposed by section 10(3)(a). K. Parasuramaiah vs Lakshmamma, (AIR 1965: 220). approved. Thirupathi vs Kanta Rao. [1981] Vol. 1 ILR Madras 128 overruled. Once a landlord is able to satisfy the Controller that he is bona fide in need of additional accommodation for residential or nonresidential purposes and that the advan tage derived by him by an order of eviction will outweigh the hardship caused to the tenant. then he is entitled to an order of eviction irrespective of any other consideration. 1177 4. The Rent Controller has gone into the question of comparative hardship and rendered a finding in favour or the respondents. The Appellate Authority 's findings have been vitiated because of its non advertance to the evidence and application of wrong tests in assessing the comparative hardship between the parties. The High Court, was. there fore, entitled to allow the revision.

The appellant was a sub tenant of the tenant respondent. The landlord served a notice of eviction on him in November, 1980 alleging that there was unlawful subletting by the respondent and that he had decided to terminate the tenancy with the expiry of that month. The appellant thereupon attorned in favour of the landlord agreeing to pay him the rent. After becoming the direct tenant, the appellant stopped paying rent to the respondent. The respondent asserting to be the lessor commenced proceedings for eviction of the appellant under section 10(2)(i) and (vi) and section 10(3)(b)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Act, 1960 on the ground that the appellant was in wilful default in payment of rent, that there was denial of title on appellant 's part, and that he required the premises bona fide for his use. F The Rent Controller disallowed the application on the ground that the respondent not being a lessor had no locus standi to initiate the proceedings for eviction. The first appellate court, however, directed eviction of the appellant under section 10(2)(i) and (vi), holding that in view of the denial of respondent 's title as well as non payment of rent, the appellant was estopped from denying the title. The High Court having upheld this view, the appellant appealed to this Court by special leave. Allowing the appeal, ^ HELD: 1. There could be no order of termination in terms of section H 146 10(2)(i) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act unless it could be said that in the facts and circumstances of the case the dispute as to title was not bona fide. In the instant case, there is no such finding by the High Court. Furthermore, the appellant could not be treated to be in arrears of rent since he has been paying rent to the head lessor. Therefore, the order of eviction passed against the appellant under section 10(2)(i) and (vi) of the Act is not sustainable in law. [151G; 152B] 2.1 The rule of estoppel embodied under section 116 of the Evidence Act is that a tenant who has been let into possession cannot deny his landlord 's title at the commencement of the tenancy, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord. During the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord 's title by mere assertion of such a right to the knowledge of the landlord. The words 'during the continuation of the tenancy ' occurring in section 116 of the Evidence Act mean "during the continuance of the possession that was received under the tenancy in question. " The rule of estoppel is thus restricted not only in extent but also in time, i.e., restricted to the title of the landlord and during the continuance of the tenancy. [149E F; C D] 2.2 The general rule of estoppel under section 116 is, however, subject to certain exceptions, in that, a tenant is not precluded from denying the derivative title of the persons claiming through the landlord. Similarly, such estoppel is restricted to the denial of the title at the commencement of the tenancy, it is open to the tenant even without surrendering possession to show that since the date of tenancy the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title holder. [149G H; 150A B] 2.3 In order to constitute eviction by title paramount it is not necessary that the tenant should be dispossessed or even that there should be a suit of ejectment against him. It will be sufficient if there was threat of eviction and if the tenant as a result of such threat attorns to the real owner, he can set up such eviction by way of defence either to an action for rent or to a suit in ejectment. If the tenant, however, gives up possession voluntarily to the title holder, he cannot claim the benefit of this rule. When the tenancy has been determined by eviction by title paramount, no question of estoppel arises under section 116 of the Evidence 147 Act. The principle must equally apply when the tenant has attorned under a threat of eviction by the title paramount and there comes into existence a new jural relationship of landlord and tenant as between them. [150B D] In the instant case, having regard to the fact that the appellant was under threat of eviction by the title paramount, it cannot be said that the rule of estoppel under section 116 of the Evidence Act applied and therefore, he was not entitled to dispute the title of the respondent. Furthermore, the appellant having, after being served with the notice of eviction, attorned to the head lessor, there came into existence a direct tenancy. [151H; 152A B] Bilas Kunwar vs Desraj Ranjit Singh, ILR (1915) All. 557 (PC); Atyam Veerraju & ors. vs Pechetti Venkanna & Ors., ; ; Kumar Krishna Prosad Lal Singha Deo vs Baraboni Coal Concern Limited & ors., ; Adyanath Ghatak vs Krishna Prasad Singh & Anr., AIR (1949) PC 124; 27Halsbury 's Laws of England, 4th Edn., pars 238; Mangat Ram & Anr. vs Sardar Meharban Singh & ors. , , Fide Hussain vs Fazal Hussain & ors. , AIR (1963) MP 232; K.S.M. Curuswamy Nadar vs N.G. Ranganathan, AIR (1954) Mad, 402; S.A.A. Annamalai Chettiar vs Molaiyan & ors. , AIR (1970) Mad. 396 and Chidambara Vinayagar Devasthanam vs Duraiswamy, ILR , referred to,

FACTS the civil appeal by special leave is directed against the judgment and decree rendered by a single judge of the gujarat high court. plaintiff filed the suit for redemption of the said mortgages in the year 1966. defendant-2,brother of defendant i had been joined in that suit on the allegation that the latter was put in possession of mortgage properties by the former subsequent to the coming into existence of the mortgages. that suit was resisted by the defendants,each of them having filed separate written statements which in sub-stance did not differ from each other. the defence in those written statements was that defendant-l and his family members had become tenants of the suit properties in the year 1959-1960 and had continued to be such tenants at the time of mortgage deeds executed in respect of those properties in the year 1961 and thereafter. it was also claimed therein that they had become owners of the said properties when the plaintiff in the year 1962 sold those properties to defendant-1 by receiving a sum of rs.4,400/-as consideration for the sale. the civil court notwithstanding the defence of the defendants recorded its findings. such findings were firstly,that the defendants had failed to prove that the suit properties were sold in favour of defendant-l subsequent to the giving of security of those properties in his favour under the mortgage deeds; secondly,that the defendants had failed to prove the past tenancy of the suit properties on its view that what was pleaded by them in the written statements was tenancy prior to the date of filing of the suit; and thirdly,that the mortgages of the suit properties were mortgages by 'conditional sale. the defendants questioned the judgments and decrees of the trial court and the appellate court by filing a second appeal against the same in the high court of gujarat. the high court,who heard the second appeal, upheld the concurrent findings of the lower court. ARGUMENT arguments addressed behalf of the plaintiff- were these: that defendant-l. respondent-l although was in possession of the suit properties. agricultural lands at the time of execution of the deeds of mortgage by conditional sale in his favour because of the coming into existence of such mortgages there occurred merger of lease-hold rights of defendant-l in suit properties when he obtained those properties as mortgage security under the said mortgages and as a consequence he became a mortgagee in possession of those properties. according to him a mortgagee in possession being a person who cannot be deemed to be a tenant under section 4 of the bt &; al act it was not open to the defendants to claim that they were the tenants of suit properties and if that be so question of raising issue of tenancy by the civil court in the suit before it did not arise at all nor was it necessary to refer such issue to the mamlatdar under section 85-a of the bt &; al act and stay the suit till receipt of the finding on such issue as was directed by the high court in its judgment under appeal. the argument which was strenuously advanced on behalf of the appellant -plaintiff was that in a suit for redemption filed by the mortgagor in a civil court in respect of property notwithstanding the plea of the defendants' claim that they were tenants of that property under the bt &; al act and under the provisions of that act the issue of tenancy had to be referred by the civil court to the mamlatdar for recording a finding thereon and the civil court can proceed to dispose of the suit only on the basis of the finding received from the mamlatdar,the civil court itself can record its finding on the issue of tenancy and if the finding to be recorded had to go against the claim of tenancy,it would be permissible for the civil court to grant the decree for redemption sought by the plaintiff in the said suit. support was sought for the argument from the decision of this court in topandas case 1963 indlaw sc 379 ISSUE (1).does the lease-hold of a tenant (lessee) in a property merge in mortgage security if the same property is given by the landlord (lessor) to the tenant (lessee) as a mortgage security under a mortgage by conditional sale,as would debar the tenant from desisting the suit of the landlord -mortgagor for recovery of possession of such property by obtaining a decree for redemption of the mortgage. 2).when a plea of tenancy is raised with regard to suit property,an agricultural land,by a defendant who claims to be a tenant of such property under the bt &; al act and seeks a reference of that issue by the civil court to the mamlatdar under that act for obtaining a finding thereon,can the civil court decide such issue by itself and proceed to decide the suit on the basis of the finding thereon. the appeal in the court had arisen out of the finding recorded on that issue and in dealing with that matter this court had.to consider the true effect of sub-section (1) of section 28 of the rents control act to find whether it means that a defendant if raises a claim or question as to the existence of relationship of landlord and tenant between him and plaintiff the jurisdiction of the civil court is ousted even though the plaintiff pleaded that there is only exclusive jurisdiction to decide the case with the court of small causes,bombay. ANALYSIS no controversy is raised in the appeal as regards the findings of the civil court that the deeds of mortgage executed by the plaintiff in respect of the suit properties were mortgages by conditional sale. in any event,it was not the case of the plaintiff that defendant-l was a tenant of the suit properties and hc surrendered his possession of the suit properties either expressly or impliedly and the possession so obtained by the plaintiff was re-delivered to defendant-l in pursuance of the mortgages by conditional sale executed in his favour. learned counsel appearing for the defendants -respondents sought to refute the arguments advanced on half of the plaintiff-appellant. what is enunciated in section 111 (d) of the t.p.act cannot be doubted is the doctrine of merger. lease-hold held by a tenant or a lessee being a lesser estate and the right of reversion of the landlord (lessor) being a higher estate,the lessee's lease-hold right in respect of the property merges in reversion when that right of reversion,i.e.,the landlord's (lessor's) right of reversion comes to the tenant or lessee which happens when the landlord having a right to sell his reversion to the tenant holding the lease-hold sells the whole of it to the tenant (lessee). when the landlord mortgages the lease-hold property of the tenant to the tenant himself,he does not part with the right of reversion which he has in respect of that property. if that be so,merger of lease-hold estate in reversion cannot arise,inasmuch as,there cannot be any inconsistency or incompatibility in one person being the tenant and also the mortgagee of the same property,for in that event instead of the tenant paying rent to the landlord he may adjust it against the amount claimable by him as a mortgagee from the landlord. moreover,if a lessee of a property takes a mortgage of the sum property from the landlord,it would be unreasonable to attribute to a tenant the intention to surrender the tenancy and to invoke the sophisticated doctrine of implied surrender as has been held by the gujarat high court in patel atmaram nathudas v. babubhai keshavlal.1974 indlaw guj 88. in the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor. therefore,there cannot be a merger of lease and mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. g.appalaswamy case 1984 indlaw sc 314 (supra) which considered the question whether a sitting tenant who took property by a possessory or usufructuary mortgage in his favour was liable to deliver physical possession upon redemption to the mortgagor. former lessor). the court dealing with the said question said that all depends upon whether there was an implied surrender of the lessee's rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor and only if an implied surrender of lossee's rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. hence,the lease-hold of a tenant (lessee) in a property does not merge in mortgage security of that property,even if it is given .to. him by the landlord (lessor) on a mortgage by conditional sale as would debar the tenant from desisting the suit of the landlord mortgagor for recovery of possession of such property by obtaining decree for redemption of the mortgage. section 70 of the bt &; al act to which we have adverted already imposes a duty on the mamlatdar to decide whether a person is an agriculturist or a tenant or a protected tenant or a permanent tenant when such person claims to be so under that act. further,section 85 of the bt &; al act to which also we have already adverted,in unequivocal terms says that in deciding any issue which is required to be decided by the mamlatdar under the bt &; al act no civil court has jurisdiction to decide it. furthermore,section 85a,as it stood prior to its amendment by gujarat amendment act no.5 in the year 1973 and as stands thereafter,requires that if any suit instituted in civil court involves the question of tenancy of 'present' or 'past',as the case may be,the same being required to be decided or dealt with by an authority competent under the bt &; al act,the civil court has to stay the suit and refer the issue to such competent authority for determination and after receiving the decision thereon to dispose of the suit in accordance with such decision. thus,the provisions in the bt &; al act give no scope or room to think that the plea of tenancy if raised by the defendants in a suit in a civil court,the same could be decided by the civil court STATUTE the transfer of property act,1882 (tp act) "111.a lease of immoveable property determines - (a. b. c. d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. bombay tenancy and agricultural lands act,1948(bombay tenancy and agricultural lands act,1948. section 85a,as it came into force after it was amended by gujarat act no.5 of 1973 w.e.f 3rd march,1973. 85a.(i. if any suit instituted,whether before or after the specified date,in any civil' court involves any issues which are required to be settled,decided or dealt with by any authority competent to settle,decide or deal with such issues

Civil Appeal No. 191 of 1958. Appeal by special leave from the judgment and decree dated February 13, 1956, of the High Court of Judicature at Calcutta in First Appeal No. 191 of 1949. B. Sen and Sadhu Singh, for the appellant. 561 Vidyadhar Makajan and T. M. Sen, for the respondent. March 27. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave against the judgment of the Calcutta High Court. The brief facts necessary for present purposes are these: The appellant, section N. Dutt, is the sole proprietor of the business known as "section N. Dutt & Co." and carried on this business under that name and style at Krishnagore in the district of Nadia in 1944. On May 17, 1944, section N. Dutt & Co. obtained an order from the military authorities for the supply of 10,000 baskets of mangoes to be delivered at Sealdah Railway Station, every day from May 24, 1944, for ten days at the rate of 1,000 baskets, per day. The military authorities made arrangements with the Bengal and Assam Railway for the supply of 30 covered wagons at Jiaganj Railway Station at the rate of three wagons per day commencing from May 22, 1944 for this purpose, and this was communicated to the appellant on May 19, 1944. On May 18,1944, the Divisional Superintendent, Sealdah informed the Station Master at Jiaganj that contractor section N. Dutt would book and load 30 wagons of mangoes at Jiaganj at the rate of three wagons per day from May 22, 1944 and directed him to accept the booking and allot wagons for the said purpose. The appellant thereupon placed indents with the Station Master Jiaganj for. the supply of the said wagons and began to bring to the Jiaganj Railway Station baskets of mangoes from May 21, 1944. It appears however that wagons were not supplied regularly, with the result that whatever consignments reached Sealdah were spoilt and were rejected by the military authorities. On May 30, 1944, the military authorities informed the contractor that the contract had been cancelled on account of the unsatisfactory nature of the supplies. The result of this was that 5004 further baskets of mangoes could not be despatched, though they had been stacked at the railway station at Jiaganj. In consequence the mangoes were spoilt 71 562 and had to be thrown away. The appellant claimed that he had sustained a heavy loss due to the misconduct, gross negligence and carelessness on the part of the Bengal and Assam Railway administration. Consequently he Submitted a claim for damages for over Rs. 84,000 to the Chief Commercial Manager and the General Manager of the Railway. Subsequently on November 4, 1944, he gave two notices under section 80 of the Code of Civil Procedure to the Secretary to the Governor General of India in Council representing the Bengal and Assam Railway and followed it up by instituting the suit on July 21, 1945 claiming over Its. 84,000 as damages. The suit was resisted by the Governor General in Council, now represented by the Union of India. Among other defenses with which we are not concerned in the present appeal, it was contended on behalf of the Union of India (respondent) that the appellant was not entitled to maintain the suit as the two notices under section 80 of the Code of Civil Procedure were not valid and sufficient, but were defective. When the matter came to trial before the Subordinate Judge, he hold in favour of the appellant on the question whether there was negligence or misconduct on the part of the Railway administration; but he dismissed the suit on the ground that the two notices under section 80 were defective inasmuch they had been issued by section N. Dutt and Co. and not on behalf of the appellant. There was then an appeal by section N. Dutt before the High Court. The High Court agreed with the Subordinate Judge that the notices under section 80 were defective and the suit was rightly dismissed. Further on the merits, the High Court did not agree with the Subordinate Judge that any misconduct or negligence had been proved which would entitle the appellant to any damages except in the matter of one small consignment. The appeal therefore failed. Thereupon the appellant applied for a certificate to appeal to this Court which was refused. He then came to this Court by petition for special leave which was granted; and that is bow the matter has came up before us. 563 The main point therefore that arises in this appeal is whether the notices in question were in conformity with section 80 of the Code of Civil Procedure; if they were not, the suit would fail on the ground of non compliance with that provision. Section 80 inter alia lays down that "no suit shall be instituted against the Central Government, until the expiration of two months next after notice in writing has been delivered to, or left at the office of the Secretary to that Government, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered". The defect in the present case is in regard to the name, it being not disputed that there is no other defect in the notice; and the question that arises is whether the defect in name makes the notices ineffective and therefore the suit becomes not maintainable in view of the bar of section 80. As far back as 1927, the Privy Council in Bhagchand Dagadusa vs Secretary of State for India in Council (1) had to consider the true application of section 80 and held that section 80 was explicit and mandatory and admitted of no implications or exceptions and had to be strictly complied with and was applicable to all forms of action and all kinds of relief. In particular, with reference to the name the Privy Council had to consider the matter in Al. Vellayan Chettiar vs Government of the Province of Madras (2). In that case the suit was brought by two plaintiffs but the notice was given by only one of them. The Privy Council hold that this could not be done and observed that " section 80,according to its plain meaning, requires that there, should be identity of the person who issues the. notice with the person who brings the suit". Finally, in Government of the Province of Bombay vs Pestonji Ardeshir Wadia the Privy Council had again to consider the scope of section 80. In that case the notice bad been given by two trustees. Before however the suit could be brought, one of the trustees (1) (1927) L.R. 54 I.A. 138 (2) (1947) L R. 74 I.A,. (3) (1949) L. R. 76 I. A. 85. 564 died and was replaced by two other trustees. The suit was brought by the three trustees, only one of whom had given the notice while two had not. The Privy Council again reiterated that the provisions of a. 80 were imperative and must be strictly complied with. It went on to say that "there is no provision in the Code enabling the trustees to sue in the name of the trust, as members of a firm may sue in the name of the firm. In the case of a trust, the plaintiffs are bound to be the trustees and not the trust and where no notice has been served under section 80, specifying the names and addresses of all the trustees, the provisions of the section have not been complied with and the suit is incompetent. " Learned counsel for the appellant, however, relies on Dhian Singh Sobha Singh and another vs The Union of India (1), where the following observations occur: "The Privy Council no doubt laid down in BhagChand Dogadusa vs Secretary of State (L.R. 54 I.A. 338) that the terms of this section should be strictly complied with. That does not however mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense. As was stated by Pollock C. B. in Jones vs Nicholls, ; , 150), 'We must import a little common sense into notices of this kind '. Beaumont C. J., also observed in Chandulal Vedilal vs Government of Bombay (I.L.R. One must construe section 80 with some regard to common sense and to the object with which it appears to have been passed. " The next case to which reference was made is The State of Madras vs C. P. Agencies (2 ). The question in that case was whether the cause of action had been stated as required by section 80, and this Court held that the cause of action had been stated in the notice. This Court also observed that it was not necessary in that case to consider the two decisions of the Privy Council (to which reference has already been made by us) requiring the identity of the person who issues a notice with the person who brings the suit. (1) ; , 795. (2) A.I.R. (1960) S C. 1309. 565 It is urged that these observations show that the strictness which 'the Privy Council emphasised in these cases has not been accepted by this Court. It must however be remembered that the defect with which this Court was dealing in these cases was in the matter of cause of action and relief, and this Court pointed out that it was necessary to use a little common sense in such circumstances. Where the matter (for example) concerns the relief or the cause of action, it may be necessary to use common sense to find out whether section 80 has been complied with. But ,Where it is a question of the name of the plaintiff, there is in our opinion little scope for the use of common sense, for either the name of the person suing is there in the, notice or it is not. No amount of common sense will put the name of the plaintiff there, if it is not there. Let us therefore examine the notices and the plaint in this case to see whether the suit is by the same person who gave the notices, for it cannot be gain said that the identity of the person who issues the notice with the person who brings the suit must be there, before it can be said that section 80 has been complied with. Now the relevant part of the two notices was in these terms: "Under instructions from my client Messrs. section N. Dutt and Co. of Krishnagar, I beg to give you notice that my said client will bring a suit for damages in the court of the Subordinate Judge of Nadia at Krishnagar against the B & A Railway Administration". In the plaint, the description of the plaintiff was in these terms: "Surrendra Nath Dutta sole proprietor of a business carried on under the name and style of section N. Dutt & Co. of Krishnagar, P. section Krishnagar, District Nadia". It will be immediately obvious that the notices were in the name of Messrs. section N. Dutt and Co., while the suit was filed by section N. Dutt claiming to be the sole proprietor of Messrs. section N. Dutt and Co. It is urged on behalf of the appellant that the reason why the 566 suit was filed in the name of section N. Dutt as sole proprietor of Messrs. section N. Dutt and Co. was that no suit could have been filed in the name of Messrs. section N. Dutt and Co., as that was not a firm; that was merely the name and style in which an individual, namely section N. Dutt, was carrying on the business. The question therefore that immediately arises is whether section N. Dutt who filed the suit was the person who gave the notices and the answer is obvious that it is not so. It may be that section N. Dutt is the sole proprietor of Messrs. section N. Dutt and Co. and is carrying on business in that name and style; but that does not mean that these notices were by section N. Dutt. Any one reading these notices would not necessarily come to the conclusion that Messrs. section N. Dutt and Co. was merely the name and style in which an individual was carrying on business. The Prima facie impression from reading the notices would be that Messrs. section N. Datt and Co. was some kind of partnership firm and notices were being given in the name of that partnership firm. It cannot therefore be said on a comparison of the notices in this case with the plaint that there is identity of the person who issued the notices with the person who brought the suit. Besides if Messrs. section N. Dutt and Co., not being a partnership firm, could not file a suit in that name and style on behalf of its members, we cannot see how section N. Dutt and Co. could give a valid and legal notice in that name and style on behalf of an individual, section N. Dutt. As was pointed out by the Privy Council in Peslon Ardeshir Wadias case (1), the case of members of a firm stood on a different footing, for the members of a firm might sue in the name of the firm; but in the present case Messrs. section N. Dutt and Co. is not a firm; it is merely the name and style in which an individual (namely, section N. Dutt) is carrying on business and though the individual may in certain circumstances be sued in name and style, he would have no right to sue in that none. There ,fore, where an individual carries on business in some name and style the notice has to ' be given by the individual in his own name, for the suit can only be filed in the name, (1) (1949) L.R 76 I.A. 85. 567 of the individual. The present suit is analogous to the case of trustees where the suit cannot be filed in the name of the trust; it (,,an only be filed in the name of the trustees and the notice therefore has also to be given in the name of all the trustees who have to file a suit. Therefore comparing the notices given in this suit with the plaint, and remembering that Messrs. section N. Dutt and Co. is not a partnership firm but merely a name and style in which an individual trades, the conclusion is inescapable that the person giving the notices is not the same as the person suing. It was urged on behalf of the appellant that the Railway Administration knew the position that Messrs. section N. Dutt and Co. was merely the name and style in which an individual (namely, section N. Dutt) was trading. But even this in our opinion is not correct as a fact, for, as pointed out by the High Court, there are documents on the record which show that section N. Dutt gave himself out as a partner of Messrs. section N. Dutt and Co., thus suggesting that section N. Dutt and Co. was a firm. That was the reason why a plea was raised on behalf of the Union of India that the suit was barred under section 69 of the Partnership Act as the firm was not a registered firm. In this connection learned counsel for the appellant referred us to certain cases in which in similar cir cumstances the notice was considered to be valid under section 80. These cases are: Kamta Prasad vs Union of India (1) and Secretary of State vs Sagarmal Mar. wari (2). In view of what we have said above, we cannot agree with the view taken in these oases and must hold that they were wrongly decided. In this view of the matter, there is no force in this appeal and it is hereby dismissed with costs. Appeal dismissed.

The appellant was the sole proprietor of a business styled section N. Dutt SE Co. He gave a notice under section 80 of the Code of Civil Procedure to the respondent in the name of "section N. Dutt & Co.". After the requisite period he filed a suit against the respondent describing the plaintiff as: "Surendra Nath Dutt sole proprietor of a business carried on under the name and style of section N. Datt & Co." The suit was dismissed on the ground that the notice was defective as it was issued by section N. Dutt & Co. and not the plaintiff. The appellant contended that the notice was valid as section N. Dtitt carried on business and that no suit could have been filed in the name of section N. Dutt & Co. as it was not a firm. Held, that the notice was defective and that the suit had been rightly dismissed. The person who issued the notice was not the same as the person who filed the suit. Since section N. Dutt & Co. could not file the suit in that name it could not give a valid and legal notice in that name. A valid notice could have been given only in the name of section N. Dutt. A defect in the notice as to the name of the plaintiff has to be viewed strictly. Bhagchand Dagadusa vs Secretary of State for India in Council, (1927) L.R. 54 I.A. 338, Al. Velayan Chettiar vs Government the Province Madras, (1947)223 and Government of the Province of Bombay vs Pestonji L.R. Wadia, (1949) L.R. 76 I.A. 85, referred to. Dhian Singh Subha Singh vs TheUnion of India, ; and The State of Madras vs C. P. Agencies, A.I.R. , distinguished. Kamta Prasad vs Union of India, and Secretary of State vs Sagarmal Marwari, A.I.R. 1941 Pat. 517, disapproved.

The appellant, who was a Platform Inspector employed by the North Eastern Railway was prosecuted for offences under section 161 I.P.C. and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 for accepting a bribe from another subordinate railway employee. The prosecution was commenced after obtaining the sanction of the Deputy Chief Commercial Superintendent but it was discovered during the trial that this officer was not competent to sanction the appellant 's prosecution. The trial Judge, at the request of the Public Prosecutor, quashed the proceedings. Thereafter. sanction was obtained from the Chief Commercial Superintendent and in fresh proceedings for the same offences, the appellant was convicted and the order of conviction was confirmed in appeal by the High Court. In appeal to this Court it was contended on behalf of the appellant: (i) that in view of the provisions of cl. (i) of r. 1704 of the Indian Railway Establishment Code, the Deputy Chief Commercial Superintendent had the power to remove the appellant from service, and was competent to grant sanction under section 6(c) of the Prevention of Corruption Act for his prosecution; the sanction given by the Deputy Chief Commercial Superintendent for prosecuting the appellant was therefore valid and the order passed by the Special Judge quashing the proceeding amounted in law to an order of acquittal so that the appellant could not again be tried for the same offence; (ii) that in relation to the evidence of two witnesses for the prosecution, the provisions of section 356 Cr. P.C. had not been complied with in that, the evidence of these witnesses was recorded in the presence of one trial Judge and the record of the evidence had been signed by his successor in office, after the death of the former; and (iii) that the investigation was made by an officer who. in view of the provisions of section 5A(1)(d) of the Prevention of Corruption Act, 1947 had no authority to investigate the offence as he was a Police Officer below the rank of a Deputy Superintendent of Police. 949 HELD: Dismissing the appeal, (i) The powers exercisable under r. 1704 (i) being subject to cl. (c) of r. 1705 of the Indian Railway Establishment Code and also to the provisions of article 311 of the Constitution in the present case the Deputy Chief Commercial Superintendent could not remove the appellant from service and, therefore had no power to sanction his prosecution. the trial judge who had taken cognizance of the case on a sanction given by the Deputy Chief Commercial Superintendent was incompetent to try the case, and an order of acquittal passed by a court which had no jurisdiction did not bar a retrial for the same offence. [952 C E] (ii) There was irregularity in maintaining the record of the evidence at the trial because the evidence was recorded before one Judge and another Judge. subscribed his signature to the record of that evidence, and on that account there was nOn compliance with the provisions of section 356(1) Cr.P.C., but this was an irregularity curable under section 537 Cr. P.C. and did not vitiate the trial. [955 B. E] The object of the provisions in the Code relating to the recording of evidence is to ensure that a correct record is maintained of what is said in court by witnesses, and the record may be available at a later stage of the trial and in appeal. If the court is satisfied that in a given case the record notwithstanding any departure from the provisions relating to maintenance of the record is correct the irregularity may be ignored if no injustice has resulted therefrom. [954 D] Liverpool Borough Bank vs Turner, ; , referred to. Abdul Rahman vs King Emperor, L.R. 54 I.A. 96, distinguished. (iii) By section 5A(1)(d) the legislature has expressly provided that an officer below the rank of a Deputy Superintendent of Police may conduct the investigation with the order of a Presidency Magistrate or a Magistrate of the First Class. In the present case such are order of the Additional District Magistrate who held the office of a First Class Magistrate was obtained and there was compliance with the provisions of section 5A(1)(d). [957 H]

The Government of Uttar Pradesh under section 3 of the U.P. , and the Statutory orders framed thereunder referred certain. disputes between the respondent Ice Factories and the respective workmen to an Industrial Tribunal. The Tribunal heard the matters but failed to pronounce its award in open court, as required under the clause 9 (7) of the Statutory Orders. Instead the Registrar of the Tribunal informed the Ice Factories that the award of the Tribunal had been submitted to the Government. The award was published in the U.P. Gazette and the Regional Conciliation officer called upon the Ice Factories to implement the award immediately. The Ice Factories moved the High Court at Allahabad alleging that the award was a nullity as it had not been pronounced in open court as required under the clause 9 (7) of the Statutory Orders and asking for writs to quash it. High Court issued the writs quashing the Notification publishing the award. The questions are whether the provisions of sub cl. (7) of cl. 9 of the Statutory Orders are imperative or merely directory and whether that sub clause is ultra vires as being in conflict with the Act under which it had been framed. Held, that the clear intention of the legislature is to make it imperative that judgments should be pronounced in open court by the Tribunal and a judgment not so pronounced would therefore be a nullity. The provision in sub cl.(7) of cl. 9 of the Statutory Order is imperative and not directory. Held, further, that the provisions as to the pronouncement of the decision in open court contained in cl. 9 (7) of the Statutory Order was clearly within the powers contemplated in section 3 (g) of the Act and section 6 of the Act does not prohibit the making of such provisions. A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with section 6 of the Act. Montreal Street Railway Co. vs Normandin, ; , referred to.

The appellant, who was less than 20 years was convicted for an offence under section 7(1) of the , and was ordered to furnish a bond under section 4 of the . The High Court revised the sentence, because section 16 of the Prescribed a minimum sentence of imprisonment for 6 months and a fine of Rs. 1000. Allowing the appeal to this Court, HELD : Section 4(1) of the contains the non obstante clause notwithstanding anything contained in any other law for the time being in force, and hence the section would have overriding effect and shall prevail if its other conditions are fulfilled; especially when the was enacted in 1958 subsequent to the enactment in 1954 of the . [317 A C; 318 D E] According to section 18 of the , that Act shall not affect section 5(2) of the Prevention of Corruption Act which also prescribes a minimum sentence of imprisonment. The fact that only one offence for which a minimum sentence of imprisonment is prescribed, has been specified shows that in the case of other such offenses, the provisions of the can be invoked [317H; 318 A C] Assuming there is some ambiguity, the principle to be applied in construing a penal statute is that such doubt should be resolved in favour of the person who would be liable to the penalty. [318 D] Adulteration of food is a menace to public health and the has been enacted to eradicate the evil. Therefore, courts should not lightly resort to the provisions of the probation of Offenders Act in the case of persons above 21 years of age; but the Act makes a distinction between offenders below 21 years and those above that age. As regards person under 21 years, the policy of the law is that such a person, even in the case of conviction under the , should not be deprived of the advantage of the which is a beneficent measure and reflects and incorporates the modern approach and latest trend in penology. [318 G H; 319 A C] As the object of the is to avoid imprisonment of a person covered by its provision, ,, that object cannot be set at naught by imposing a sentence of fine which would entail imprisonment in case of default. [319 D] Rattan Lal vs State of Punjab ; and Ramji Missir vs State of Bihar [1962] Supp. 2 S.C.R. 745, referred to. 313

The appellant, who was at the time the Karta of a Hindu Joint Family, gave notice in January, 1954, to the respondent State under section 80 of the Civil Procedure Code. Thereafter a suit was filed in July, 1954, by which time a partition had taken place in the family. In view of this the appellant 's three grand sons were joined as plaintiffs in the suit the plaintiffs sought a declaration that three nazul plots in suit had been in the possession of the plaintiffs and their ancestors from time immemorial and their status was that of Raiyat Sarkar; so that an order of the State Government in the Survey and Settlement Department refusing to recognise their possession over the plots was wrong and ultra vires. Apart from contesting the suit on the merits, the respondent State contended that plaintiffs 2, 3 and 4 i.e. the appellant 's grand sons had no right to institute a suit because no notice under section 80 C.P.C. was given on their behalf. The trial court dismissed the suit. In an appeal, the High Court held that the appellant had lost the right to represent the joint family as karta at the time of institution of the suit because their had been severence of joint status and the notice served by him could not enure to the benefit of other plaintiffs. On the merits the High Court found that the plaintiffs had shown their possession for the statutory period of 6 years. On appeal to this Court, HELD: (1) The notice given by the appellant in January, 1954, was sufficient in law to sustain a suit brought by all the divided coparceners who must be deemed to be as much the authors of the notice as the Karta who was the actual signatory of the notice. There was substantial identity between the person giving the notice and the persons bringing the suit in the present case. [959 B] At the time of giving notice the appellant was admittedly the eldest member of the joint family and being a Karta he was entitled to represent the joint family in all its affairs. The cause of action had accrued at the time of giving of the notice and it was not necessary to give a second notice merely because there was a severance of the joint family, before 20th July, 1954, when the suit was actually instituted. [958 G H] Although the terms of section 80 C.P.C. must be strictly complied with, that does not mean that the terms of the notice 'should be scrutinised in an artificial or pedantic manner. [960 A] Dhian Singh Sobha Singh & Anr. vs The Union of India, ; , referred to, 956 State of Andhra Pradesh vs Gundugola Venkata Suryanarayan Garu, ; ; Vellayan Chettiar & Ors. vs Government of the Province of Madras and Anr. , A.I.R. 1947, P.C. 197; Government of the Province of Bombay vs Pestonji Ardeshir Wadia & Ors., 76 I.A. 85, distinguished. (2) On the merits, the appellants had failed to produce reliable oral or documentary evidence to prove that their ancestors had possession over the disputed land for many years. On the contrary this land was always recognised as Milkiat Sarkar and the respondent State Government was justified in holding it as such.

The appellant firm was assessed to sales tax under the pro visions of the Bihar Sales Tax, 1944, for three periods commencing from October 1, 1947, and ending on March 31, 1050. Its claim for certain deductions was disallowed, and its applications in revision under section 24 Of the Act to the Board of Revenue, Bihar, were dismissed by three orders dated August 20, 1953, September 3, 1953 and April 30, 1954. Under section 25(1) of the Act the appellant applied to the Board to state a case to the High Court of Patna on certain questions of law, but the applications were dismissed by order dated August 30, 1954, on the ground that no questions of law arose. The appellant then moved the High Court for requiring the Board to state a case on the said questions of law. The High Court dismissed the applications in respect of the first two periods of assessment, but by order dated November 17, 1934, directed the Board to state a 277 case in regard to the third period on one of the questions of law which only, in its opinion, arose. By its judgment dated January 21, 1957, the High Court answered the question against the appellant. On February 17, 1955, the appellant made applications to the Supreme Court for special leave to appeal against the orders of the Board of Revenue dated August 20, 953, and September 3, 1953, in respect of the first two periods; and on April 12, 1955, it similarly applied for special leave in respect of the third period. Leave was granted in respect of all the three applications by order dated December 23, 1955, the leave granted in regard to the third period being confined to the order of the Board dated August 30, 1954. When the appeals came up for hearing the question was raised as to whether the appeals were maintainable in view of the fact that no applications for leave to appeal were filed against the orders of the Board of Revenue and the High Court subsequent to the orders of the Board in respect of which only special leave had been granted. Held, that though the words of article 136 of the Constitution of India are wide, the Supreme Court has uniformly held as a rule of practice that there must be exceptional and special circumstances to justify the exercise of the discretion under that Article. Pritam Singh vs The State, ; , V. Govinda rajulu Mudaliar vs The Commissioner of Income tax, Hyderabad, A.I.R. 1959 S.C. 248 and Messrs Chimmonlall Rameshwarlal vs Commissioner of Income tax (Centyal), Calcutta, , relied on. Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal, ; and Baldev Singh vs Commis sioner of Income tax, Delhi and Ajmer, , explained. Held, further, that in the circumstances of the present case the appellant was not entitled to a grant of special leave against the orders of the Board of Revenue where the result would be to by pass the High Court by ignoring its orders. Held, also, that though special leave might have been granted on an application made under article 136, the Court is not precluded from coming to a conclusion at the time of the hearing of the appeal that such leave ought not to have been granted. Baldota Brothers vs Libra Mining Works, A.I.R. 1961 S.C.C. 100, followed.

The respondents brought a suit for a mandatory injunction directing the removal of certain masonry structure on suit site and for a permanent injunction restraining the appellants from encroaching upon the suit property and from causing obstruction to the right of way of the residents of the village. They claimed that the suit property formed part of a public street and the appellants had no right to encroach upon it. The appellants claimed the suit property as absolute owners and as such, they were entitled to use it in any manner they pleased. The trial. Court decreed the suit. On appeal, the learned Subordinate Judge set aside the decree. On challenge of this decree by the respondents in second appeal before the High Court, the learned single Judge passed a decree in their favour. All that the learned Judge stated in his judgment was that "after a careful consideration of all the issues that arise for decision in this second appeal, I am of the opinion that the best form in which a decree could be given to the plaintiffs is in the following terms" and then he proceeded to set out the terms of his decree. On appeal by Special Leave the appellants contended that the method adopted by the learned Judge in disposing of the second appeal before him clearly shows that the judgment delivered by him cannot be sustained. The respondents, raised a preliminary objection that since the appellants did not avail themselves of the remedy available to them under the Letters Patent of the High Court either the special Leave granted by this Court should be revoked, or the appeal should be dismissed. Held: It would not be possible to lay down an unqualified rule that special leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case special leave has been granted, it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this Court under article 136, it is not possible and, indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this Court under article 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case. 50 Raruha Singh vs Achal, A.I.R. 1961, S.C. 1097, referred to. In the present case, the learned Judge passed an order which reads more like an award made by an arbitrator who, by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by the High Court in dealing with second appeals, it must obviously be corrected and the High Court must be asked to deal with the matter in a normal way in accordance with law. Therefore, the decree passed in second appeal, must be set aside on the ground that the judgment delivered by the learned Judge did not satisfy the basic and legitimate requirements of a judgment under the Code of Civil Procedure.

In pursuance of its policy of reorganising its business by concentrating more on manufacturing side than agency business, the appellant company gave up more than half of its agencies in Calcutta and some agencies in other places including Madras. The Union representing the workmen wrote to the Labour Commissioner to intervene stating that due to the company 's said policy it feared retrenchment. The company served notices on some of the employees for retrenchment to take effect two days thereafter. Also notice was given to the Labour Commissioner and the Conciliation Officer as required under section 25F (c) of the Industrial Disputes Act. On reference of the dispute to the Industrial Tribunal, the company justified the retrenchment and the Manager of the Calcutta branch gave evidence that retrenchment was done in pursuance of the said policy decision taken by the company. The Tribunal held that a good case for retrenchment was not made out and ordered reinstatement. The Tribunal did not accept the manager 's evidence holding that the development on the manufacturing side of the company 's business should have been contemporaneous with the surrender of agencies in Calcutta. The Tribunal also held that the policy decision was actuated by parochial considerations for transferring the company 's resources from Calcutta to Madras, that there was overload of work on the remaining employees; that the retrenchment could have been avoided by transferring the retrenched employees to other branches specially as their conditions of service included the liability of being transferred; and that the retrenchment was in breach of a. 25F(c) as the notice of retrenchment was two days prior to the date of the retrenchment and not with immediate effect, the proviso to r. 77(1) of the West Bengal/ndustrial Disputes Rules, 1958, did not apply and a notice of one month, as required by sub el. (1) of that rule, was necessary. The company filed a petition for a writ of certiorari. The Single Judge of the High Court set aside the. award and remanded the case to the Tribunal only for enforcing the retrenchment according to the principle of "last come first go". The Division Bench of the High Court in appeal, agreed with the findings of the Tribunal and held that the Single Judge was not competent to interfere with those findings. In appeal this Court, HELD: Some of the findings arrived at by the Tribunal and which influenced its verdict were beyond its competence. The rest were either speculative or contrary to the evidence on record and were consequently liable to be set aside in a writ petition for certiorari. (i) A writ of certiorari is generally granted when a court has acted without or in excess of its jurisdiction. It is available, in those cases 977 where a tribunal though competent to enter upon an enquiry, acts in flagrant disregard of the rules of procedure 0r violates the principles of natural justice where no particular procedure is prescribed. But a mere wrong decision cannot be corrected by a writ of certiorari as float would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceedings based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected. [985] Basappa vs Nagappa, ; , Dharangadhara Chemical Works Ltd. vs State of Saurashtra, [1957] S.C.R. 152 and Andhra Pradesh & Ors. vs Sree Ram Rao, ; , followed. (ii) The Tribunal wrongly rejected the company 's evidence on the ground that the policy decision being the function of the Board of Directors, the Manager was not competent to depose about it and that if the company, wanted to establish it, it should have produced a resolution of the Board. In its letter to the Labour Commissioner and also during conciliation proceedings the union had assumed that the company had taken the said decision, that consequently, retrenchment was apprehended and that therefore that officer should intervene. In these circumstances, the finding that the company had failed to establish its policy was not only beyond the scope of the enquiry before the Tribunal but totally invalid. [987 D F] 1. K. Iron and Steel Co. vs Iron and Steel Mazdoor Union, , followed. (iii) It is within the managerial discretion of an employer to organise and arrange his business in the manner he considers best. So long as that is done bona fide it is not competent for a tribunal to question its propriety. If a scheme for such reorganisation results in surplusage of employees, no employer is expected to carry the burden of such economic tribuanaldead weight and retrenchment has to be accepted as inevitable. however unfortunate it is. The Legislature therefore, provided by section 25F compensation to soften the blow of hardship resulting from 'an employee being thrown out of employment through no fault of his. The Tribunal having come to the conclusion that the said policy was not actuated by any motive of victimisation or unfair labour practice and therefore was bona fide, any consideration as to its reasonableness or propriety was clearly extraneous. It is not the function of the Tribunal, to go into the question whether such 'a scheme is profitable or not and whether it should have been adopted by the employer. So long as retrenchment carried out is bona fide and not vitiated by any consideration for victimisation or unfair labour practice and the employer comes to the 'conclusion that he can carry on his undertaking with reasonable efficiency with the number of employees retained by him after retrenchment, the Tribunal ought not ordinarily to interfere with such decision. The fact that in the earlier year some temporary appointments were made or that the Union 's Secretary deposed that work had accumulated would not mean that the surplus age calculated by the manager was unjustified. Accumulation of work at a given point of time, unless it is constant, may be seasonal or due to various reasons and not necessarily because there Was no surplusage. [987 G, 989 D F] (iv) While reorganising its business, it is not incumbent on a company to develop its manufacturing side at the very place where it has surrendered its agencies, namely, Calcutta, nor to do so at the very same time. These considerations which the Tribunal took into account were 978 totally extraneous to the issue beore it and the Tribunal ought not to have allowed its mind to be influenced by such consideration and thereby disabling itself from viewing the issue from proper perspective. The finding that the policy decision was actuated by parochial considerations, namely, for transferring the company 's resources from Calcutta to Madras at the cost of the former, was without evidence and was entirely speculative. Even assuming that the company decided to concentrate its activity in Madras there is nothing in the Industrial Law to compel it to continue its business in Calcutta. [988 D, G] D. Marcropollo & Co. vs Their Employees Union , Ghatge & Patil Concern 's Employee 's Union vs Ghatge & Patil (Transport) (P) Ltd. [1968] 1 S.C.R. 300, and Workmen of Subong Tea Estate vs The Outgoing Management of Subong Tea Estate, ; , followed. (v) The liability of an employee to be transferred and the right of the company to transfer him did not mean that there was a corresponding obligation on the company to transfer the employee to another branch. No evidence was led by the Union to show that if transferred, these men could have been absorbed at other places, or that there were vacancies or that the work there was the same as was done by them at Calcutta. There was no evidence whether wage scales, dearness allowance and other conditions of service were the same in Madras and other centres. It is true that the company had started developing its manufacturing business in Madras but the Tribunal made_ no enquiry whether these employees could have been fitted in the manufacturing work when they had done only administrative and 'other duties connected with the agency business, yet the Tribunal drew the conclusion that because the company failed to transfer these employees to other centres retrenchment was not justified. [989 G 990 A] (vi) Rule 77(1) of the West Bengal Industrial Disputes Rules, provides that when an employer finds it necessary to retrench any workmen he shall, at least _one month before the date of actual retrenchment, give notice thereof to the Labour Commissioner and the Conciliation Officer. The proviso to it states that where an employer retrenches any workman with immediate effect by paying him wages in lieu of notice he shall immediately after such retrenchment give notice thereof to the said officers. Though the notice of retrenchment was not given immediately after the retrenchment but two days before it, the company had substantially complied with the requirements of the proviso to r. 77(1). The object of the proviso clearly is that where it is not possible for an employer to give one months notice to the two authorities concerned by reason of his retrenching the employees with immediate effect, information should be supplied to the two officers immediately after such retrenchment. instead of giving such information after the retrenchment it is given two days before the retrenchment takes place it is hardly possible to say that the requirement of the proviso was not carried out. So long as the object underlying the proviso was satisfied it did not make any difference that information was given a little earlier than the date when retrenchment took place. [990 C]

No. LXX of 1949. Appeal from the judgment of the Allahabad High Court (Verma and Yorke JJ.) dated the 22nd April, 1943. 100 782 M.C. Setalvad, Attorney General for India (Sri Narain And ley, with him), for the appellant. P.L. Banerjee (H. J. Urnrigal, with him), for the respondents. November 14. MLKHERJEA J. This is an appeal against a judjment and decree of a Division Bench of the Allahabad High Court dated April 22, 1943, which reversed on appeal those of the Civil Judge of Basti dated 6th of November 1939. The suit, out of which the appeal arises, was commenced by the plaintiff, whose successor the present appellant is, to recover a sum of Rs. 11,935 by enforcement of a simple mortgage bond. The mortgage deed is dated the 8th of March 1926 and was executed by Raja Pateshwari Partap Narain Singh, the then holder of Basti Raj which is an impartible estate governed by the rule of primogeniture, in favour of Bhikhiram Sahu, the father of the original plaintiff Ramdeo, to secure a loan of Rs. 5,500 advanced by the mortgagee on hypothecation of certain immovable properties appertaining to the estate of the mortgagor. The loan carried interest at the rate of 9 per cent per annum and there was a stipula tion to pay the mortgage money within one year from the date of the bond. The mortgagor and the mortgagee were both dead at the time when the suit was instituted, and the plaintiff in the action was Ramdeo Sahu, the son and heir of the mortgagee, while the principal defendant was the eldest son of the mortgagor who succeeded to the Basti estate under the rule of primogeniture. It was stated in the plaint that absolutely nothing was paid by the mortgagor or his succes sor towards the mortgage dues and the plaintiff claimed the principal amount of Rs. 5,500 together with interest at the rate of 9 per cent. per annum up to the date of the suit. A number of pleas were taken by the contesting defend ant in answer to the plaintiff 's claim, most of which are not relevant for our present purpose. The 783 substantial contentions raised by the defendant were of a three fold character. In the first place, it was urged that the document sued upon was not a properly attested or valid ly registered document and could not operate as a mortgage instrument in law. The second contention raised was that there was no consideration in support of the transaction, at least to the extent of Rs. 2,000, which was represented by items 3 and 4 of the consideration clause in the document. The third and the last material defence related to a claim for relief under the United Provinces Agriculturists ' Relief Act. The trial Judge held in favour of the defendant on the last point mentioned above and negatived his other pleas. The result was that he made a preliminary decree for sale in favour of the plaintiff for recovery of the principal sum of Rs. 5,500 with interest at certain rates as are sanctioned by the U.P. Agriculturists ' Relief Act; and agreeably to the provisions of that Act the decretal dues were directed to be paid in a number of instalments. Against this decision, the defendant took an appeal to the High Court of Allahabad which was heard by a Division Bench consisting of Verma and York JJ. The learned Judges reversed the judgment of the trial Judge and dismissed the plaintiff 's suit on one ground only, viz., that the bond was not attested in the manner required by law and consequently could not rank as a mortgage bond; and as the suit was instituted beyond 6 years from the date of the bond, no money decree could be claimed by the plaintiff. It is against this judgment that the plaintiff has come up on appeal to this court, and the main contention raised by the learned Attorney General, who appeared in support of the appeal, is that in arriving at its decision on the question of attestation, the High Court approached the matter from a wrong standpoint altogether and on the materi als in the record it had no justification for reversing the findings of the trial court on that point. The question for our consideration is undoubtedly one of fact, the decision of which depends upon the 784 appreciation of the oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a par ticular witness which has escaped the trial Judge 's notice or there is a sufficient balance of improbability to dis place his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact(1). The gist of the numer ous decisions on this subject was clearly summed up by Viscount Simon in Watt vs Thomas(2), and his observations were adopted and reproduced in extenso by the Judicial Committee in a very recent appeal from the Madras High Court(3). The observations are as follows: "But if the evidence as a whole can reasonably be re garded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on confliciting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when (1) Vide Lord Atkin 's observations in W.C. Macdonald vs Fred Latinmer, AI.R. 1929 P.C. 15, 18. (2) at p. 486. (3) Vide Saraveeraswami vs Talluri, A.I.R. 785 estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal)of having the witnesses before him and observing the manner in which their evidence is given. " It is in the light of these observations that we propose to examine the propriety of the decision of the s learned Judges of the High Court in the present case. It will appear that the mortgage deed besides containing the signature of the executant, purports to bear the signatures of three other persons, two of whom are described as attesting wit nesses and the third one as the scribe. Harbhajan Lal and Jawala Prasad Tewari purport to have signed the document as attesting witnesses and Jawala Prasad Patwari is the person who has signed it as the scribe. Jawala Prasad Tewari was admittedly dead when the suit was brought and Harbhajan Lal, the only surviving attesting witness was called on behalf of the plaintiff to prove the execution of the deed as is required under section 68 of the Indian Evidence Act. Harbhajan Lal stated in the witness box that he did sign the document as a witness and so did Jawala Prasad Tewari, but neither of them signed it in the presence of the mortgagor; nor did the mortgagor sign in their presence. On this statement being made, the witness was declared hostile and he was allowed to be cross examined by the plaintiff 's Counsel. He was cross examined by the defendant also and in answer to the questions put to him by the defendant 's lawyer, he stated that he signed the deed at the Collector ate Kutchery, meaning thereby the Bar Library, where he used to sit as a petition writer and the document was taken to him at that place by Bhikhi Ram Sahu, the mortgagee, Ghur Lal, a Karinda of the mortgagor, and Jawala Prasad Patwari, the scribe. Jawala Prasad Tewari signed the deed after him. The mortgagor certainly did not come to that place and his signature was already on the deed when the witness signed it. The details of the defendant 's version relating to execution of this document were given by Jawala Prasad Patwari, who was the principal witness on the 786 side of the defendatnt. He says that he prepared the draft at the sherista or the office of the Raja Sahib which is outside his Kot or palace. The draft was prepared under instructions from Bhikhi Ram, the mortgagee. and Ghur Lal, the Karinda of the mortgagor, both of whom were present when the draft was prepared. After the draft was fair copied and stamped, the witness signed it as the scribe and then it was taken by Bhikhi Ram and Ghur Lal to the Kot or palace of the Raja for his signature. After obtaining the Raja 's signa ture, Bhikhi Ram went away to his house and some time later he as well as Bhikhi Ram and Ghur Lal went to the Collector ate Kutchery, where they took the signatures of Harbhajan Lal and Jawala Prasad Tewari. They then went to the registration office, where the document was presented for registration by Jainarayan Sukul who held a general power of attorney for the Raja. As against this, there is a completely different version given by the plaintiff himself and his witness Buddhu Lal. According to the plaintiff, the document was executed and attested at one and the same sitting in the Kot or palace of the Raja; the terms had been settled beforehand between Bhikhi Ram and the mortgagor and on the 8th of November 1926 the plaintiff himself, and not his father, went to the Raja 's palace at about 10 or 11 A.M. in the morning to get the document executed. He was accompanied by three persons to wit Harbhajan Lal, the deed writer of his father, Buddhu Lal, an old servant of the family, and Jawala Prasad Tewari who was also well known to the plaintiff and was taken to bear witness to the deed. They found Jawala Prasad Patwari already with the Raja when they reached the Kot. The draft was prepared by Buddhu Lal at the suggestion of the Raja. It was the plaintiff 's desire that the final document should be scribed by Harbhajan Lal but as the Raja wanted to oblige Jawala Prasad Patwari, who was the Patwari of Basti proper, the deed was faired out and scribed by Jawala Prasad patwari. After the Raja had put his signature on the 787 document in the presence of Harbhajan Lal and Tewari, both the latter signed the document in the presence of the Raja. The subsequent events narrated by the plaintiff relate to the registration of the document and we do not consider them to be material for our present purpose. This story of the plaintiff is supported materially and on all points by Buddhu Lal, who was an old servant of the family, though he was no longer in service when he deposed in court. There were thus two conflicting versions placed before the court and each side attempted to substantiate its case by verbal testimony of witnesses. The trial Judge was to decide which of the two versions was correct and he ac cepted the story of the plaintiff and rejected that of the defendant. The learned Judges of the High Court in dealing with the appeal do observe, at the beginning of their discussions, that on a question of fact the appellate court should be slow to differ from the conclusions arrived at by the trial Judge who had seen and heard the witnesses; but in their opinion, this rule did not apply to the present case as the trial Judge here did not base his conclusions on the impres sions created in his mind by the witnesses who deposed before him. What the trial Judge relied upon, it is said, was not the demeanour of the witnesses as index of their credibility but upon the inherent improbability of the circumstances deposed to by the defendant 's witnesses. It is observed by the High Court that the trial Judge, when he found the defendant 's story to be improbable, should have considered whether or not there were improbable features in the plaintiff 's case also, and whether the evidence of the plaintiff and his servant Buddhu Lal merited credence at all. The learned Judges of the High Court then proceed to examine and discuss at great length the different reasons put forward by the trial Judge in support of his finding that the defendant 's case was unreliable. These reasons are held to be inconclusive and unsound and the High Court further found that the plaintiff 's story 788 as narrated by him and his servant is improbable and not worthy of belief. In our opinion, the High Court 's approach to the case has not been proper and its findings are unsupportable on the materials in the record. Here was a case where the controversy related to a 'pure question of fact which had to be determined by weighing and appraising of conflicting oral testimony adduced by the parties. It cannot be denied that in estimating the value of oral testimony, the trial Judge, who sees and hears the witnesses, has an advantage which the appellate court does not possess. The High Court was wrong in thinking that it would detract from the value to be attached to a trial Judge 's finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses (1). The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improba bility arising from proved circumstances which, in the opinion of the court, outweighs such finding. Applying this principle to the present case, we do not think that the High Court was justified in reversing the finding of the trial Judge on the question of attestiation of the document. In the opinion of the High Court the story narrated by the plaintiff and his servant is untrue, and the main reason given is that it is not at all probable that the plaintiff and not his father Bhikhi Ram was present at the palace of the Raja when the document was executed. The mortgagor, it is said, was an influential person in the locality occupying a very high social position and it would be indecorous and against Indian customs for a man like Bhikhi Ram not to be personally present when the Raja was going 'to execute a document in his favour. The learned Judges seem to think that the plaintiff was not really at the spot when the mortgage deed was executed and as Bhikhi Ram was dead, this story was manufactured by the plaintiff in order to Vide the observations of Lord Carson in Nether landsche Handel Maatschappij v, R.M.P. Chettiar Firm and Others, A.I.R 1929 P.O. 202, 205. 789 enable him to prove attestation. Mr. Banerjee appearing for the defendant respondent went to the length of suggesting that it was only after Harbhajan Lal turned hostile in the witness box and denied that he attested the document that the new story was invented by the plaintiff. We think that this argument rests on an extremely flimsy basis which does not bear examination. It may be that the Raja was a man of high social position, but it should be remembered that he was in the position of a borrower and moreover it was not the first time that he was borrowing money from Bhikhi Ram. As, however, he was the Raja of Basti, the document was executed at his palace and not in the house of the mortgagee and if as the plaintiff says, the terms were already settled between Bhikhi Ram and the Raja and the only thing left was to embody the agreed terms in writing, we fail to see why it was absolutely necessary for Bhikhi Ram to wait upon the mortgagor personally; and why his adult son, who was sufficiently old and experienced in business affairs, could not represent him in the transac tion. The suggestion of Mr. Banerjee that the new story was invented after the plaintiff had seen Harbhajan Lal giving evidence against him in the witness box is not worthy of serious consideration having regard to the fact that the plaintiff himself stepped into the witness box immediately after Harbhajan Lal had finished his deposition. It seems to us also that the presence of Harbhajan Lal and Buddbu Lal at the sitting when the mortgage transaction took place was quite a probable and natural thing which cannot give rise to any suspicion. It appears from the evidence on the record that Harbhajan Lal, who was a pro fessional deed writer, was usually employed for writing deeds of the plaintiff 's father and he figured either as a scribe or as an attesting witness in various documents to which the plaintiff 's father was a party. It was quite natural for the plaintiff in such circumstances to take Harbhajan Lal alongwith him to the Raja 's palace on the day that the 790 mortgage bond was executed and we see no reason to disbe lieve the plaintiff 's statement that his original intention was to have the deed scribed by Harbhajan Lal. It is said by the High Court that in the mofussil districts in the United Provinces the Patwari is the person generally em ployed for drafting and scribing deeds. This cannot mean that all the people in the district of Basti used to have their deeds drafted and scribed by the Patwari. We have exhibited documents in the records of this case where the name of Harbhajan Lal appears as the scribe; and so far as the plaintiff 's father was concerned, there is no doubt whatsoever that Harbhajan Lal was the scribe ordinarily employed to do his work. In this case also if Jawala Prasad Patwari had not been present on the spot, the plaintiff would certainly have the document scribed by Harbhajan Lal, as so many documents in favour of the plaintiff 's father had been scribed by this man on previous occasions. We see nothing improbable in the story that it was out of deference to the wishes of the Raja that the plaintiff consented to the document being scribed by Jawala Prasad Patwari. As regards Buddhu Lal, it is not disputed that he was an old and a trusted servant of the plaintiff 's family. That he was trusted in business matters is clear from the fact that his name appears as a witness in the registered receipt (exhibit 10) given by Sheo Balak Ram, to whom a sum of Rs. 500 was paid by Bhikhi Ram under the terms of the dis puted mortgage deed. We fail to see why it was improbable that Buddhu Lal would accompany the plaintiff to the Raja 's palace on the day of the execution of the document. The trial Judge relied to some extent upon the fact that the signatures of the executant and Harbhajan Lal were in the same ink in support of his conclusion that Harbhajan Lal signed the document at the place of its execution and not at the Collectorate Kutchery as alleged by him. Speak ing for ourselves, we do not attach much importance to the similarity in the ink which is after all not a very reliable test; but we do agree wit.h the trial Judge in holding that Harbhajan 791 Lal must have signed the document at the time when it was executed and not afterwards; and it is really inconceivable that an old and experienced deed writer like him did not know the requirements of proper attestation. On his own evidence he had attested numerous documents and he could not recall. a single instance where he signed the document in such manner as he did in the present case. The ' way in which the learned Judges of the High Court have attempted to explain away this part of Harbhajan Lal 's evidence does not appear to be satisfactory. The other observation made by the High Court in this connection that in this particular province there are many persons who are acquainted with law but do not care to comply with its requirements on account of carelessness, indifference, sloth or over confidence is not relevant and need not be taken seriously. Whatever that may be, we have no hesitation in holding that Harbhajan Lal knew perfectly well what attestation means in law and he did sign the document as an attesting witness at the Raja 's Kot after the document was executed. Jawala Prasad Patwari is apparently a man under the control of the defendant and cannot be trusted. Why Harbha jan Lal did go over to the defendant 's side is a question which may not admit of an easy answer. The trial Judge seems to be of opinion that it was probably due to the influence exercised by Jawala Prasad Patwari, who is a co villager of Harbhajan. We think it unnecessary to specu late upon these matters, for in our opinion Harbhajan Lal stands condemned by his own statement in court. Our conclusion is that the finding of the trial Judge on the question of attestation is perfectly consistent with the circumstances and probabilities of the case and the learned Judge did not omit anything which ought to have been present to his mind in coming to a conclusion. The evidence on the record taken as a whole fully supports the finding, and in our opinion the High Court has reversed it on totally inade quate grounds. The result is that the appeal must be allowed and the judgment of the High Court should be 792 set aside. As the High Court, however, has dismissed the suit only on the ground of non attestation of the mortgage bond and did not consider the other points which were raised before it, the case must go back to that court in order that the other matters, which have been left undecided, may be heard and decided by the learned Judges and the case dis posed of in accordance with law. The plaintiff appellant is entitled to costs of this hearing as well as the costs of the High Court against defendant No. 1. Appeal allowed.

When there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge 's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial judge on a question of fact. It would not detract from the value to be attached to a trial judge 's finding of fact if the judge does not express ly base his conclusion upon the impressions he gathers from the demeanour of witnesses. The rule is, however, only a rule of practice and does not mean that the court of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. [Where the High Court reversed a finding of fact arrived at by the trial court depending on oral evidence on the ground that the rule that the appellate court should be s1ow to differ from the conclusions arrived at by the trial judge who had seen and heard the witnesses did not apply to the case as the trial judge did not base his conclusions on the impressions created in his mind by the witnesses who deposed before him, but upon the inherent improbability of the circumstances deposed to ,the Supreme Court held that the high court 's approach to the case was not proper and, after weighing the whole evidence in case reversed the finding of the High Court.] W.C. Macdonald vs Fred Latimer (A.I.R. 1929 P.C.15 at p. 18), Watts vs Thomas ([1947] A.C. 484 at p. 486), Sarave eraswami vs Talluri (A.I.R. 1949 P. C. 39.), Nether landsche Handel Maatschappij vs R.M.P. Chettiar Firm and Others (A.I.R. ,205), referred

After the land in suit was sold in June, 1957, for an ostensible sum of Rs. 1,35:000/ , the appellants and respondents 1 to 3 instituted two separate suits for pre emptions in which the sale price inserted in the sale deed was also questioned. The two suits were consolidated and the plaintiffs in each suit were joined as defendants in the other suit under section 38 of Punjab Pre emption Act, 1913. The vendees thereafter admitted the rights of preemptors in both the suits conceding that a decree may be passed in their favour. The appellants accepted the sale price of Rs, 1,35,000 on or before 30th July 1958 and although respondents 1 to 3 wanted this issue to be decided on the merits, the trial court passed a decree in both the ,suits granting respondents 1 to 3 the right to preemption in the first instance on payment of Rs. 1,35,000 and, on their failure to so pay, holding the appellants entitled to exercise the right to pre emption on payment of the said amount on or before 30th October 1958. In an appeal to the High Court, respondents 1 to 3 challenged the correctness of the amount of the deposit to be made. Allowing the appeal, the High Court reduced the amount of deposit to Rs. 1,05,800/ and directed respondents 1 to 3 to deposit the amount within three months. In an appeal by the appellants to this Court against the decision of the High Court, a preliminary objection was taken challenging the appelants right to appeal it was contended that the appellants had based their right to pre emption in their suit on the ground of their being proprietors of the village where the land was situated. They were deprived of that right by the amendment of section 31 of the Punjab Pre emption Act by Punjab Act 10 of 1969 which amendment was retrospective in its operation and prohibited the Courts from passing any decree inconsistent with the amended Act. On the other hand it was contended inter alia for the appellants that they had already secured a decree in their favour by the trial court which had become final 'and with the terms of which the had complied: in the present appeal they were merely seeking modification of the decree of the High Court in favour of respondents 1 to 3 by getting the amount of pre emption money enhanced t0 Rs. 1,35,000/ without claiming any rights of pre emption in their own favour furthermore, the only appeal preferred by respondents 1 to 3 to the High Court was from the decree in 'heir own suit and for this reason also the decree in favour of the appellants by the trial court had become conclusive and unassailable. 130 HELD: Upholding the preliminary objection, It was not open to this Court to pass a decree of pre emption in favour of the appellants who were deprived by the Amendment Act of 1960 of their right to secure such a decree. [133 C D] The contention that the decree in the appellants ' suit had become final and the High Court 's order was only in relation to the suit of respondents 1 to 3 ignored the scheme of section 28 of the Act read with O.20, r. 14, C.P.C. which does not postulate decrees of pre emption in favour of rival preemptors on payment of different amounts of purchase money in respect of the same sale. Such a course may lead to conflicting decisions on the question of value of the property sought to be pre empted for the purposes of a pre emption suit. Besides., the appellants ' right to pre empted the sale under the unamended law was admittedly inferior to that of respondents 1 to 3 and the appellants could only be held entitled to exercise their right after the failure of those respondents to comply with the terms of the decree in their favour. [133 E G] Ram Swarup vs Munshi and Others, ; ; referred to.

On the basis of a simple mortgage executed in his favour in the year 1948, the appellant obtained a decree on 4 9 1967, brought the mortgaged property to sale, purchased it himself on 24 7 1968 and got the sale confirmed by court on 28 8 1968. The first respondent who held a promissory note executed in his favour by the owner of the said property in 1961, instituted a suit for recovery of the sum on 24 9 1964 and got the property attached before judgment on the same day and thereafter obtained a money decree on 30 3 1967, and filed an execution petition for realising the money due under the decree by bringing the property to sale. Thereupon the appellant filed a claim petition under O.21, r. 58 C.P.C., for getting the attachment raised. The claim petition was resisted by the first respondent inter alia on the ground that it was incompetent as the appellant had neither any interest in the equity of redemption nor was he in possession of the property. The trail court allowed the claim petition holding inter alia that what was attached on 24 9 1964 was the entire property and not the equity of redemption alone. The Civil Revision Petition filed by the first respondent against the order of the trial court was allowed by the High Court which held that the appellant having failed to prove that he had an interest in the property on the date of the attachment and was in possession of the property, either actual or constructive, on that date he was not entitled to have the attachment raised. Dismissing the appeal, HELD: The trial court erred in observing that what was attached before judgment on 24 9 1964 was not the equity of redemption but the entire property. There could be no doubt that on 24 9 1964 when the property was attached before judgment long after the mortgage dated 31 7 1948 and two years before the suit was filed on the mortgage in 1966, the mortgagor had the equity of redemption and that what could have been attached in law on 24 9 1964 was the equity of redemption alone and not the entire interest in the property. The property. The appellant had no doubt an interest in the property as mortgagee, but he could not have been in possession of the property as he was only a 113 simple mortgagee. He was a secured creditor as he had a mortgage in his favour, and any attachment effected after the date of the mortgage and during its subsistence could only be subject to that mortgage. Since he had no interest in the equity of redemption on the date of attachment, he could not have had any objection to that right of the mortgagor being attached by the first respondent. Therefore, he was not a person who could, in law, file any claim petition under O. 21; r. 58 objecting to the attachment of the equity of redemption. [116 A; C D; F H] The attaching creditor can bring the property to sale only subject to the mortgage as long as it is subsisting. That is to say, he could bring only the mortgagor 's equity of redemption to sale if it had not already been extinguished by it sale in execution of any decree obtained on that mortgage. But if the equity of redemption has already been sold after the date of the attachment, the attaching decree holder could proceed only against the balance, if any, of the sale price left after satisfying the mortgagee decree holder 's claim under the decree. The mortgagee 's right is thus not affected all. [117 B C]

Motibhai created two mortgages in respect of the same property in the years 1871 and 1893 in favour of one Nanaji who died somewhere between 1 890 and 1912 leaving behind his two sons Hari and Purushottam as his heirs and legal representatives. They both sold the entire mortgagee rights and interest to one Ganpatram on 4th July, 1912, who in his turn sold the mortgagee rights in a part of the mortgaged property, namely, common latrine to one Vamanrao. Ganpatram died and his son Chhotalal sold away his rights as a mortgagee in possession in respect of the rest of the properties which still remained with him, to Chhaganlal Keshavlal Mehta, the appellant defendant No. 1. Mortgagor Motibhai also died leaving behind his son Chimanrai. Chimanrai died leaving behind his widow Chhotiba and a daughter Taralaxmibai. On September 12, 1950 Taralaxmibai sold her right, title and interest in the suit property to one Shantilal who later on conveyed his right, title and interest in the property to the respondent plaintiff Narandas Haribhai Patel. During the life time of Chimanrai, Ganpatram, the mortgagee had sent a notice, Exhibit 77 dated 15th April, 1913 informing him that the mortgaged property was in a dilapidated condition and required repairs. He further called upon Chimanrai to pay the amount already spent by him towards the repairs to get further repairs done or in the alternative pay up the mortgage amount and redeem the property. Chimanrai, denied his responsibility. After the death of Chimanrai Chhotalal gave a similar notices, Exhibits 68 and 78, dated 21st of September, 1933 and 6th October 1933 to Taralaxmibai daughter of Chimanrai and to Chhotiba, the widow to the same effect. Both Chhotiba and Taralaxmibai denied their liabilities. Narandas after the purchase of the mortgagor 's rights from Shantilal filed a suit for redemption impleading both the assignees of the mortgagee 's rights, namely, Chhaganlal Keshavlal Mehta, the appellant as defendant No. I and Vamanrao as defendant No. 2. The suit was dismissed by the trial court on the ground that the plaintiff had no right to redeem In this view of the matter it was not necessary to decide other issues but the trial court recorded findings on other issues also including the issue of estoppel. The appeal and the cross objection filed by the parties were 167 allowed by the Assistant Judge holding that plaintiff had purchased the equity of redemption and so he was entitled to redeem and that the suit was not barred by estoppel. He however remanded the case for deciding the remaining issues. On remand the Joint Civil Judge held that Chimanrai, his widow Chhotiba and his daughter Taralaxmibai relinquished their right, title and interest in the suit property and, therefore, Taralaxmibai had no subsisting interest or title to transfer to the plaintiff or his predecessor in interest. He further held that the suit was barred by time and estoppel, and that defendant No. 1 had spent a substantial amount on repairs. On these findings the suit was dismissed once again. During the pendency of the appeal by the respondent, Vamanrao died in August, 1958. His heirs were, however, not brought on the record. The appeal was allowed as against defendant No. I but dismissed as abated against defendant No. 2 and it was held that the respondent was entitled to redeem the mortgaged property on payment of the mortgaged money as well as the expenditure incurred on repairs, and that the suit was neither barred by time nor by estoppel. On further appeal to the High Court a learned single Judge reversed the Judgment and decree of the lower appellate Court and dismissed the suit. The respondent plaintiff took up the matter in the letters patent appeal and the appellant defendant No. 1 also filed a cross objection. A Division Bench of the High Court allowed the appeal and decreed the suit reversing the finding of the learned Single Judge that the respondent plaintiff had no right to sue. The Division Bench, however, granted a certificate of fitness of appeal to the Supreme Court. Dismissing the appeal, the Court ^ HELD: 1. Under section 60 of the Transfer of Property Act, a co mortgagor cannot be permitted to redeem his own share of the mortgaged property only on payment of proportionate part of the amount remaining due. In other words, the integrity of the mortgage cannot be broken. [173 G] 2. It is, however, a well recognised principle that even if all the mortgagees are not before the court in a suit filed by the mortgagor for redemption of the property, but the mortgagor is prepared to pay the entire amount due at the foot of the mortgage to such mortgagees as are before the court and gives up his right under the mortgage as against those mortgagees who are not before the court, The court can pass a decree for redemption directing that the entire mortgage amount should be paid to the mortgagees who are actually before the court. [174 D F] Motilal Yadav vs Samal Bechar , approved. If one of the defendants in a suit dies and his heirs are not brought on record, the suit certainly would abate as against that party. The suit, however, G could not abate as against the other surviving defendants. A question may arise whether the suit is maintainable against the surviving defendants. In the instant case, the Suit abated as against defendant No. 2 in respect of the common latrine. But the suit may proceed against the surviving appellant defendant No. 1 if the respondent plaintiff is prepared to pay the entire mortgage consideration. [174 F G] 3:2. A person may be a necessary party in a suit but he may not be a necessary party in the appeal. [175 A] 168 4:1. To bring the case within the scope of estoppel as defined in section 115 of the Evidence Act: (i) there must be a representation by a person or his authorised agent to another in any form a declaration, act or omission; (ii) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract: (iii) the representation must have been meant to be relied upon; (iv) there must have been belief on the part of the other party in its truth; (v) there must have been action on the faith of that declaration, act or omission, that is lo say, the declaration, act or omission must have actually caused another to act on the faith of it, and to alter his former position to his prejudice or detriment; (vi) the mis representation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (vii) the person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affair or had means of knowledge, there can be no estoppel; (viii) only the person to whom representation was made or for whom it was designed can avail himself of it. A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee. [176 C F] 4:2. The difference between an admission and estoppel is a marked one. Admissions being declarations against an interest are good evidence but they are not conclusive and a party is always at liberty to withdraw admissions by proving that they are either mistaken or untrue. But estoppel creates an absolute bar. Estoppel deals with questions of facts and not of rights. A man is not estopped from asserting a right which he had said he would not assert It is also a well known principle that there can be no estoppel against a statute. [175G, H 176 B] 4:3. In the instant case (i) the ingredients of section 115 of the Evidence Act have not been fulfilled. No representation was made to defendant No. 1, therefore, estoppel cannot be pleaded; (ii) the representation was not regarding a fact but regarding a right of which defendant No. I or his predecessor in interest had full knowledge or could have known if he had cared to know lt is difficult to say that defendant No. ] has moved his position on account of the representation made by The mortgagor or his heirs or assignees, [176 G H]

A Hindu father, speculating in gold and silver, lost heavily and sought to recoup by borrowing on a mortgage. The mort gagee obtained a decree and sought to execute it by sale of the mortgaged property. The sons and the wife sued for a declaration that the decree was not binding since the debt though antecedent was immoral (avyavaharik). The trial court found in their favour and on appeal the District judge affirmed its decision. On second appeal the High Court held that it was for the plaintiff s to prove not merely that the antecedent debt was immoral but also that the mortgagee had notice of the said character of the debt and since they had led no evidence to discharge that onus, they were not entitled to a decree. The plaintiffs came up on appeal by special leave: Held, that the High Court took the correct view of the law and the appeal must fail. Any attempt to test the correctness of the principles laid down by the Privy Council in the case of Suraj Bunsi Koer, which have held the field for more than three quarters of a century, purely in the light of ancient Sanskrit texts would now not merely be hit by the principle of state decisis, which must inevitably come into operation, but would also be inexpedient and futile. Suraj Bunsi Koer vs Sheo Proshad Singh, (1879)) L.R. 6 I.A. 88 and Brij Narain vs Mangla Prasad (1923) L.k. 51 I.A. 129, applied. The principles laid down in those two cases make no distinc tion between an alienation made for the payment of the father 's antecedent debt and an alienation made in execution of a decree passed against him and in both cases the sons must prove not only the immoral character of the antecedent debt but also the knowledge of the alience. Case law considered.

The respondents filed a suit against the appellant for redemption of a mortgage. The suit was decreed subject to payment of a sum of Rs. 9,224 12 0 towards principal and interest within six months. A preliminary decree was directed to be drawn up. The appellant filed an appeal in the Court of the District Judge and inter alia urged that "the court ought to have directed the Commissioner to deduct the rent received (i) first towards taxes, then (ii) towards interest of the amount, of repairs etc., then (iii) towards interest on the principal amount, then towards (iv) amount of repairs and expenses and then towards the principal of the loan. " The appeal was dismissed. A second appeal in the High Court also failed. The appellant came to this Court by special leave. It was urged on his behalf that the priorities in section 76(h) of the Transfer of Property Act were subject to the priorities in section 76(d) and therefore interest on the principal amount should, in the present case, have been given priority over the payment of the expenditure on maintenance and repairs. Held:The appeal must fail. The object of section 76(d) is not to fix any priorities but to make it obligatory on the mortgagee, in the absence of a contract to the contrary to carry out necessary repairs to the property but the amount he can spend is limited to the difference between rents and profits and payments mentioned in cl. (c) and the interest on the principal money. It is cl. (h) which directs the mortgagee to apply the receipts from the mortgaged property in a certain manner. The order of application is (1) the expenses properly incurred for the management of the property and the collection of rents and profits and the other expenses mentioned in cls., (c) and (d), (2) interest thereon, (3) the surplus, if any, has to be utilised towards reduction of interest on principal money and (4) the principal money itself. There is no contradiction between section 76(d) and section 76(h). The fact that section 76(d) limits the scope of the liability has no bearing on the question whether it lays down any order of priorities inconsistent with those mentioned in cl. (h) [428B E]

The appellant 's mother executed a gift deed in favour of the appellant claiming that she inherited the property in 1920 on the death of her husband, who had inherited it from her father in law. The respondents claiming title to the property filed a suit challenging the gift deed on the ground that the father in law of the donor (mother) had survived the husband and therefore she could not have inherited the property under the Hindu Law as then prevailing. For this purpose the respondents relied upon a statement, that the father in law had survived the husband, made by the donor in a mortgage suit in 1925, to establish her case. When this statement was made there was no dispute in the faimly. On the questions whether, (i) this statement in the mortgage suit was admissible in evidence and (ii) the statement made by the donor in the gift deed was admissible to contradict the statement she made in the mortgage suit, HELD : (i) This statement in the mortgage suit, which was against proprietary interest of the mother would be admisible in evidence under section 32(3) of the Evidence Act, as she was dead. It could not be an admission. so far the appellant was concerned, butit would certainly be a piece of evidence to be taken into consideration, The admissibility of statements under s.32 (3) of the Evidence Act does not arise unless the party knows the statementto be against his interest. But the question whether the statement was made consciously with the knowledge that it was against the interest of the person making it would be a question of fact in each case and would depend in most cases on the circumstances in which the statement was made. [158 F G; 159 A B] Srimati Savitri Debi Raman Bijoy, L.R. (1949) LXXVI I.A. 255,Tucker vs Oldburry UrbanDistrict Council, L.R. [19121 2 K.B. 317 and Ward vs H. section Pitt , relied on. The statement in question was made by the mother consciously and not at the instance of any one and she must, in the circumstances of the case, be presumed to know that the statement was against her proprietary interest, for thereby she became the widow of the predeceased son of her father in law. [159 G] (ii) Assuming that the statements in the gift dead would be admissible under section 158 of the Evidence Act the statement made in the mortgage suit in 1925 carries greater weight as it was made at a time when there was no dispute in the family. [160 E F]

A decree was passed in a money suit against N and his four sons who were members of a Mitakshara Hindu joint family. In execution of that decree the shares of the four sons in the joint family properties, described altogether as 4/5 th share, were put up for auction in December, 1936 and purchased by section N 's interest was not put up for sale as it was the subject matter of insolvency proceedings. The sale to S was duty confirmed. S sold the properties to P. On November 6, 1939 an order was made under 0. 21 rr. 33(2) and 96 of the Code of Civil Procedure for delivery of joint possession of the properties purchase to P along with the members of the joint family already in possession. This order was carried out and possession was delivered to P by publishing that fact by beat of drum as prescribed in the rules. Subsequently P retransferred the properties to section On October 16, 1951 S filed a suit against the then members of the joint family and various alienees asking for a partition of the joint family properties into five equal shares and thereafter for possession of four of such shares by removing the defendants from possession. The trial court decreed the suit but held that S was not entitled to a 4/5th share but only to a 2/3rd share because before the decree a 5th son had been born to N who had not been made a party to the suit or the execution proceedings and whose share had consequently not passed under the auction sale. Some of the defendants filed an appeal to the High Court which allowed the appeal holding that the suit was barred by limitation under article 144 of Schedule 1 to the Limitation Act. S had field a coss objection in the High. Court on the ground that he should have been held entitled to a 4/5th share of the properties which was dismissed by the High Court without discussion of the merits in view of its decision on the question of limitation. S having died the appellants as his successors in interest appealed to this Court under article 133 of the Constitution. The two questions that arose for decision were (1) whether the suit was barred by limitation under article 144 or article 120 and (2) whether S was entitled to a 4/5th share. HELD : (Per Sarkar and Raghubar Dayal, JJ.) (i) (a) 'Me view that the suit was barred under article 144 of the suit presented great difficulties. The article obviously contemplates a suit for possession of property where the defendant might be in possession of it as against the plaintiff. However, the purchaser of a copartner 's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which an partition might be found to fall to the share of the copartner whose share he has purchased. His right to possession would date from the period when a specific allotment is made in his favour.[632 H] 629 S was therefore not entitled to possession till a partition had been made. As possession of the defendants could tie adverse to him only if he was entitled to possession the difficulty in applying article 144 arose. [633 B] Sidheshwar Mukherjee vs Bhubneshwar Prasad Narain, ; , relied on. Vyapuri vs Sonamma Boi Ammani, Mad. 81, referred to. Mahant Sudarsan Das vs Mahan Ram Kirpal Das, (1949) L.R. 77 I.A 42, distinguished. (b) Even on the assumption that article 144 applied the suit was not barred. In the present case the defendants were not in uninterrupted possession for twelve years as required by the Article. By the delivery of symbolical possession under the order of November 6, 1939, the adverse possession of the defendants was interrupted. Time had therefore to commence to run from that date, and the suit having been brought within twelve years of that date, it was not bared under that article. [633 F G] Sri Radha Krishna Chanderji vs Ram Bahadur, A.I.R. (1917) P.C. 197, relied on. It could not be said that the order of delivery of possession was a nullity though S and his transferee who had purchased an undivided share in copartners property were not entitled in law to any possession at all. In making the order the learned Judge had gone wrong in law but he had acted within his jurisdiction. Such an order has full effect if it is not set aside. [634 A B] Yelumalai Chetti vs Srinivasa Chetti, Mad. 294, distinguished. Mahadev Sakharam Parkar vs janu Namji Hatle, (1912) I.L.R. and fang Bahadur Singh vs Hanwant Singh All. 520, held inapplicable. (ii) Article 120 applies to suits for which no period of limitation is provided elsewhere and prescribes a period of six years commencing from the date when the right to sue accrues. [636 D] The right to sue accrues for the purpose of article 120 when there is an accrual of the right asserted in the suit and an unequivocal threat by the respondent to infringe it. In the present case there was nothing to show that the right was ever challenged in any way by the respondents. It was impossible therefore to hold that the suit was barred under article 120. [636 F] Mst. Rukhmabai vs Lala Laxminarayan, ; and C. Mohammad Yunus vs Syed Unnissa, ; , relied on. Bai Shevantibai vs Janardan R. Warick, A.I.R. 1939 Bom. 322 disapproved in so far as it held that the right to sue accrued from the date of sale. (iii) The cross objection had no merit. What S purchased at the auction sale was the share of the sons of S then bom, in the joint family Properties. At the date of the auction sale that share which was originally 4/5th had been reduced to 2/3rd by the birth of another son to N who had not been made a party either to the suit or the execution proceedings. What was purchased at the execution sale was only the shares of the four elder sons of N and their share at the date of sale was 2/3rd. That 630 being so S was not entitled to get the 1/6th share of the fifth son also allotted to him in the partition suit. [637 B C] Per Ramaswami, J. : (i) The purchaser of a share of joint Hindu family property doe , not acquire any interest in the property he cannot claim to be put. in possession of any definite place of Property. A suit for partition filed by the alienee from a is not, in a technical sense, a suit for partition and such a suit have the necessary effect of breaking up the joint ownership of the members of the family in the joint family in the joint property nor the corporate character of the family. Such being the rights of the alienee his right to sue for partition cannot be said to be a continuing right subject to no period of limitation for enforcing it. [638 F H] Aiyyagari Venkataramayya vs Aivyagari Ramayya, I.L.R. 25 referred to. (ii) Though the alienee of an undivided interest of a Hindu is not entitled to joint possession with other copartners or to separate possession of any part of the family property he is entitled to obtain possession of that part of the family property which might full to the share of his alienor at a partition. [640 B] In the present case the alienee instituted a suit for general the prayer that he may be put in possession of that part of the family property which may be allotted to his share. It is not right to such a suit as a suit for mere partition. The main relief sought by the plaintiff is the relief of possession of that part of the property which may be allotted to the alienor 's share and a relief for partition is only a machinery for working out his right and ancillary to the main relief for possession of the property allotted to the alienor 's share. what the plaintiff seeks is actual delivery of possession. Such a suit falls within the of article 144 of the Limitation Act. [640 B D] Thani vs Dakshinamurthy. I.L.R. , appoved (iii) the possession of the non alieniting members of the family cannot be said to be possession on behalf of the alienee also because the purchaser alienee does not acquire in interest in the property sold and does not become tenant in common with the members of the family tier is he entitled to joint possession with them. In the absence of clear acknowledgement of the right of the alienee or participation in the enjoyment of the family property by the alienee the possession of his alienors share. The fact that the alienee has purchased an undivided interest is not inconsistent with the conception of adverse possession, of that interest. [640 E H] Sudarsan Das vs Ram Kirpat Das, A.I.R. 1950 P.C. 44, reliel on. According to the third column of article 144, time begins to run from the date when the possession of the defendant becomes adverse to the plaintiff. In the present case, therefore, adverb possession bengon to run from the date of purchase of the undivided share i.e. front December 21. [640 E; 641 FF] (iv) However the grant of symbolic possession bv the court in favour of P after notice to defendants 2 to 5 was tantamount in law to delivery of actual possession and therefore efficient to break up the continuity of adverse "scion in favour of the defendants. Even assuming that the grant of symbolic possible ought not to have been made and that, 631 the executing court acted illegally in making such an order, it could not be argued that the executing court had no jurisdiction to make the order or that the act of symbolic possession was a nullity in the eye of law. [642 B] Yelumalai Chetti vs Srinivasa Chetti,I.L.R. , referred Sri Radha Krishna ' Chanderii vs Ram Bahadur, A.I.R. 1917 P.C. 197, relied on. According the suit of the plaintiff was no.t barred by limitation under ' article 144 of the Limitation Act and the view taken by the High Court on this part of the case was not correct. [642 D]

Appeal No. 63 of 1952. Appeal from the Judgment and Order dated 7th November, 1950, of the High Court of Judicature at Hyderabad (Siddique, Rao and Deshpande JJ.) in Civil Case No. 9 A 5 1 of 1950. M. C. Setalvad, Attorney General for India, and C. K. Daphtary, Solicitor General for India (G. N. Joshi and Ghulam Ahmad Khan, with them) for the appellants. B. Somayya and Akbar Ali Khan (B. V. Subharayudu, with them) for the respondents. December 9. The Judgment of the Court was delivered by MUKHERJEA J. This appeal which has come before us on a certificate granted by the High Court of Hyderabad under article 132 (1) of the Constitution is directed against a judgment of a Full Bench of that Court dated November 7, 1950, passed on a petition under article 226 of , the Constitution. By this judgment the learned Judges of the High Court declared an Act, known as the Waliuddowla Succession Act of 1950, void under article 13(2) of the Constitution to the extent that it affected the 'rights of the present, respondents 1 to 12 who were the petitioners 'in the article 226 proceeding. The object of the impugned Act, which received the assent of H.E.H. the Nizam as Rajpramukh of Hyderabad on April 24, 1950, was to put an end to the disputes that existed at the time regarding succession to the matrooka or personal estate of Nawab Waliuddowla ', 'a wealthy nobleman and a high dignitary of Hyderabad, and what, in substance, the Act provided was to dismiss the claims of succession to the said properties put forward by two of the alleged wives of the late Nawab, named Mahboob Begum and Kadiran Begum, and their children. These two ladies as Well as their 406 children filed a petition before the Hyderabad High Court under article 226 of the Constitution challenging the validity of the Act mentioned aforesaid inter alia on the grounds that it conflicted with the petitioners ' fundamental rights guaranteed under articles 1419(1)(1) and 31(1) of the Constitution and praying for appropriate reliefs by way of declaration and writs of certiorari and prohibition. The claim was resisted by Ameerunnissa Begum, an admitted wife of the late Nawab, and her children, and they are the persons who would primarily be benefited by the provisions of the impugned Act. The High Court ,substantially accepted the contentions of the petitioners and declared the Act to be void so far as it affected them. Against this decision the present appeal has been taken to this court by Ameerunnissa Begum and her children. To appreciate the contentions that have been raised by the parties, a brief resume of the antecedent events leading up to the passing of the disputed legislation would be necessary. Nawab Waliuddowla, who was one of the Paigah noblemen of Hyderabad and was at one time, the President of the Executive Council of the State, died at Medina on February 22, 1935, while on a pilgrimage to Hedjaz. Besides extensive jagir properties appertaining to the Paigah which fetched him an annual income of nearly Rs. 1,36,000 he left behind him matrooka or personal estate of considerable value. As regards the surviving relations of the Nawab, who could claim rights by inheritance to his estate, it is not disputed that Ameerunnissa Begum was one of the legaly wedded wives of the Nawab and that she and the five children which the Nawab had by her are entitled to their legitimate shares in the properties left by the deceased, There is also no dispute that the Nawab went through a legal marriage with a lady named Fatima Begum who is still alive. It appears, however, that she left her husband soon after marriage and did not return to him any time thereafter. During the period, which is material for our present purpose, the 407 only claim which she put forward against the estate of the Nawab was one for recovery of her dower debt &mounting to one lakh of rupees. The whole dispute between the parties to this litigation really centered round the point as to whether the other two ladies, namely Mahoob Begum and Kadiran Begum,who are respectively respondents I and 5 in this appeal, were, the lawfully married wives of the late Nawab or were they merely in his keeping as. kavases or permanent concubines? If there was no legal marriage between them and the Nawab, it is not disputed that their children, though admittedly begotten on them by the Nawab, would not be entitled to any share in the matrooka or personal estate left by the deceased. , This dispute first arose before the Paigah Trust Committee whose duty it was to distribute the income of the Paigah estate amongst the heirs of the late Nawab. In April, 1935, shortly after Ameerunnissa Begum, who had accompanied her husband to Mecca, returned to Hyderabad after the death of the latter, the Committee addressed letters to Ameerunnissa Begum, Fatima Begum and also to Mahboob Begum enquiring about the wives and children left, by the Nawab. No letter, it seems, was sent to Kadiran Bi. On a consideration of the replies given by the several addressees and also of the statements made on their behalf at the hearings before the Committee, the latter submitted a report to the Executive Council of the Nizam. The Paigah Committee proceeded on the footing that the Nawab 's marriage with Ameerunnissa Begum was beyond dispute, but as Mahboob Begum did not produce her marriage certificate even after repeated demands by the Committee, she as well as Kadiran Bi were treated as concubines. The Committee recommended that the annual income of the Paigah should be divided in the proportion of 60 to 40 amongst the legitimate and illegitimate relations of the Nawab 60% of the income was to go to Ameerunnissa Begum and her issues and the remaining 40% was to be paid to Mahboob and Kadiran as well as to 53 408 their children. These recommendations were approved by the Nizam in a Firman dated 9th July, 1936. Previous to this, express intimations were given to the surviving relations of Waliuddowla under orders of the Nizam that whatever disputes might exist among them regarding the matrooka or personal estate of the Nawab, should be decided by proper proceedings in a court of law and pending such decision the estate might be kept ' under the supervision of the Paigah Committee. On the 8th February, 1938, Mahboob Begum and her children filed a suit in the Dar ul Quaza, which was a court established under the law for deciding rights of succession, marriage, divorce etc. of the Muslims in the Hyderabad State, praying for a declaration that Mahboob Begum was the legally married wife of the Nawab and the children were his legitimate children and for other consequential reliefs in the shape of participation in the matrooka and recovery of the dower debt payable to Mahboob Begum. Both Ameerunnissa Begum and Kadiran Bibi as well as their children were among the defendants impleaded in the suit. During the pendency of the suit and before it came on for actual hearing, there was a Firman issued by the Nizara on the 9th February, 1937, on the application of Ameerunnissa Begum, directing the withdrawal of the suit from the Dar ul Quaza court and the appointment of a Special Commission consisting of Nawab Jiwan Yar Jung, the then Chief Justice of Hyderabad and the Judge of Dar ul Quaza before whom the suit was pending, to investigate the matter and submit a report to the Nizam through the Executive Council. Proceedings before the Special Commission commenced on 27th March,1939. Kadiran Bibi filed a plaint before the Commission claiming on behalf of herself and her children the identical reliefs which were claimed by Mahboob Begum and her children, and though this plaint was at first rejected by the Commission it was subsequently entertained under specific orders of the Executive Council. It appears that Fatima Bibi also lodged a plaint in respect of 409 her Mahar against the estate of the Nawab and ,this matter was also directed to be investigated by the Commission. The enquiry before the commission was a long affair in which a large volume of evidence, both oral and documentary, was adduced. The Commission submitted the report on October 16, 1944, and their findings, in substance, were that both Mahboob Begum and Kadiran Begum were legally married wives of Waliuddowla and hence they as well as their children were entitled to have their legitimate shares in the matrooka. Fatima Begum was also held to be a legally wedded wife of the Nawab, and as such entitled to the dower claimed by her. When the report came up for consideration by the Executive Council the Members of the Council were divided in their opinion. A minority was in favour of accepting the findings of the Commission but the majority view was that further expert opinion should be taken in the matter. Eventually on the advice of the Council the Nizam directed by his Firman dated 27th August, 1945, that the report of the Special Commission should be scrutinised by an Advisory Committee consisting of three persons, namely, two Judges of the High Court and the Legal Adviser of the State. This Committee was directed to examine fully the bulky report of the Special Commission and submit their opinion with a view to assist the Executive Council in coming to their decision. They were not to take any fresh evidence or hear any further arguments from the parties. The Advisory Committee submitted their report on 24th November, 1945, and the Committee held differing from the view taken by the Special Commission that neither Mahboob Begum nor Kadiran Begum was the legally wedded wife of Nawab Waliuddowla. Despite this report, the majority of the Executive Council recommended that the findings of the Special Commission should be accepted. The Nizam accepted this recommendation and by his Firman dated 26th June, 1947, directed that the findings of the Special Commission should be implemented at an early date. 410 There was a proposal at the beginning that the members of the Special Commission themselves should be asked to implement their findings, but eventually it was decided by a resolution of the Executive Council dated 22nd September, 1947, that the task of en forcing the recommendations of the Commission should be entrusted to the Chief Justice of the Hyderabad High Court. It appears that in subsequent communications to the Executive Council the Nizam expressed doubt regarding the status of Mahboob Begum and Kadiran Begum and suggested the replacement of the Firman of 26th June, 1947, by now orders in the nature of a compromise. The Executive Council, however, stuck to their decision and on 17th June, 1948, the findings of the Special Commission were transferred to the Chief Justice for executing the same as early as possible. On 2nd July, 1948, another Firman was issued by the Nizam directing that the Chief Justice before making the final distribution of the matrooka should submit his report through the Executive Council to His Exalted Highness for his sanction. This direction was embodied in a resolution of the Executive Council dated 2nd September, 1948. The police action in Hyderabad commenced soon after that and it was on 25th September, 1948, after the police action had terminated and a Military Governor was placed in charge of the Hyderabad State that a formal communication of the resolution mentioned above was made to the Chief Justice. Soon afterwards on the application of Ameerunnissa Begum made to the Military Governor the execution proceedings before the Chief Justice were stayed by an order dated 16th October, 1948. This stay order was again cancelled on 5th November, 1948, and the execution proceedings were allowed to continue. On 5th December, 1948, the Chief Justice submitted his report regarding the distribution of the matrooka to the Executive Council. Strangely, however, by a Firman dated 24th February, 1949, the Nizam purporting to set under the advice of the Military 411 Governor directed that the findings of the three men Advisory Committee, who differed from the views taken by the Special Commission, should be given effect to. In other words, the claims of Mahboob Begum and Kadiran Begum were dismissed and Ameerunissa Begum was directed to pay one lakh of rupees to Fatima, Begum as the dower due to the latter. Protest was lodged against the decision by Mahboob Begum and Kadiran Begum and again a Firman was issued by the Nizam under the advice of the Military Governor on 7th of September, 1949. By this Firman the earlier order of 24th February, 1949, was revoked and the whole case was referred for opinion and report to Sir George Spence, the Legal Adviser to the Military Governor, who was directed to hear the parties and take such further evidence as he considered necessary. The enquiry then began before the Legal Adviser but neither party adduced any evidence. Sir George Spence submitted his report on 7th January, 1950. The material findings and recommendations in his report were as follows: " 76. My finding on the case is that neither Mahboob Begum nor Kadiran Begum was married to the Nawab with the result that these ladies and their children are not entitled to participate in the distribution of the matrooka. 77.If this finding is accepted, the order required for its implementation would be an order dismissing the claims of Mahboob Begum and Kadiran Begum on the matrooka and directing Ameerunnissa Begum to pay one lakh of rupees out of the matrooka to Fatima Begum on account of Haq Mahar. " The Constitution of India came into force on 26th January, 1960. As Hyderabad was integrated with the Indian Union and the Nizam lost the absolute power which he could exercise previously, it was no longer within his competence to issue a Firman on the terms of the report of Sir George Spence and make it legally binding on the parties. Recourse was 412 therefore had to legislation and on April 24, 1950, this impugned Act was passed which purported to give a legislative sanction to the findings in the report of Sir George Spence. The material provision of the Act is contained in section 2, clause (1), which *lays down 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 Waliuddowla are hereby dismissed". The second clause of this section provides that a sum of one lakh of rupees shalt be paid to Fatima Begum on account of her Haq Mahar. Under section 3, the decisions affirmed in section 2 cannot be called in question in any court of law and finally section 4 provides that the High Court of Hyderabad shall, on the application of any person interested in the decision affirmed in section 2, execute the said decision as if it were a decree passed by itself and such person was a decree holder. It is this Act which has been pronounced to be invalid by the High Court of Hyderabad to the extent that it dismisses the claims of Mahboob Begum and Kadiran Begum as well as of their children to the personal estate of Nawab Waliuddowla. It may be conceded that before the coming in of the Constitution, the Nizam of Hyderabad practically enjoyed unfettered sovereign authority and however much the various Firmans, which were issued by him in connection with the present dispute, may appear to be capricious and arbitrary, strictly speaking they were not 'unconstitutional in the sense that they were beyond his competence as the supreme legislature in the State. After the Constitution came into force and prior to the setting up of a duly constituted legislature in the Hyderabad State, the legislative authority undoubtedly vested in the Nizam as the Rajpramukh of the State under the provision of article 385 of the Constitution read with article 212 A (2) inserted by the President 's (Removal of Difficulties) Order No. II dated 26th January, 1950; but the legislative power exercisable by the Nizam was a strictly limited power. The Rajpramukh 413 was not only to act in conformity with the provision of article 246 of the Constitution and keep within the bounds of the legislative sphere laid down with reference to the entries in the different legislative lists, but the legislation must not be in conflict with any of the fundamental rights guaranteed under Part&, III of the Constitution. The impugned Act, as its title and preamble show, was passed with the avowed object of terminating the disputes relating to succession to the estate of the late Nawab Waliuddowala. Although in the report of Sir George Spence it was held that Mahboob Begum and Kadiran Begum were not the legally wedded wives of the Nawab and their children were not legitimate, there was no express declaration to that effect in the operative portion of the Act which merely lays down that the claims of these two ladies as well as of their children to participate in the distribution of the matrooka of the late Nawab are dismissed. The legislation may be said to relate to succession and indirectly to marriage also and as such may come within the purview of entry 5, List III of the Seventh Schedule to the Constitution. It has not been argued by Mr. Somayya, who appeared for the respondents, that a legislation on these topics must be a general legislation; but it has not been disputed by either side that no valid legislation could be passed under these heads which is discriminatory in its character and offends against the equal protection clause embodied in article 14 of the Constitution. The contention of the learned Attorney General is that the legislation in the present case does not violate the principles of the equality clause and he has attempted to combat with much force the decision of the High Court on this point. This is the main question in the case which requires to be examined carefully. The nature and scope of the guarantee that is implied in the equal protection clause of the Constitution have been explained and discussed in more than one decision of this court and do not require repetition. It is well settled that a legislature which 414 has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects ; and for that purpose it must have large powers of selection or classification of persons and ,*things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per so amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view. The learned Attorney General in the course of his argument laid considerable stress upon the decision of this court in Chiranjit Lal vs The Union of India(1) and he attempted to call in his aid the two propositions recognised and relied upon in that decision, namely, (1) that the presumption is always in favour of the constitutionality of an enactment, and (2) a law may be constitutional even though it relates to a single individual, family or corporation. The pro positions themselves may be well founded but whether or not they would apply to a particular case would depend upon the facts and circumstances of that case. In Chiranjit Lal 's case (1), it is to be noted, the circumstances were somewhat exceptional. The legislation in that case related to a company which was engaged in production of a commodity vitally essential to the community, and in judging the reasonableness of the classification in such cases the court has undoubtedly to look to the social, political and economic interest of the community as a whole. In doing so, as Prof Willis observed, the court will assume the existence of any state of facts which can reasonably be conceived of as existing at the time of legislation and capable of sustaining the classification made by it("). In the case before us what the legislature has done is to single out two groups of persons consisting of two (1) ; , (2) Willis on constitutional Law, p. 580, 415 ladies and their respective children out of those who claim to be related to the late Nawab Waliuddowla and prevent them from getting any share in the personal property of the latter to which they might be entitled under the general law of the land. They ' claim to be wives and children of the deceased and, as such entitled to have shares in his personal estate, and no competent court of law has as yet negatived their claims in this respect. On what principle then, it may be asked, was the disability imposed upon these persons alone while the claim of the other claimants was, accepted ? Nay, the legislation goes further than this and denies to these specified individuals a right to enforce their claim in a court of law, in accordance with the personal law that governs the community to which they belong. They, in fact, have been discriminated against from the rest of the community, in respect of a valuable right which the law secures to them all and the question is, on what basis this apparently hostile and discriminatory legislation can be supported. It is not suggested that it was for serving a public purpose or securing some advantage to the community as a whole that the legislature chose in this case to interfere with private rights. The only purpose of the legislation, as appears from the preamble, was to end certain private disputes. It is true that the quarrel between the two rival parties regarding succession to the estate of the deceased Nawab was going on since, 1938; and after several vicissitudes, for which the Nizam himself or his Legal Advisers were prima rily responsible, there was a report prepared by the Legal Adviser to the State in a particular way, which, contrary to the opinion given by an 'earlier ' Special Commission, negatived the claims of these two ladies and their children. It is also true that because of the introduction of the Constitution it was no longer possible for the Nizam to issue a Firman embodying this report. That may be the reason for passing this legislation but it would not furnish any rational basis 54 416 for the discrimination that it made. The continuance of a dispute even for a long period of time between two sets of rival claimants tot he 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. As appears from the preamble to the Act, the only ground for depriving the two ladies and their children of the benefits of the ordinary law is the fact that there was an adverse report against them made by the State Legal Adviser. This ground is itself arbitrary and unreasonable. The dispute regarding succession to the estate of the Nawab was a legal dispute pure and simple and without, determination of the points in issue by a properly constituted judicial tribunal a legislation based upon the report of a nonjudicial authority and made applicable to specific individuals, who are deprived thereby of valuable rights which are enjoyed by all other persons occupying the same position as themselves, does, in our opinion, plainly come within the constitutional inhibition of Article 14. The analogy of private Acts of the British Parliament, to which reference was made by the learned Attorney General in the course of his arguments, is not at all helpful. The British Parliament enjoys legislative omnipotence and there are no constitutional limitations upon its authority or power. There were indeed a few statutes passed by the Provincial Legislature in India during British days which regulated succession to the estates of certain princely families. The Bijni Succession Act (Act. II of 1931) passed by the 'Assam Legislature is an enactment of this type and it did shut out the rights of certain persons who claimed the Bijni estate under the law of inheritance. But at that time the Governor General of India had express authority under the provisions of the Government of India Act, 1915, to authorize the Provincial Legislatures to make laws regarding subjects of a private nature. Quite apart from this, no 417 question of infraction of the equal protection rule could arise in pre Constitution days. We are not unmindful of the fact that the presumption is in favour of the constitutionality of an enactment ; but when on the ' face of it a piece of legislation is palpably unreasonable and discriminatory and the selection or classification made by it cannot be justified on any conceivable or rational ground, the court has got to invalidate the enactment on the ground of its violating the equal protection clause. The learned Attorney General contended before us that the High Court was wrong in holding that there was a concluded decree in the present case in favour of respondents 1 to 12 on the basis of the recommendations of the Special Commission, and that this decree was a property within the meaning of law of which these respondents have been deprived by the impugned legislation. The point is not free from doubt, and much could be said on both sides. We think, therefore, that it would not be proper on our part to express,any opinion upon it in the present appeal. We understand that the respondents have filed an execution application in the City Civil Court of Hyderabad which has ordered that execution should proceed and that objections have been taken to this application by the present appellants who have raised inter alia the point that there is no final and effective decree which is capable of execution. As the point is still pending hearing by the Civil Court of Hyderabad, we do not desire to influence their decision in any way by expressing any opinion on this matter. We only desire to state that notwithstanding the observations made by the High Court referred to above, the question shall be treated as an open one. The applicability of article 14 of the Constitution in the present case is, however, not at all dependent upon the fact as to whether or not the respondents have already acquired property in the shape of a decree. Their claim to the estate of the late Nawab which they wanted to assert under the general law of the land is itself a valuable right, and 418 the deprivation of that right by a piece of discriminatory legislation would be sufficient to bring the case within the purview of article 14 of the Constitution. Having regard to the view that we have taken, it as unnecessary to consider whether the impugned Legislation violates the provisions of article 31(1) or article 19(1) (f) of the Constitution. The result is that the appeal is dismissed with costs. Appeal dismissed. Agent for respondents Nos. 1 to 12 M. section H. Sastri.

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.

Under section 172 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, when a bhumidar who has, after the date of vesting, inherited an interest in any holding, dies, the holding or the part thereof shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of section 171). Section 174 provides that when a bhumidar who is a woman dies, her interest in the holding shall devolve in accordance with the order of succession given in the section. The appellant was the grandson (son 's son) of one brother while respondent No. I was the only daughter of another brother. On the death of the(1)respondent 's father, her mother continued in possession of the lands as heir of her husband under the provisions of the Oudh Land Act, 1886. U.P. Act 4 of 1921 which replaced the 1886 Act, conferred the status of a statutory tenant upon a person in possession of lands on the date of the amendment. Section 29 of the U.P. Tenancy Act, 1939, which was a consolidating Act, conferred the status of a hereditary tenant on any person who was a tenant . of the land at the commencement of the Act and so the mother acquired the status of a hereditary tenant. The 1939 Act. was replaced by the U.P. Zamindari Abolition & Land Reforms Act. 1950 under which she became a bhumidar. The mother died in 1952. On the death of the respondent 's mother the appellant got his name mutated in the revenue records as the nearest heir of the mother. The respondent Sled a suit under section 21 of the Abolition Act 1950 claiming to be the sole legal heir to the property. She also field an application before the Consolidation officer under the U.P. Consolidation of Holdings Act for mutation of her name in a place of the appellant 's, which was accepted. On appeal to this Court it was contended that it was the appellant 's father who would succeed to the property in preference to the respondent and it was contended for the respondent that when the respondent 's father died, the tenancy was heritable and so the tenancy acquired by her mother was in her own right as self acquired property. Allowing the appeal, ^ HELD: (1) Section 172A which was introduced in 1954 has no application to this case because the mother died two Years before the amendment came into force and the question of succession to her estate would be governed by section 172 or section 174 of the Abolition Act. [274 A] (2) The statute seeks to make a clear cut distinction between a widow who has inherited an interest from her husband dealt with in section 172 and widow who had acquired an independent interest in the holding covered by section 174. [272 C] Mst. Jaini & Ors. vs Ram Prasad, A.I.R. 1952 All. 852, approved. (3) (a) Section 172 uses the word 'holding or the Dart shall devolve ' to denote that if it was found that a widow had inherited an interest in the holding from her husband then it was the holding that devolved and not interest of the widow, which ceased after her death. The High Court had overlooked the fact that merely because the mother having initially inherited possession or 263 occupation of the holding from her husband acquired other types of interest A by operation of law that could not destroy the origin or the source of her title which was inheritance from her husband. Nor did the conferment of the status of a statutory tenant under the various laws passed by the legislature amount to an acquisition of a self acquired interest by the widow. [272B, D) (b) The words "inherited an interest" occurring in section 172 are not defined in the statute and, therefore, they must be deemed to be of the widest possible amplitude. [272F] (4) Section 174 applies only to such cases where the widow did not inherit an interest from her husband but had an independent interest in the holding which she possessed as her self acquired property Under section 174 it is the interest in any holding which devolves and not the holding. The language used in Ss. 172 and 174 of the Abolition Act unmistakably brings forth the distinction between the two contingencies in which the two sections are to apply. [273E F] (5) The High Court having found as a fact that the mother had inherited the property initially from her husband erred in law in not applying the provision of section 172 read with section 171 of the Abolition Act as a result of which her husband 's brother 's son was entitled to succeed to the estate left by her in preference to her daughter (respondent). [271H] (6) The origin of the title of the mother lay in inheritance of the estate of her husband however limited or precarious it might have been. The succession to the estate of the mother would have to be governed by the provisions of section 172 of the Abolition Act. In the order of succession given in section 171 brother 's son was a preferential heir. Before the amendment of the Abolition Act in 1954, married daughter was completely excluded from inheritance. [274G H] In the instant case the respondent having married on the death of her mother in 1952 the holding held by the mother would devolve on the appellants father and thereafter, on the appellant as heir to his father. (7) The expressions 'heir of a tenant ' and 'shall be entitled to retain occupation ' occurring in section 48 of the Rent Act 1886 before its amendment in 1921 clearly postulate that the right to retain the occupation of the lands in dispute was given to the heirs of the deceased tenant, which clearly indicated that the person who retained occupation would inherit or succeed to a limited right which the deceased tenant possessed under the Act. [273A] In the instant case on the death of her husband occupation of the. tenancy by the mother was by no way other than as heir of her husband. It cannot be said that the occupation of the lands by the mother on her husband 's death was purely in her individual or independent capacity or that her possession of the lands amounted to her self acquired property. [273D E] (8) Whether a decision is given in appeal from an original suit or in a writ petition the ratio is binding on the subsequent Division Bench and merely because the previous Division Bench judgment was given in a suit the subsequent Division Bench cannot refuse to follow the same on the ground that it was hearing the proceeding in a Writ petition. The rule of judicial precedent is a salutary one and is aimed at achieving finality of judgments. In case the Division Bench under appeal wanted to differ from the previous decision of the Division Bench of the same court it ought to have referred the matter to a large bench. [271F G]

Held, that Article 465 A and Note I thereto of the Civil Service Regulations relating to the retiring pensions of officers was applicable to the appellant who was employed in 1923 as a member of the Indian Service of Engineers because Rule 4 of the new Rules published by the Government of India on 15th November, 1919, providing for compulsory retirement of any officer after the completion of 26 years ' service was validated and confirmed by section 96 B of the Government of India Act , 1919, which came into force on 23rd December, 1919, and the language of Note 1 to Article 466 A published in 1920 clearly indicates that the Government 's right to compulsorily retire an officer was not derived from Note 1 as Note 1 assumed its existence aliunde and the Government 's right was derived from new Rule 4 published on 15th November, 1919. Held also, that a compulsory retirement under the Civil Services (Classification, Control and Appeal) Rules, does not amount to dismissal or removal within the meaning of Article 311 of the Constitution and therefore does not fall within the provisions of the said Article. The word "removal" used synonymously with the term "dis missal" generally implies that the Officer is regarded as in some manner blameworthy or deficient. The action of removal is founded on some ground personal to the officer and there is a levelling of some imputation or charge against him. But there is no such element of charge or imputation in the case of compulsory retirement. In other words a compulsory retirement does not involve any stigma or implication of misbehaviour or incapacity. Dismissal or removal is a punishment and involves loss of benefit already earned. The Officer, dismissed or removed, does not got pension which he has earned. On compulsory retirement the Officer will be entitled to the pension that he has actually earned and there is no diminution of the accrued benefit. Rangachari vs Secretary of State (L.R. 64 I.A. 40; A.I.R. ; Vankata Rao vs Secretary of State L.R. 64 I.A. 55; A.I.R, 1937 P.O. 37); I.M, Lal 's case (L.R. 76 I.A. 225 A.I.R. 1948 27 P.C. 121); Satischandra Anand vs The Union of India at p. 659) referred to.

The appellant was a protected lessee or tenant of the agricultural land in dispute, under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The respond ent became the landlady of the land on June 29, 1959 when her father effected a partition of his ancestral lands between himself, on the one hand, and his wife and his two minor daughters, including the respondent, on the other. This was the third partition effected by the respondent 's father, who had earlier also twice partitioned the same lands. Sometime in 1962, the respondent initiated proceedings against the appellant for recovery of possession of the suit land on the ground of default. The Tehsildar dismissed the application holding that the respondent was not a landlady since the partition in question was illegal. The Deputy Collector in appeal confirmed this decision, and the Maha rashtra Revenue Tribunal rejected the respondent 's revision. In the Writ Petition filed before the High Court under Article 227 of the Constitution against the above decision of the three authorities below, the High Court remanded the matter to the Tehsildar for investigation into the validity of the partition. On remand, the Tehsildar held that the partition effected on June 29, 1959 was bogus. Thereafter, in a different proceeding the Maharashtra Revenue Tribunal had held that the said partition was bind ing. Therefore, in the appeal against the decision of the Tehsildar, the Deputy Collector following the said decision of the Revenue Tribunal, held the partition valid and al lowed the respondent 's application for eviction. The Revenue Tribunal, in revision, confirmed this order of the Deputy Collector. 67 The appellant preferred a writ petition before the High Court. It was, inter alia, contended before the High Court that: (1) the partition was contrary to the provisions of Hindu Law; and (2)even assuming that the partition deed of June 29, 1959 was a valid document, the same had to be ignored since it could not confer the title of ownership on the respondent transferee in view of the provisions of section 38(7) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The High Court however dis missed the petition holding that what was produced before the courts below was a family settlement. Allowing the appeal, this Court, HELD: (1) A partition of the property can only be among the parties who have a pre existing right to the property. Under the Hindu Law, a female, major or minor has no share in the ancestral property. A female is given a share either in the self acquired property of the husband or the father, or in the share of the husband or the father in the coparce nary property after the property is partitioned. There cannot, therefore, be a partition and hence a family settle ment with regard to the ancestral property so long as it is joint, in favour of either the wife or the daughter. [70C D] (2) The position that obtain under section 38(7) after the Amending Act of 1963, is that any transfer of land effected after 1st August 1953 whether by way of partition or otherwise, has no effect of conferring on the transferee a right to terminate the tenancy of the tenant who was a protected lessee and whose right as such protected lessee had come into existence before such transfer or partition. This amendment is admittedly retrospective in operation. [71G H; 72A] (3) The appellant was tenant since prior to 1st August 1953 and had also continued to be such tenant till April 1, 1961. Hence he became a statutory owner under section 46 of the Act on and from April 1, 1961. Any proceedings for evicting him on the ground that he was a tenant and, there fore, had fallen in arrears of rent could not have, there fore, been adopted in 1962. [72C D]

The appellants and respondents 2 to 5 were owners of Jaggamapeta estate in the East Godavari District of Andhra Pradesh. The Vantari Muttah ', a piece of land about 400 acres in area, was granted to their predecessor in interest in return for services as vantarlu ' or 'foot set,#ants ' long before the permanent settlement. After the passing of the Madras Estates, (Abolition and Conversion into Ryotwari) Act XXVI of 1948 dispute arose whether the land formed part of the Jaggampeta estate for if it did not, the Act would not apply to it. After various stages of litigation a Division Bench of the High Court decided against the apellants. They came to this Court with special leave. it was contended on behalf of the appellants that the said Muttah was granted to their predecessor in interesi before the permanent settlement by the then Zamindar for public services subject to a payment of favourable rent, that, subsequently, the services were discontinued,but the grant was continued subject to the payment of favourable rent, that at the time of the permanent settlement the said Mutta was excluded from the assets of the Zamindari and that therefore the said Muttah. was outside the scope of the notification issued by the Government under Madras Act XXVI of 1948. On behalf of the respondent State it was urged that the grant was subject to the payment of the full asses men,, that the said assessment was paid partly in cash and partly by personal services to the, Zamindar, that at the time of the Permanent Settlement the said Muttah was included in the assets of the Zamindari and that as it was a part of the Zamindari the Government at the time of the Inam Settlement did not take any steps to enfranchise the same. HELD:(i) Under section 4 of the Regulation XXV of 1802 the Government was empowered to exclude income from lakhiraj lands i.e. lands exempt from payment of public revenue and of all lands paying only favouable quit rents, from the assets of the Zamindari at the time of the Permanent Settlement. If the lands fall squarely within the mid two categories, there is a presumption that they we re excluded from the assets of the Zamindari. But if the grant of land was subject to performance of personal services to the Zamindar or subject to the payment of favourable rents and also performance of personal services to the Zamindar, there is no such presumption. Indeed the presumption is that in such a case the income from the land was not excluded from the assets of the Zamindari. The reason for the rule is that in one case the personal service are equated with the, full assessment and in the other 182 the favourable rent together with the personal services is equated with full assessment. If the Zamindar in one shape or another was getting the full assessment on the lands there was no reason why the Government would have foregone its revenue by excluding such lands from the assets of the Zamindari. [185 F] Mahaboob Sarafarajewant Sri Raja Parthasarathy Appa Rao Bahadur Zamindari Garu vs The Secretary of State, Mad. 620 and Secretary of State, vs Rejah Vasiredy, A.I.R. 1929 Mad. 676, referred to. (ii) The grant in the present case was a pre settlement grant. The land was granted to the Vantarlu subject to the payment of favourable rent and also subject to the performance of personal services to the Zamindar. The Government either before the permanent settlement or subsequent thereto never claimed a right to resume the same. Indeed it was the Zamindar who was giving remissions to the Vantarlu Whenever their services were not required. There is a presumption that such I land was not excluded from the assets of the Zamindari and the evidence adduced in the case not only did not rebut that presumption but also to some extent supported it. The Division Bench of the High Court was therefore right in holding that the Vantari Muttah was part of the estate of the appellants and respondents 2 to 5 and was therefore, covered by the notification issued by the Government under the Estates Abolition Act, 1948. [189 D]

The first respondent, in 1938, obtained a decree against the appellants branch of a joint family, and in 1941, commenced proceedings for the execution of the decree in Allahabad. Meanwhile, in 1939, a final decree had been passed in a suit for partitioning the family properties among the members of the joint family, and the matter was taken up in appeal to the High Court of Allahabad. Certain orders were passed by the High Court which were construed by the executing court in the years 1941 and 1942 as stay orders of the execution proceedings commenced by the respondent. The High Court passed a final decree in the partition suit in December 1949, but did not immediately discharge the Receivers who were appointed during the pendency of the suit. The respondent revived the execution proceedings in May 1,950 and a mill belonging to the joint family was attached and sold 'but the sale was set 'aside in 1955 as the appellant 's branch applied for relief under the U.P. Encumbered Estates Act, 1934. Thereafter, in ' 1956, the decree in favour of the respondent was transferred to Madras High Court for execution and on 13th August, 1956, the respondent filed an execution application, for attainment of certain properties which fell to the appellant 's share. High Court of Madras in Letters Patent Appeal held that the execution application was in time. On the question whether the execution application dated 13th August, 1956, was in time, or barred by limitation, HELD : (i) The respondent bonafide pursued execution against the mill and since his good faith was not questioned before the Appellate Court it was not open to the appellant to do so in this Court. [370 A, C] (ii) It was not possible to spell out any order of partial stay on the facts and circumstances of the present case. The facts that the Receivers were not finally discharged in 1949 when the final decree by the High Court was passed in the partition suit, and the understanding of the parties and the executing court that execution was stayed by the High Court, indicate that the stay was in unqualified terms. Therefore, the respondent could not have applied earlier 'for execution with respect to other property of the joint family either at Allahabad or at Madras. [369 A C, D G] (iii) Further, when the execution proceedings were revived in May 1950 the executing court held that execution proceedings had been stayed till December 1949 and the appellant did not challenge the order of attachment and sale of mill on the ground that the proceedings were barred by limitation. Therefore, the appellant was barred by the principle of res judicata from questioning the order of May 1950 on the ground of limitation. [371 D E] 365 (iv) Section 15 of the Limitation Act states that in computing the period of limitation prescribed the time of the continuance of the injunction staying execution shall be excluded. The word "prescribed" would apply not only to Limitation Act but also to the limitation prescribed in general statutes like the Civil Procedure Code. Section 48 of the Code, as it then stood, laid down 12 years as the maximum limit of the period of execution but it did not prescribe the period within which each application for execution was to be made. Such an application was to be made within three years from the dates mentioned in third column of Article 182 of the Limitation Act, 1908. Therefore, an application for execution of a decree must first satisfy Article 182 and it would then have to be found out as to whether section 48 of the Civil Procedure Code operated as a further bar. [370 C H; 371 A B] (v) Since the execution proceedings were stayed in the present case, the 'respondent was entitled to claim its benefit of section 15 of the Limitation Act in respect of the period of stay of the execution of his decree, from June 194.1 till end of 1949; and since the execution application of 1950 was finally disposed of in 1955, the present application filed in 1956 was within time. [372 E]

% The appellant raised the question as regards the determination of age of the Chief Justice of Andhra Pradesh High Court, in these Special Leave Petitions filed against the Judgment and order of the Andhra Pradesh High Court dismissing in limine the Writ Appeals against the order of dismissal of the Writ Petitions by a Single Judge of the High Court. ln the course of the proceedings, this Court, on January 8, 1988, made certain queries to which the Additional Solicitor General furnished information broadly on the following lines: That a view in the matter will be taken by the President of India after the advice of Chief Justice of India is made available, and that all relevant files have been submitted to the Chief Justice of India along with the opinion as to the effect of the judgment pronounced by the Andhra Pradesh High Court. In view of the information made available, this Court dismissed the Special Leave Petitions and, ^ HELD: 1. The matter as to the age of the retired Chief Justice or a sitting Judge of a High Court is a judicial function of the President of India, which has to be discharged in accordance with the special provisions made under Article 2l7(3) of the Constitution. [730C D] 2. Such a question as to the age of the Chief Justice or a Judge, under Article 217(3) of the Constitution, is beyond the reach of the Council of Ministers under Article 74 of the Constitution. [730D E] Union of India vs Jyoti Prakosh Mitter, [ 197 l ] 3 SCR 483, followed. 729 3. Since the President of India, in compliance with Article 2l7(3), has referred the question as to the age of Shri K. Bhaskaran, Chief Justice of Andhra Pradesh High Court, to the Chief Justice of India for his opinion, no Writ of Mandamus can lie. [730B] 4. The President of India as a constitutional functionary has discharged his duties under Article 217(3) and the decision must rest on the advice of the Chief Justice of India and not the Council of Ministers. [730C]

A decree in favour of the respondent husband was grant ed by the Trial Court declaring his marriage with the appella nt to be a nullity under section 12(1)(d) of the Hindu Marria ge Act, 1956 on the ground that the wife at the time of ma r riage was pregnant by some one other than the respondent. In the appeal filed by the appellant, the respondent raised a preliminary objection contending that the appeal was n ot tenable and had been rendered infructuous because he h ad re married before the filing of the appeal. The Appella te Court allowed the preliminary objection and dismissed t he appeal, and the High Court dismissed the second appeal. Before this Court it was contended on behalf of t he appellant that (i) the word 'divorce ' has been used in section 15 in a broader sense and, in view of the langua ge used in that section, it is not possible to distingui sh between a decree of nullity under section 11 or 12 a nd decree of divorce under section 13; (ii) the interpretati on put by the lower courts, on the basis of judgments of so me of the High Courts, that section 15 will not apply to a decree under section 12 but would only apply when there is a decree under section 13, does not appear to be correct as the scope and language of section 15 coupled with the la n guage of section 28, had not been considered by any one of these courts; and (iii) even if it is held that section 15 applies to a decree under section 12, the respondent h ad re married after the period of limitation had expired, as the provisions of the will not apply in vi ew of the section 29(3) of that Act, and therefore the period 138 for obtaining copies of the judgment excluded under secti on 12 clause will not be available to the appellant. Allowing the appeal, it was, HELD: (1) It is no doubt true that section 12 and se c tion 13 have different phraseology. In section 12 it is sa id that the "marriage may be annulled by a decree of nullit y" whereas in section 13, the phraseology used is "dissolved by a decree of divorce". Though in substance the meaning of t he two may be different under the circumstances and on t he facts of each case, but the legal meaning or the effect, is that by intervention of the court the relationship betwe en two spouses has been severed either in accordance with t he provisions of section 12 or in accordance with the prov i sions of section 13. Probably it is because of this reas on that the phrase 'decree of nullity ' and 'decree of divorc e ' have not been defined. [143A B] (2) Under the provisions of section 28 all decrees ma de by the Court in any proceeding under this Act are appea l able. In order to provide an appeal against all decre es section 28 has used a very wide terminology which includ es decrees under sections 11, 12 and 13, and so far as this is concerned it could hardly be contested as the language of section 28 itself is so clear. [143G H] (3) If it is accepted that section 15 will not apply to cases when a decree is passed under section 11 or 12, it will mean that as soon as a decree is passed the par ty aggrieved may appeal but the other party by remarriage wou ld make the appeal infructuous and therefore the right of appeal of one of the parties to the decree under section 28 will be subject to the act of the other party in cases whe re decree is passed under section 11 or 12. But if it were s o, the Legislature would have provided a separate provision f or appeal when there is a decree under section 13 and a diffe r ent provision for appeal when there is a decree under se c tion 11 or 12 as the right of appeal against a decree und er section 11 or 12 could only be a limited right subject to the desire of the other party. [144H; 145A B] (4) The Legislature in its wisdom had enacted section 28 conferring a right of appeal which is unqualified, unr e strictive and not depending on the mercy or desire of a party against all decrees in any proceeding under the Ac t. Hence, the only interpretation which could be put on t he language of section 15 should be that which will be consis t ent with section 28. Therefore, the phrase 'marriage h as been dissolved 139 by a decree of divorce ' in section 15 will only mean whe re the relationship of marriage has been brought to an end by the process of court by a decree, which will include a decree under section 11, 12 or 13. The view taken by t he courts below is accordingly not sustainable. [145C D; 147F ] Chandra Mohini Srivastava vs Avinash Prasad Srivastava Anr.; , ; Tejinder Kaur vs Gurmit Singh, A IR ; Vathsala vs N. Manoharan, AIR (1969) Madr as 405, referred to. Mohanmurari vs Srnt. Kusumkumari, AIR (1965) M.P. 19 4; Jamboo Prasad Jain vs Smt. Malti Prabha, AIR 1979 Allahab ad 260; Pramod Sharma vs Smt. Radha, AIR (1976) Punjab 35 5, overruled. (5) So far as clause (3) of Section 29 of the Limitati on Act is concerned, the impact of it will be that the prov i sions of the will not apply so far as a su it or an original proceeding under the Hindu Marriage Act is concerned, but clause (3) will not govern an appeal. [149E ] (6) To an appeal under section 28 of the Hindu Marria ge Act, provisions contained in section 12 clause (2) of t he will be applicable, and therefore, the ti me required for obtaining copies of the judgment will have to be excluded for computing the period of limitation f or appeal. [149G H] Chander Dev Chadha vs Smt. Rani Bala, AIR (1979) Del hi 22; Smt. Sipra Dey vs Ajit Kumar Dey, AIR (1988) Cal 28 a nd Kantibai vs Kamal Singh Thakur, AIR (1978) M.P. 245, r e ferred to.

Appeal No. 446 of 1958. Appeal from the judgment and order dated April 18, 1956, of the High Court of Judicature at Madras in Tax Revision Case No. 93 of 1955. M. C. Setalvad, Attorney General of India, section Swaminathan and K. L. Mehta, for the appellants. V. K. T. Chari, Advocate General of Madras, M. M. Ismail and T. M. Sen, for the respondent. N. A. Palkhivala, J. B. Dadachanji, section N. Andley, Rameshwar Nath and P. L. Vohra, for the Intervener (Tata Loco & Engineering Co. Ltd., Bombay). March 28. The Judgment of the Court was delivered by section K. DAB, J. This is an appeal on a certificate granted by the High Court of Madras. The firm of Messrs. Ashok Leyland Ltd., Ennore, is the appellant before us. For brevity and convenience, we shall hereinafter refer to the firm as the assessee. The State of Madras through the Commercial Tax Officer, Saidapet, is the respondent before us. The assessee is a firm with its factory at Ennore in the State of Madras, where it manufactures, assembles and sells motor vehicles and spare parts and accessories thereof, through an elaborate organisation spread over several States. It is, perhaps, necessary to indicate briefly the organisational set up in order to appreciate the point on which the case was heard in the High Court and argued before us. The system of distribution of its motor vehicles, spare parts and 609 accessories at one uniform price to consumers in the various States which the assessee adopted, consisted of the appointment of a distributor (called a dealer) with a definite territorial jurisdiction, both inside and outside the State of Madras. To every such dealer it granted the sole right of selling the products of the firm within the territory allotted to him. If the territory of the dealer was outside the State of Madras, the agreement entered into by the dealer provided for the delivery of the products of the firm by consignment, by rail or steamer or road transport. The agreement specifically stipulated that the dealer must not canvass or sell the products outside the territory allotted to him, and in the event of infringement or breach of the undertaking by the dealer, the assessee was entitled to terminate the agreement forthwith. On such termination, the assessee reserved the right to call upon the dealer to return all or any of the products remaining unsold at the date of such termination. The case set up by the assessee was that a substantial number of motor vehicles and accessories thereof were consigned to the dealers in other States either by rail or steamer; but due to want of such transport facilities, a number of vehicles were also transported by road. In the year relevant to the assessment year 1952 53, the total turnover of the asaessee in respect of all its sales came to Rs. 1,43,67,007 odd. The Deputy Commercial Tax Officer, Madras, computed the taxable turnover of the assessee for that year by excluding the sum of Rs. 1,12,21,707 odd which represented the value of vehicles, spare parts, etc., sold outside the State of Madras and consigned by rail or steamer or transported by road. The balance of Rs. 31,45,299 odd was determined to be the net assessable turnover of the company. The tax levied thereon was a sum of Rs. 1,45,655 13 3 and this sum was duly paid by the assessee. Sometime thereafter, the Commercial Tax Officer, Madras, purporting to act under the powers of revision given to him by section 12 of the Madras General Sales 77 610 Tax Act, 1939 (Madras Act IX of 1939), hereinafter called the Act, called upon the assessee to produce its books of account for the purpose of satisfying himself as to the legality or propriety of the assessment made. After scrutinising the accounts and other records produced by the assessee, the Commercial Tax Officer issued a notice proposing to revise the assessment by including a sum of Rs. 42,98,068 odd on the ground that the delivery of motor vehicles, etc., in respect of sales covered by the aforesaid sum was made within the State of Madras and was therefore liable to tax under the Act. The assessee submitted its objection to the revision of the assessment and contended that on the sum of. Rs. 42 lacs odd the assessee was not liable to pay sales tax as the transactions were in the course of inter State trade and commerce. This objection was, however, overruled by the Commercial Tax Officer except to a very small extent. From that decision of the Commercial Tax Officer, an appeal was taken to the Sales Tax Appellate Tribunal, Madras, and the assessee contended in that appeal that the revision of the assessment by the Commercial Tax Officer was without, jurisdiction and that the inclusion of Rs. 42 lacs odd in the taxable turnover was contrary to the provisions of article 286 of the Constitution. The Tribunal rejected the plea of absence of jurisdiction, but held on merits that the sum of Rs. 12,48,403 odd representing the value of vehicles driven away on their own motive power through the assessee 's own drivers to the places of business of the non resident dealers was not liable to sales, tax. The assessee then preferred a revision to the High Court of Madras under section 12B(1) of the Act and repeated the contention that the sales in question were in the course of inter State trade and commerce and not liable to sales tax by reason of the provisions of article 286(2) of the Constitution. In the High Court the liability to tax was challenged by the assessee in respect of the following four items only: (1) A sum of Rs. 1,43,072 odd which represented the value of vehicles delivered ex factory to the 611 dealer 's drivers. The vehicles were driven away by those drivers after temporary registration of the vehicles in the name of the dealer, outside the State of Madras. (2) A sum of Rs. 28,01,357 odd which represented the value of vehicles delivered to the drivers of the dealers, which were driven away under the trade number of the dealers, outside the State of Madras. (3) A sum of Rs. 7,866 odd which represented the value of spare parts or other accessories delivered along with the cars. (4) A sum of Rs. 15,000 which represented the value of spare parts consigned to the dealers. These were delivered to the dealers outside the State of Madras and the consignments were sent by rail or steamer. The High Court repelled the contention of the assessee in respect of the first three item,,; aforesaid, holding that they fell outside the purview of the ban imposed by article 286(2) of the Constitution. It modified the order of the Tribunal with respect to the fourth item, as in its view that item came within the scope of article 286(2). The assessee then moved the High Court and obtained the necessary certificate under article 133 of the Constitution. When the learned Attorney General appearing for the assessee opened the appeal, he submitted in the forefront of his argument that the High Court was in error in holding that the transactions coming under the three items (1), (2) and (3) above were outside the ban imposed by article 286(2) of the ' Constitution, and contended that the transactions were within the purview of the ban. We then drew his attention to the Sales Tax Laws Validation Act, 1956 (hereinafter called the Validation Act), and asked him to consider the question whether the transactions in question came within the protection of the Validation Act, an aspect of the case which does not appear to have been considered in the High Court. The argument before us then centered round the question whether the assessment in respect of the three items came within the protection of the Validation Act, and it was conceded by the 612 learned Attorney General that if it did, no other question would survive and it would be unnecessary to determine in this appeal the true scope and effect of article 286(2) of the Constitution and whether the transactions in question came within the ban imposed thereby. On behalf of an intervener (Tata Locomotive & Engineering Co. Ltd,, Bombay) we have been pressed to decide, on merits, whether the transactions under consideration here come within the ban of article 286(2) of the Constitution, on the ground that such decision will be of assistance in a pending case to which the intervener is party. We do not think that we can do so for the benefit of the intervener. The intervener has no right to ask us to decide a question which does not fall for decision if the Validation Act applies; for it is conceded that if the Validation Act applies, that will be decisive of the whole appeal. We must, therefore, reject the plea of the intervener. We proceed now to consider the main point argued in this appeal, namely, whether the Validation Act applies to the transactions in question. It is convenient to read here section 2, which is the relevant section, of the Validation Act: "Section 2. Notwithstanding any judgment, decree or order of any court, no law of a State imposing or authorising the imposition of, a tax on the sale or purchase, of any goods where such sale or purchase took place in the course of interstate trade or commerce during the period between the 1st day of April, 1951, and the 6th day of September, 1955, shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that such sale or purchase took place in the course of inter State trade or commerce; and all such taxes levied or collected or purporting to have been levied or collected during the aforesaid period, shall be deemed always to have been validly levied or collected in accordance with law". It will be noticed at once that the transactions under consideration in the present appeal came within the period mentioned in the Validation Act. being transactions of a period between April 1, 1951, and 613 March 31, 1952. Indeed, this is not disputed before us. It is also clear that the wording of a. 2 is general and wide enough to take in "the sale or purchase of any goods where such sale or purchase took place in the course of inter State trade or commerce during the period between the 1st day of April, 1951, and the 6th day of September, 1955. " The section states in effect that notwithstanding any judgment, decree or order of any court, no law of a State imposing a tax on the sale or purchase of goods referred to therein shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that such sale or purchase took place in the course of inter State trade or commerce. The learned Attorney General has advanced two arguments in support of his contention that the Validation Act does not apply to the transactions under consideration here. His first argument is that the Validation Act applies only when the law of the State imposes, in express terms, a tax on the sale or purchase of any goods in the course of inter State trade or commerce. He emphasises the expression "where such sale or purchase took place in the course of inter State trade or commerce" occurring in the section and from that expression he has drawn the inference that the law must in express terms say that it is taxing transactions in the course of interState trade and commerce. His second argument is that by reason of section 22 of the Act, inserted by the amending Act of 1957, being Madras Act I of 1957, the Act imposes no tax on transactions under consideration in this appeal; it merely imposes a tax on transactions which are generally known as Explanation sales referable to the Explanation to article 286(l)(a), such as were considered in the decision of this Court in M. P. V. Sundararamier & Co. vs The State Of Andhra Pradesh & Another (1). We shall consider these two arguments one after the other. It appears to us the first argument does not correctly reflect the true scope and effect of section 2 of the Validtion Act. It is necessary, perhaps, to advert to the circumstances which led, to the enactment of (1) 1958 J.s. S.C.R. 1422 614 the Validation Act. The true meaning and scope of the Explanation to article 286(1) of the Constitution came up for consideration before this Court in The State of Bombay and Another vs The United Motors (India) Ltd and Others (1). It was therein held by the majority that though the sales falling within the Explanation would, in fact, be in the course of interState trade. they became intrastate sales by the fiction introduced by the Explanation and were liable to be taxed by the State within which the goods were delivered for consumption. Then, came the decision in The Bengal Immunity Company Limited vs The State of Bihar and Others (2) where this Court held, again by a majority, that the sales falling within the Explanation being inter State in character, could not be taxed by reason of article 286(2) unless Parliament lifted the ban, that the Explanation to article 286(l)(a) controlled only that clause and did not limit the operation of article 286(2), and that the law in this respect had not been correctly laid down in the United Motors ' case (2). The decision in The Bengal Immunity 's case (2) was rendered on September 6, 1955. The Sales Tax Validation Ordinance No. III of 1956 was promulgated on January 30, 1956, and that was later replaced by the Validation Act. The constitutionality of the Validation Act was challenged before this Court and in M. P. V. Sundararami 's case (3) this Court upheld its validity, though the sales referred to in the arguments in that case were Explanation sales. The Validation Act is legislation by Parliament, and it lifts the ban imposed by article 286(2). Clause (2) of article 286 as it stood before the Constitution (Sixth Amendment) Act, 1956, in these terms: "(2). Except in so far as Parliament may by law otherwise provide, no law of a State shall impose,or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State trade or commerce." In M. P. V. Sundraramier 's case(3) this court observed: (1) ; (2) [1955] 2 S.C.R.603 (3) 615 "Section 2 of the impugned Act which is the only substantive enactment therein makes no mention of any validation. It only provides that no law of a State imposing tax on sales shall be deemed to be invalid merely because such sales are in the course of inter State trade or commerce. The effect of this provision is merely to liberate the State laws from the fetter placed on them by article 286(2) and to enable such laws to operate on their own terms. The true scope of the impugned Act is, to adopt the language of this Court in the decisions in the United Motors case (1) and The Bengal Immunity Company 's case (2), that it lifts the ban imposed on the States against taxing inter State sales and not that it vali dates or ratifies any such law. " It should be obvious that in 1939, long before the coming into force of the Constitution, the Act could not have said in express terms that it was taxing sales in the course of inter State trade. What we have to see is that the fetter under article 286(2) having been removed, does the Act operating on its own terms affect the transactions in question even though they be in the course of inter State trade? If it does, the assessment is no longer liable to challenge on the ground of the ban imposed by article 286(2). This brings us to the second argument of the learned Attorney General. One has merely to see the definitions of 'sale ' and 'turnover ' and section 3, the charging section, to come to the conclusion that the Act operating on its own terms makes the transactions under consideration in this appeal liable to sales tax. Explanation (2) to the definition of 'sale ' says: "The sale or purchase of any goods shall be deemed, for the purposes of this Act, to have taken place in this State, wherever the contract of sale or purchase might have been made (a) if the goods were actually in this State at the time when the contract of sale or purchase in respect thereof was made, or (b) in the case the contract was for the sale on purchase of future goods by description, then, if the (1) ; (2) 616 goods are actually produced in this State at any time after the contract of sale or purchase in respect thereof was made. " There can be no doubt that the Explanation brings the transactions in question within the definition of 'sale ' under the Act. The point now is does section 22 of the Act make any difference ',? We are clearly of the opinion that it does not. A little history of that section is necessary here. Section 22 of the Act, as it stood before the amending Act of 1957, was inserted by the Adaptation of Laws (Fourth Amendment) Order, 1952, made by the President in exercise of the powers conferred on him by article 372(2) of the Constitution. The section was then almost a verbatim reproduction of article 286(l) and (2) of the Constitution. The effect of the section as it stood then, was considered in M. P. V. Sundararamier 's case (1) and it was held that it had a positive content and the Explanation in the context of section 22 (as it then stood) authorised the State of Madras to impose a tax on sales falling within its purview. Then came the Validation Act in 1956, which lifted the ban imposed by article 286(2). In 1957 new section 22 was inserted in the Act with restrospective effect from January 26, 1950, and old section 22 was repealed. The new section reads: "Section 22. Sale or purchase deemed to have taken place inside the State in certain cases (1) Any sale or purchase which took place on or before the 6th day of September, 1955, shall be deemed to have taken place inside the State if the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in the State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State, and. be subject to tax under this Act accordingly. (2) The provisions of this section shall not affect the liability to tax of any sale or purchase under any other provision of this Act. " The argument of the learned Attorney General is that (1)[1958] S.C.R. 1422. 617 the now section which operates retrospectively from January 26, 1950, talks of sales in which the goods are delivered for consumption in the State of Madras; in other words, of Explanation sales only; therefore, the Act does not operate on sales of an interState character other than Explanation sales. We are unable to agree. First of all, sub section (2) of new section 22 makes it quite clear that the section does not affect the liability to tax of any sale or purchase under any other provision of the Act. Secondly, after Parliament had lifted the ban imposed by article 286(2), it was unnecessary to repeat the provisions of that Article in the Act and old section 22 in so far as it repeated article 286(2) became otiose. Therefore, new section 22 has not the effect of subtracting something from the power to tax conferred on the State by the charging section, section 3, read with the definition of 'sale ' in section 2(h). To repeat what we have said earlier: after the removal of the fetter of article 286 (2), the Act operating on its own terms makes the transactions in question liable to tax, and new section 22 makes no difference to that position. For these reasons, we are unable to accept as correct the arguments advanced on behalf of the assessee. In our view, the Validation Act applies and the assessment on the transactions in question cannot now be challenged on the ground alleged by the assessee. The appeal fails and is dismissed with costs. Appeal dismissed.

The appellant firm had its factory in the State of Madras, where it manufactured, assembled and sold motor vehicles, spare parts and accessories. For the assessment year 1952 53, the sales tax authority computed the appellant 's taxable turnover of sales for that year excluding a sum which represented the value of vehicles etc., sold outside the State of Madras, but on revision, the taxable turnover was increased by including a sum which related to certain transactions with dealers outside the State of Madras on the ground that the sales covered thereby were made within the State of Madras and were therefore liable to tax under the Madras General Sales Tax Act, 1939. The appellant claimed that these sales were in the course of inter State trade and commerce and not liable to sales tax by reason of the provi sions of article 286(2) Of the Constitution of India. The matter was taken up to the Supreme Court and in the meantime, the Sales Tax Laws Validation Act, 1956, had been passed by Parliament. The question was whether the transactions in question, even if they were considered as having taken place in the course of inter State trade, came within the protection of the Validation Act of 1956 and, therefore, the assessment in the present case was valid. The appellant contended (1) that the Validation Act was applicable only when the law of the State imposed, in express terms, a tax on the sale or purchase of any goods in the course of inter State trade or commerce, and (2) that the new section 22 inserted in the Madras General Sales Tax Act, 1939, by Madras Act 1 of 1957, which operated retrospectively from January 26, 1950, talked of sales in which the goods were delivered for consumption in the State of Madras, and, therefore, the Validation Act did not operate on sales of an inter State character other than such sales. Held: (1) that the effect of the Sales Tax Laws Validation Act, 1956, was to liberate the State laws from the fetter placed on them by article 286(2) of the Constitution of India and enable such laws to operate on their own terms. Consequently, the transactions in question were liable to tax under the provisions 608 of the Madras General Sales Tax Act, 1939, and it was not necessary to provide in that Act in express terms that it was taxing sales in the course of the inter State trade. M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh and Another, , relied on. (2) that the transactions in question came within the definition of sale in section 2(h) of the Madras General Sales Tax Act, 1939, and the power to tax conferred on the State by the charging section, section 3, was not affected by section 22 in view of sub section (2) therein.

On July 19, 1945 the assessee took an lease certain premises in Calcutta on a monthly rental. He made some alterations in the premises so as to convert it into a cinema house but found himself short of money. As permitted by the terms of his lease he leased the premises on February 23, 1946 to certain parties. According to the terms of the indenture the lessees agreed to pay him Rs. 55,2GO towards construction of the cinema house which would on completion be let to them at a monthly rental of Rs. 2,100 payable with effect from June 1, 1946. The Income tax authorities treated the sum of Rs. 55,200 thus received as taxable ;and the High Court on reference held the same. in appeal by the assessee this Court had to consider whether the receipt was taxable. HELD : (i) The departmental authorities as well as the High Court were in error in treating the amount of Rs. 55,200 as advance payment of rent. The lease by which the cinema house was demised did not contain any condition or stipulation from which it could be inferred that the aforesaid amount had been paid by way of advance rent. The transaction embodied in the indenture of lease was clearly business like. The lessees wanted the building for running it as a cinema house and the lessor agreed to give it to them but apparently represented that he did not have enough money to complete it in accordance with the suggestions and requirement of the lessees. The lessees agreed to pay him the aforesaid amount by way of a lump sum without making any provision for its adjustment towards the rent or repayment by the lessor. On the terms of the lease and in the absence of any other material or evidence it could not be held that the sum of Rs. 55,200 was paid by way of advance rental.[465 G 466 B] (ii) The question whether premium is a capital or a revenue receipt cannot be decided as a pure question of law. Its decision necessarily depends upon the facts and circumstances of each case. It would not however be wrong to say that prima facie premium or salami is not income and it would be for the income tax authorities to show that facts exist which would make it a revenue receipt. [467 B] According to the terms of the lease, in the present case ' the payment of rent was to commence not from the date of the lease which was February 23, 1946 but with effect from June 1, 1946. The lessees entered into possession after the cinema house had been completed which was subsequent to the date of the lease. These facts coupled with the payment of a lump sum which was of a non recurring nature showed that the amount in question had all the characteristics of a capital payment and was not revenue. [467 C D] Henriksen vs Grafton Hotel Ltd., , Commissioner of Income tax, Bihar & Orissa vs Visweshwar, [1939] 7 I.T.R. 536 and 463 Member for the Board of Agricultural Income tax vs Sindhurani Chaudhurani & Ors., , applied.

The appellant company was manufacturing and selling black and galvanised steel tubes and pipes. In the assess ment proceedings for the years 1982 83 and 1983 84 under the Kerala General Sales Tax Act, 1963 the appellant contended that since the galvanised pipes manufactured by it were "declared goods" they were not liable to additional sales tax as well as surcharge. Rejecting the contention, the assessing authority taxed the turnover of galvanized iron pipes at four per cent and also assessed an additional tax and surcharge treating the galvanized iron pipes as 'goods ' falling under Entry 46 of the First Schedule to the Kerala Sales Tax Act. Demands were raised from the Appellant compa ny accordingly. The Company filed a writ petition in the High Court. The High Court, held that as a result of the process of galvani sation the galvanised iron pipes had acquired different commercial identity and therefore, could not be identified with steel tubes mentioned in Section 14(iv)(xi) of the . In these appeals on the question: whether galvanised iron pipes and tubes are a commercially different commodity from steel tubes mentioned in Section 14(iv)(xi) of the . Allowing the appeals and setting aside the judgment and order of the High Court, this Court, 211 HELD: 1. Galvanised pipes are steel tubes within the meaning of Section 14(iv)(xi) of the . The view taken by the High Court to the contrary was errone ous. [213E] 2. Galvanisation is done on steel tubes or pipes as a protective measure only, i.e., to make it weather proof. Merely because the steel tube has been galvanised does not mean that it ceases to be a steel tube. It still remains a steel tube and neither its structure nor function is al tered. Galvanisation does not bring a new commodity into existence and as a commercial item it is not different from a steel tube. [212H, 213A C] Commissioner of Sales Tax vs Mitra Industries, [1988] 69 S.T.C. (Note No. 55 at p. 16) applied. Associated Mechanical Industries vs Commissioner of Commercial Taxes, Bangalore, [1986] 61 S.T.C. 225; Commis sioner of Sales Tax vs Om Engineering Works, [1986] U.P.T.C. 55; State of Gujarat vs Shah Veljibhai Motichand Lunawada, [1969] 23 S.T.C. 288 and Sales Tax Commissioner and Ors. vs Jammu Iron and Steel Syndicate, [1980] 45 S.T.C. 99, ap proved. Apollo Tubes Limited vs State of Kerala, [1986] 61 S.T.C. 275. overruled. Deputy Commissioner of Commercial Taxes, Tiruchirapalli vs P.C. Mohammed Ibrahim Marakayar Sons, [1980] 46 S.T.C. 22. Not approved. Deputy Commissioner of Sales Tax (Law) Board of Revenue vs G.S. Pai & Co., ; , Distinguished.

The respondent was a registered dealer under the Assam Sales Tax Act, 1947. The Sales tax Officer assessed the respondent to Sales tax in respect of the containers of hydrogenated oil and other exempted goods. Appeals to the Assistant Commissioner of Taxes failed as also second ap peals to the Assam Board of Revenue. In reference the High Court held that the value of the containers was not assessable to sales tax "unless separate price has been charged for the containers. " This finding was based on the view that there was no evidence to show that actually separate price was paid for the containers and hence there was no sale and there could not be any tax on the containers. In appeal to this Court by the Commissioner of Taxes it was urged that the parties may have intended in the circumstances to sell the hydrogenated oil apart from the containers the mere fact that the price of the containers was not separately fixed would make no difference HELD : The question as to whether there is an agreement to sell packing material is a pure question of fact depending upon the circumstances found in each case. The High Court was in error when it answered the question of law referred to it without addressing itself to the question whether there was an express or implied agreement for the sale of the containers of hydrogenated oil in the present case. [963 HI Hyderabad Deccan Cirgrette Factory vs State of Andhra Pradesh, 17 S.T.C. 624, relied on.

The appellant firm M/s. Kishinchand Chellaram was assessed to tax for the assessment year 1947 48, the relevant accounting year being the year ending 6th April, 1947. The concerned Income Tax Officer on an information that a sum of Rs. 1,07,350 purported to have been sent by the assessee by a telegraphic transfer through the Punjab National Bank Ltd., Madras, to its Bombay Branch favouring one Nathirmal on 16 10 1946, has escaped assessment, called upon the assessee, through his letters dated 24th February, 1955 and 4th March, 1955 to explain the same. The Income Tax Officer did not refer to the letters dated 14th January, 1955 and 10th February, 1955 addressed by him to the Bank Manager nor the reply of the Manager dated 18th February, 1955 in the said two letters addressed to the assessee. Nor were the copies supplied to the assessee nor even made available on record before all authorities including the Supreme Court. The assessee through its letter dated 24th March, 1955 replied that as per its records no such remittance was ever sent by it from Madras to Nathirmal in Bombay. On 2nd February, 1956, the Income Tax Officer for the second time called the very same particulars to which the assessee by its letter dated 9th February, 1956 once again denied the remittance by it. Despite this, by his letter dated 4th March, 1957 addressed to the assessee, the Income Tax Officer repeated his earlier request to it to explain about the remittance, complaining at the same time of silence by the assessee to his letter dated 2nd February, 1956. The assessee in its reply dated 13th March, 1957 while inviting attention to its earlier replies dated 24th March, 1955 & 9th February, 1956 reiterated that no amount of Rs. 1,07,350 was remitted by it from Madras to Nathirmal. Disbelieving it, the Income Tax Officer, by his order brought to tax the amount of Rs. 1,07,350 on the ground that it represented the concealed income of the assessee and observed that "there was no reason to doubt the banker 's statement that the amount was remitted by M/s. Kishinchand Chellaram from Madras". The assessee preferred an appeal to the Assistant Appellate Commissioner. At this stage, it came to light that the purported telegraphic transfer was applied for by one "Tilok Chand C/o M/s. K. Chellaram, 181, Mount Road, Madras" and it was received at Bombay by one "N.B. Bani". In spite of the plea of the assessee that the transaction did not relate to its firm, the Assistant Appellate 721 Commissioner holding that the assessee has not discharged the burden of proof lying on it to explain the amount, rejected the appeal. Further appeal to the Tribunal and a reference called for by the High Court at the instance of the assessee was also answered against it. Hence the appeal after obtaining special leave of the Court. Allowing the appeal, the Court, ^ HELD: (1) There was no material evidence at all on the basis of which the Tribunal could come to the finding that the amount of Rs. 1,07,350 was remitted by the assessee from Madras and that it represented the concealed income of the assessee. [731E]. In the face of the application for remittance signed in the name of Tilok Chand, that this amount was sent by the assessee and the finding to that effect reached by the Tribunal is unreasonable and perverse. What at the highest could be said to be established by the material evidence on record is that Tilok Chand remitted the amount of Rs. 1,07,350 from Madras and this amount was received by Nathirmal in Bombay. Even if it is accepted that Tilok Chand and Nathirmal were employees of the assessee as held by the Tribunal, the utmost that could be said is that an employee of the assessee in Madras remitted the amount of Rs. 1,07,350 to another employee in Bombay. But, from this premise it does not at all follow that the remittance was made by the employee in Madras on behalf of the assessee or that it was received by the employee in Bombay on behalf of the assessee. The burden was on the Revenue to show that the amount of Rs. 1,07,350 said to have been remitted from Madras to Bombay belonged to the assessee and it was not enough for the Revenue to show that the amount was remitted by Tilok Chand, an employee of the assessee, to Nathirmal, another employee of the assessee. It is quite possible that Tilok Chand had resources of his own from which he could remit the amount of Rs. 1,07,350 to Nathirmal. It was for the Revenue to rule out this possibility by bringing proper evidence on record, for the burden of showing that the amount was remitted by the assessee was on the Revenue. [730H 731D] The two documents viz. the letters dated 18th February, 1955 and 9th March, 1957 did not constitute any material evidence which the Tribunal could legitimately have taken into account for the purpose of arriving at the finding that the amount of Rs. 1,07,350 was remitted by the assessee from Madras to Bombay because while the former was not disclosed to the assessee by the Revenue Authorities till the hearing before the Tribunal in regard to the preparation of the supplemental statement of the case, giving the assessee an opportunity to cross examine the Manager of the Bank, the latter was not disclosed to the assessee at any stage. Further, there is no explanation given by the Revenue as to how these two important documents were not traceable earlier. Even if these two letters were to be taken into account, they did not supply any reasonable basis for reaching the finding that it was the assessee which sent the remittance of Rs. 1,07,350. There can be no doubt that if the amount had been remitted by Tilok Chand on behalf of the assessee he would have signed the application for telegraphic transfer on behalf of the assessee and not in his own name. This apart it is impossible to believe that the Manager of the Bank could have failed to appear before the Income Tax Officer in answer to the summons dated 5th March, 1957 and there is no doubt that this statement must have been recorded and the said statement also withheld. [729H 730A; 729B, C; 730B, E; 729F G] 722 (2) It is true that the proceedings under the Income Tax law are not governed by the strict rules of evidence and therefore it might be said that even without calling the Manager of the Bank in evidence to prove this letter, it could be taken into account as evidence. But before the Income Tax Authorities could rely upon it, they were bound to produce it before the assessee so that the assessee could controvert the statements contained in it by asking for an opportunity to cross examine the Manager of the Bank with reference to the statements made by him. Moreover, this letter was said to have been addressed by the Manager of the Bank to the Income Tax Officer on 18th February, 1955 in relation to a remittance alleged to have been sent on 16th October, 1946 and it is impossible to believe in the absence of any evidence to that effect, that the Manager who wrote this letter on 18th February, 1955 must have been incharge of the Madras Office on 16th October, 1946 so as to have personal knowledge as to who remitted the amount of Rs. 1,07,350. The Revenue authorities ought to have called upon the Manager of the Bank to produce the documents and papers on the basis of which he made the statements contained in his letter and confronted the assessee with those documents and papers but instead of doing so, the Revenue authorities chose to rely merely on the statements contained in the letter and that too, without showing the letter to the assessee. [728A F]

The appellant was a firm in Madhya Pradesh and was registered as a dealer ' under the Central Provinces and Berar Sales Tax Act, 1947 as amended by the Madhya Pradesh Sales Tax (Amendment) Act, 1953. During 1951 and 1955 the firm imported tobacco from the State of Bombay on the declaration that it would be used as raw material in the manufacture of goods for sale by actual delivery in Madhya Pradesh for consumption in that State. Tobacco was mentioned as one of the raw materials in the firm 's registration certificate issued under section 8 of the Act. However the goods manufactured by the firm were utilised for a different purposes i.e. for export outside the State. Under section 4(6) of the Act when goods were used for a different purpose other than the one declared and mentioned in the registration certificate the price paid by the dealer for such goods would be included in his taxable turnover. However in a writ petition before the High Court the appellant firm contended that the goods exempt as interstate sales were exempted from levy of sales ,,tax under section 27A of the Act which incorporated the bans in article 286 of ,the Constitution. The writ petition was allowed in September 1955. However in '1956 the Sales tax Validation Ordinance and thereafter the Sales Tax Laws Validation Act were passed. Accordingly the Sales Tax ,Authorities issued notices to the appellant firm proposing to levy purchase ,tax on the tobacco purchased by it from non resident dealers during the period November 7, 1953 to September 5, 1955. The appellant thereupon filed another writ petition before the High Court challenging the levy but it was dismissed. With certificate the appellant came to this "court. It was urged on behalf of the appellant that (i) before advantage could be taken of the Sales Tax Laws Validation Act. 1956 there had to be in existence a State Act imposing tax on inter State.sales and section 27A of the Act imposed no such tax, (ii) section 4(6) had no application because tobacco was not specified in the certificate of registration granted to the appellant as intended for use by it as raw material in the manufacture of any goods for sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State. " HELD : (i) Read with the third explanation to section 2(g)of the Act section 27 A had a positive and not merely a negative content. It gave power to the State of Madhya Pradesh, to impose a tax on a transaction falling 'Within its purview. It was therefore a pre existing law validated by the Sales Tax Laws Validation Act, 1956 and the appellant could be taxed under it in respect,of inter State sales only during the relevant period. [95 H; 96 G H] 89 M.P.V. Sundararamier & Co. vs The State of Andhra Pradesh, ; , relied on. (ii)The declaration made by the appellant to the Bombay dealers was for the purpose of obtaining exemption from purchase tax. The same was the purpose of the mention of tobacco in the registration certificate under section 8. If the language of the certificate were construed in the context of the section 8. of the Act (as amended) and along with the declaration of the appellant, it was manifest that the appellant was liable to pay tax on tobacco imported from Bombay dealers and that the requirements of a. 4(6) were satisfied. The technical omission of the Sales Tax Officer to make a specific entry in the certificate would not confer any benefit on the appellant when there was other incontrovertible evidence to show that the appellant did purchase the goods specified in the certificate as raw materials in the manufacture of any goods for the purpose of sale by actual delivery in Madhya Pradesh for the purpose of consumption in that State. [98 F H; 99 A] Modi Spinning & Weaving Mills Co. Ltd. vs Commissioner of Sales Tax, Punjab & Anr. 16 S.T.C. 310, relied on.

The respondent filed its sales tax returns for the assessment years 1948 49 and 1949 50 on the basis of its turnover of two previous years. In respect of certain commodities, the rate of sales tax was enhanced with effect from certain dates falling within the assessment years. The High Court on reference took the view that the dealer who had chosen to be assessed on the basis of its turnover of the previous year of assessment, was liable to be assessed at the rule prevailing on the first day of the relevant assessment year and that any change in the rate during the assessment year could not be applied to that assessment. The assessee, who had paid tax at the enhanced rate, applied for refund of the excess tax together with interest thereon under section 11(6) of the U.P. Sales Tax Act, 1948. The Additional Judge (Revisions), however, rejected the applica tion holding that refund was not permissible in view of section 31 introduced by the Amending Act (U.P. Act 3 of 1963). That section provided that where a dealer opted to be as sessed to tax on the basis of his turnover of the previous year, he shall be assessed to tax at such.rates as are prevalent during the year for which the assessment is being made, and if the rates of tax are altered during such as sessment year, the dealer, in respect of the turnover of such goods, shall be liable to pay tax at the altered rates, as if the altered rates were in force during the previous year also proportionately for the number of days involved as they were in force during the assessment year. According to sub section (2) of that section the assessments made at the enhanced rates in accordance with the notification dated April 9, 1948 were to be deemed to be good and valid as if they had been duly made and as if the amendment made by the insertion of section 31 had been in force on all material dates. It was expressly provided by the sub section that that was to be so notwithstanding any judgment, decree or order of any court. The High Court quashed the order of assessment on the ground that the Revising Authority was not free to take a different view from the one expressed by it (High Court) on any ground whatsoever, including the ground of any subse quent amendment of the law. Allowing the Appeal to this Court, HELD: There is nothing wrong with the view taken by the Revising Authority. When section 31 of the Act is valid, and is retroactive .and the Legislature has shown the intention of restoring the assessments and orders made before the amendment as good and valid in law as if they had been duly made. that was enough to set the controversy at rest. The amendment made by section 31 was retroactive and applied to assessments pending or closed as if the Amending Act had been in force at all material times. [554C D; 552C] Commissioner of Sales Tax, U.P.v. Bijli Cotton Mills, Hathras; , referred to. (a) Section 31 was sought to be applied to the facts of the case when the Additional Judge (Revisions) was in seisin of the case for the purpose of passing the necessary orders to dispose it of finally in conformity with the judgment of 549 the High Court. If he had passed an order under section 11(6) of the Act as directed by the High Court, that would have been of no consequence and would have been inoperative because of section 31(2). [553B C & F]

The assessee was running a business of plying buses and during its previous year ending on August 16, 1959, the buses had been plied for part of the year but were sold thereafter. The Income tax Officer assessed the difference between the sale price of the buses and their written down value to tax as profit under the second proviso to section 10(2) (vii). In appeal, the Appellate Assistant Commissioner rejected the assessee 's contention that the business had been transferred as a whole and therefore the profit in question could not be taxed. The Tribunal also dismissed an appeal taking the view that the buses had been plied by the assessee for part of the previous yea.r and the profit on the sale of these buses was taxable under the said provision. However, the High Court, upon a reference, held that the amount in question was not assessable as profit under section 10(2)(vii) on the assumption that the whole of the bus service business had been wound up during the relevant period. On appeal to this Court. HELD: allowing the appeal: Even on the assumption that the sale of the buses was a closing down or a realization sale it would nonetheless be taxable since the sale was made after the amendment of the second proviso. section 10(2)(vii) by Act 67 of 1949. [533 F G] According to the law laid down by this Court the view of the High Court would have been sustainable if the sale in the present case had been effected during the assessment year prior to the amendment of the proviso by Act 67 of 1949. The critical words which were inserted by that proviso namely, "whether during the continuance of the business or after the cessation thereof", must be given their proper meaning. It is quite plain that if the building, machinery or plant is sold during the continuance of the business or after the business ceases, the sale proceeds would be liable to tax in accordance with the proviso. When the legislature clearly provided that the proviso would apply even if the sale was made, after the cessation of the business, it is difficult to conceive that it was intended to exclude from the ambit of the proviso a sale made for the purpose of closing down the business or effecting its cessation. [535 F H] Commissioner of Income tax, Madras Iv. Express Newspapers Ltd., Madras, , 195; Commissioner of Income tax, Kerala vs West Coast Chemicals and Industries Ltd. ; Commissioner of Income tax, Kerala vs R.R. Ramakrishna Pillai, and The Liquidators of Pursa Limited vs Commissioner of Income tax, Bihar; , ; distinguished. Commissioner of Income tax vs Ajax Products Ltd., ; ; referred LI 3Sup. CI/68 3 532

Appeal No. 399 of 1957. Appeal from the judgment and decree dated July 27, 1954 of the High Court of Judicature at Hyderabad in Civil Appeals Nos. I and 2 of 1954 55. 619 section T. Desai, C. Krishna Reddi, T. Ramachandra Rao and M. section K. Sastri, for the appellants. Sadashiv Rao, J. B. Dadachanji and section N. Andley, for the respondent. March 28. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal on a certificate granted by the former High Court of Hyderabad. A suit was brought by the respondent in 1920 with respect to village Timmapet. The case of the respondent was that the village had been granted to his ancestor Harinarayan alias Raja Nemiwant Bahadur by the Nizam in 1787. On the death of Raja Harinarayan, the village was conferred by another sanad on his son Raja Govind Narayan in 1811. Ever since then the village had continued in the possession of the descendants of Raja Govind Narayan. In 1817, Raja Govind Narayan granted this village on Tahud (i.e., lease) to Raja Rama Krishna Rao, ancestor of the defendants. Inam inquiries with respect to this village started in 1901 and then an objection was made on behalf of the appellants that the village had been granted to their ancestors by the Nizam and the respondent was only entitled to the pan mukta of the village and no more. Pan mukta means a fixed sum which is payable in perpetuity for any land granted by the Ruler or the jagirdar to any person. The respondent 's case further was that the lease money was being regularly paid, though some time before the suit there was some default. The respondent had to file a suit to recover the lease money which was decreed and the decretal amount was recovered. In 1917 disputes arose between the parties and consequently in 1918 the respondent asked the appellants to vacate the village. They, however, refused to do so. Thereupon the present suit was filed in 1920 and the respondent 's case was that the lease granted to the appellants was not a permanent lease and could only enure for the lifetime of the grantor and therefore the respondent was entitled to possession of the 620 village, particularly as the appellants had begun to assert a title adverse to the respondent. The suit was resisted by the appellants, and their main defence was that the village had been granted as bilmakta with a fixed pan makta in their favour by the Nizam and therefore the respondent was only entitled to the fixed pan makta per year and could not claim to dispossess them from the village. As an alternative, defence of limitation was also pleaded, though the written statement did not make it clear whether the bar of limitation was under article 142 or article 144 of the Limitation Act. There were other defenses also with which we are however not concerned in the present appeal. The trial court framed a large number of issues, which were answered in favour of the respondent and the suit was decreed and the plaintiff was held entitled to obtain possession of the village as well as to recover mesne profits at the rate of Rs. 931 12 0 0. section per year. On the two main defenses, the trial court held that the village had not been granted by the Nizam to the appellants as claimed by them and the appellants were liable to ejectment as they could not claim the rights of a permanent losses under the lease granted to their ancestor by the respondent 's ances tor. Further on the question of limitation, the trial court held that the suit was not barred by article 142. It does not appear that the case of adverse possession was put forward in the trial court. There were two appeals to the High Court; one of them was by the appellants and the other by the respondent. The respondent 's appeal was confined only to the rate of mesne profits while the appellants reiterated their two main contentions as to the nature of their right and limitation. The appeals were heard by a Division Bench of the High Court, the Judges composing Which however differed. Schri Ran, J., agreed with the trial court as to the nature of the rights of the 'respondent as well as on the question of limitation and was of the opinion that the appeal of the appellants should be dismissed. It appears that in the High Court a plea 621 of adverse possession was also raised in the matter of limitation; but that plea was also negatived by Schripat Rau, J. Further Schripat Rau, J., was of the View that the appeal of the respondent should be allowed and the amount of mesne profits per year should be _ raised to Rs. 4,381 12 11. The other learned Judge, Khalilulzaman Siddiqu, J., seems Lo have held in favour of the appellants both on the questions of title and adverse possession and was of the view that the suit should be dismissed in toto. There was then a reference to a third learned Judge, Ansari, J. He agreed with Schripat Rau, J., on the questions of title and limitation; but as by the time he came to deliver judgment the Hyderabad (Abolition of Jagirs) Regulation, No. LXIX of 1358 F had come into force from 1951 and possession could not be granted to the respondent, Ansari, J., held that the respondent would be entitled to the compensation payable on the abolition of jagirs. As Ansari, J., had per force to differ from Schripat Rau, J., as to the part of the relief to be granted to the respondent because of the abolition of jagirs, the case was referred to a Full Bench of three Judges in view of section 8 of the Hyderabad High Court Act. The Full Bench held that as Ansari and Schripat Rau, JJ., were in agreement on the questions of title and limitation these matters did riot fall to be decided before them and would be concluded by the judgment of Ansari, J. But on the nature of relief on which Ansari, J., per force had to differ from the view of Schripat Rau, J., the Full Bench upheld the view of Ansari, J. Thereafter the appellants applied for a certificate for leave to appeal to this Court, which was granted; and that is how the matter has come up before us. Learned counsel for the appellants has urged only two points before us. In the first place, lie submits that on the evidence it has been proved that the Nizam granted a bilmakta sanad to the appellants which included this village also and therefore the appellants were entitled to the possession of the village permanently subject only to the payment of pan 622 makta to the respondent. In the second place, he submits that even if it be held that the Nizam did not grant a bilmakta sanad including this village, the appellants had perfected their title by adverse possession to the limited right of being permanent lessees under the respondent subject to payment of a fixed amount of rent per year. The first question therefore that arises is whether the appellants ' case that this village is included in the bilmakta sanad granted to them by the Nizam and therefore by virtue of that sanad they are entitled to hold this village permanently subject only to the payment of a certain sum annually to the respondent, is proved. It is now no longer in dispute that the village was granted in jagir to the ancestors of the respondent. It is also not in dispute that in 1817 Raja Govind Narayan granted a kowl in favour of the appellants ' ancestor. Under the terms of that kowl the village was granted on Tahud (lease) for the fixed sum of Rs. 1027 10 0 per year to the appellants ' ancestor. No term is mentioned in the kowl as to its duration; but after reciting that the village had been granted on Tahud for a certain fixed amount annually, the kowl goes on to say that the grantee should with entire confidence rehabilitate old and new riots and pay the amount of Tabud annually as per fixed installments, in every crop season. As one reads the kowl, on its plain terms it cannot be read to confer on the appellants ' ancestor a permanent lease on a fixed sum which was not liable to be varied at all. But the appellants claim that they had been in uninterrupted possession since 1817 for over 100 years. on the same rent when the suit was filed and this shows that the village must have been granted to them as a permanent lease. We cannot accept this contention and the fact that the appellants and their ancestors have continued in possession over 100 years on the same rent would not make the kowl of 1817 a permanent, lease in the face of its plain terms. The courts below were therefore right in the view that the kowl does not show a grant of a permanent lease on a fixed annual payment to the appellants. 623 The appellants however relied on what happened soon after the kowl was granted to them. It appears that soon after 1817 the appellants ' ancestor made a vajab ul arz (i.e., application to the Nizam) with various prayers. One of the prayers was for grant of bilmakta sanad. This was obviously with respect to certain Government lands, which the ancestors of the appellants held. In para 6 of the vajab ul arz it is said that "in these days your devotee has regularly paid Government dues and expects that he should receive sanads of bilmakta with the seal of Diwani". In para 3 it is said that "from out of the Government Talukas whichever is entrusted on Tahud, your petitioner will pay the Tahud amount and will look after and improve the Taluka". On a fair reading of the vajabul arz there can be little doubt that the ancestor of the appellants was praying that he should be granted a bilmakta sanad of lands held by him from the Government. To this vajab ul arz was appended a list of villages which apparently the ancestor of the appellants hold. This list contained 88 villages. There is no difficulty about 85 of these villages which were apparently field by the ancestor of the appellants from the Government; but about three villages there was a special mention in the list. These were:(1) Timmapet, Jagir Raja Nemivant, Makta of Zamindar of Sugur. It may be mentioned that the ancestor of the appellants was the Zamindar of Sugur and that is how he prayed for a sanad of bilmakta; (2) the village Korotkal, attached to Jagir Bahrami, makta Zamindar Sugur; and (3) Palmur, including hamlet Gattalpalli. These three villages were obviously not of the same kind as the other 85 villages. Village Timmapet was in the jagir of the ancestor of the respondent and Could not therefore ordinarily be granted to the ancestor of the appellants. Village Korotkal was an attached jagir which has handed over to one Bakhshi Ismail Khan while village Palmur had been granted to the ancestor of the appellants. Village himself in lieu of seri. Strictly speaking these three villages which stood apart should not have been included in the list of villages for which bilmakta 624 sanad was prayed for. Anyhow the order of the Government on this vajab ul arz was that a sanad with seal of Niabat Diwani be granted. The actual sanad which was granted by virtue of this order has not been strictly proved, though a copy of it appears in a judgment copy of which has been filed. We do not therefore propose to refer to this copy. It appears however that in 1880 a bilmkta sanad was again granted by the Nizam himself to the ancestor of the appellants on the death of the previous holder. The amount of bilmakta (i.e., fixed annual payment) was fixed at Rs. 1,05,412. This amount is made up of the revenue of 85 villages out of the 88 villages which were included in the list along with the vajab ul arz. The remaining three villages which we have mentioned above, were also shown in the schedule to this sanad under the heading "Deduct 3 villages of separate Jagir". The three villages under this heading are Timmapet, Korotkal and Palmur. It is the meaning of these words under the heading of which these villages appear which; required interpretation in the present suit. The contention of the respondent was that the heading showed that the bilmakta sanad granted by the Nizam excluded these villages, for the revenue of these villages amounting to Rs. 2,101 was not included in the bilmakta amount of Rs. 1,05,412. It is further contended on behalf of the respondent that the, reason why these three villages were mentioned in this manner in the schedule attached to the bilmakta sanad was that the appellants ' ancestor had wrongly included these ' villages in his list filed with the vajab ul arz and ever, since then these villages were included in the schedule to the sanads but were always shown as deducted from the bilmakta. We are of opinion that this contention of the respondent is correct and the courts below were right in accepting the respondent 's contention in this behalf. The very fact that the revenue of these villages is not included in the bilmakta amount of Rs. 1,05,412 shows that they could not be part of the bilmakta grant by the Nizam. We cannot accept the argument on behalf of the appellants that the revenue of these villages was 625 not included because the ancestor of the appellants had to pay the amount of this revenue in the case of Timmapet and Korotkal to the jagirdars and the revenue of Palmur was given to him free in seri. The very fact that these three villages appear under the heading " 'deduct three villages of separate jagir" along with the fact that their revenue is not included in the bilmakta grant of Rs. 1,05,412 shows that they were not part of the bilmakta sanad. It is true that they have been mentioned in the schedule, and strictly speaking they should not have been so mentioned there; but the reason for that in our opinion is that the appellants ' ancestor had included them in his list and they seem to have been put down in the schedule to the sanad from that list. But the way in which they were put in the schedule to the sanad shows that they were not part of the sanad granted by the Nizam. Our attention was also drawn to the Avarja said to have been prepared in 1836 in which also these three villages are included. But Avarja is merely a paper in which a note of the sanads issued each day is mentioned. The fact therefore that these; three villages were mentioned in the Avarja can be easily explained by the fact that they were mentioned in the sanads which were prepared from the list of villages supplied by the appellants ' ancestor along with his vajab ul arz. The presence of these three villages in the Avarja would not establish that the villages were granted as bilmakta by the Nizam to the appellants ' ancestor, unless the sanads granted by the Nizam establish it. We have already examined the sanad of 1880 which is on the record and have no difficulty in agreeing with the courts below that the bilmakta sanad excluded these villages and was only confined to the remaining villages for which the appellants ' ancestor paid Rs. 1,05,412 to the Nizam as the fixed annual amount. It was urged on behalf of the appellants that the Nizam was an absolute Ruler and it Was open to him to take away any land from a jagirdar and grant it to any other person. That is undoubtedly so; but even where an absolute Ruler takes away some land from 79 626 a jagirdar and gives it to another person, it seems to us clear that he would inform the jagirdar that he had taken away in whole or in part what he had granted to him and would also make it clear by proper words in the sanad granted to the other person that he was giving him the land taken away from the jagirdar. In any case where the land was granted earlier to the jagirdar, there must be a clear indication in the sanad to another person that what had been granted to the jagirdar had been taken away and was being granted to this other person. As we read the sanad of 1880 we find no clear indication in it that the village of Timmapet which was granted along with other villages as jagir to the respondent 's ancestor was being taken away at any rate in part and that in future the respondent 's ancestor would only be entitled to a fixed sum from the appellants ' ancestor with respect to this village and no more. On the other hand, in the recital of the sanad unfortunately there is nothing clear for the words "etc. " appear therein in more than one place as to the land granted. We have therefore to turn to the schedule for whatever help we can get from it. The schedule shows that these three villages were under the heading "deduct three villages of separate jagir". From that the only inference can be that these three villages were not being included in the bilmakta sanad. In any case we cannot infer from that the Nizam was intending to take away a part of the rights of the respondent 's ancestor in village Timmapet and confer them on the appellants ' ancestor. Further there is nothing to show that the respondent 's ancestors were ever informed that the Nizam had taken away part of their rights in village Timmapet. If anything, as late as 1918 village Timmapet along with others was conferred perpetually in favour of the respondent as zat jagir subject to the payment of 2 per centum of haq malkana. At that time the appellants ' ancestor had raised some dispute about his right as bilmaktadar of Timmapet but that was left undecided. On a review therefore of the evidence in this case the conclusion is inescapable that the appellants ' ancestor was never granted bilmakata sanad by the Nizam which 627 included the village of Timmapet. Their rights in this village therefore depend entirely on the kowl of 1817, which, as we have already pointed out, did not confer a permanent lease. The case of the appellants therefore based on their title on the sanads granted to them by the Nizam must fail. We now turn to the question of limitation. The case put forward before us in that connection is that the appellants have prescribed for the limited right of being permanent lessees of this land by adverse possession and the genesis of this is traced to what happened in 1875. It appears that there was trouble between the then ancestors of the parties about this village about that time. The ancestor of the respondent appears to have made an application to the Government and the Revenue Member had issued orders for delivery of possession of this village to him. Thereupon the ancestor of the appellants made a representation to the Prime Minister against that order in which it was said that the ancestor of the respondent had conferred the said village on the ancestor of the appellants by way of bilmakta (i.e., on a fixed amount) more than eighty years ago and the ancestor of the appellants had been in possession all along and had been regularly paying the amount due; the ancestor of the appellants therefore prayed that the order of delivery of possession of the land to the respondent 's ancestor be set aside. It is remarkable that in this representation the case put forward was that the village had been granted bilmakta,by the ancestor of the respondent to the appellants ' ancestor and not by the Nizam or the Government to the appellants ' ancestor. However that may be, the Prime Minister ordered that as the ancestor of the appellants had been in possession for a long time, no order could be passed dispossessing him. The ancestor of the res pondent then tried to get this order of the Prime Minister changed but failed and in consequence the appellants ' ancestor remained in possession thereof. It is urged that this shows that the ancestor of the appellants asserted that he was entitled to possession as a permanent lessee against the respondent 's ancestor and this claim was resisted by the respondents 628 ancestor and the resistance failed. Therefore it must be held that adverse possession of this limited kind was asserted to the knowledge of the respondent 's ancestor and in consequence twelve years after 1875 the adverse title would be perfected and article 144 would bar the present suit for ejectment. There is no doubt that there can be adverse possession of a limited interest in property as well as of the full title as owner: see Sankaran vs Periasami(1); Thakore Fatehsingji Dipsangji vs Bamanji Ardeshir Dalal (2); and Shrimat Daivasikhamani Ponnambala Desikar vs Periayanan Chetti (9). The present however is a case where the original kowl was granted by a jagirdar and the question arises whether in the case of a jagir there can be adverse possession of a limited interest in the nature of a permanent lease. In that connection one has to look to the incidents of a jagir, and the first incident of a jagir is that it must be taken Prima facie as an estate granted, for life: Gulabdas Jugjivandas vs The Collector of Surat. (4) In the present. case also the indication is that the jagir that was granted to Raja Harinarayan in 1787, was for life, for we find that on the death of Raja Harinarayan a fresh sanad was granted to his son Raja Govind Narayan in 181 1. Similar conclusion can be drawn from the fact that as late as 1880 a bilmakta sanad was granted to Raja Rameshwar Rao, an ancestor of the appellants on the death of his father in spite of certain sanads in favour of previous holders of bilmakta. But the appellants contend that after 1811 no fresh sanads were granted to the descendants of Raja Govind Narayan and therefore it must be held that the jagir became hereditary and was not merely for the lifetime of the grantee after Raja Govind Narayan 's death. There is no doubt that there are no sanads on the record which might have been granted to the descendants of Raja Govind Narayan; but there is equally no evidence on behalf of the appellants that no such sanads were in fact granted to the descendants of Raja Govind Nara yan, due to change in State Policy. Reliance has been (1) Mad. 467. (2) Bom. (3) (1936) L.R. 63 I.A. Mad. (4) (1878) L.R. 6 1.A. 54. 629 placed on behalf of the appellants on a publication of the Government of Hyderabad called "Jagir Administration", Vol. I, at P. 3, where the following passage appears. "Zaot or personal grants were originally tenable for lifetime only. If, however, the Sanad conferring such grant contains any words indicative of permanency the grant was treated as one in perpetuity. Formerly on the death of the grantee, the Jagir was attached and re issued in favour of his eldest son by another Sanad. " It is urged on the basis of this that the system of attachment of jagir and reissue of new sanads in favour of the eldest son fell into disuse in Hyderabad and therefore jagirs became hereditary. In the first place this passage does not show when the system of attachment of jagir and re issue of another sanad came to an end. In the second place, even this passage shows that jagirs were tenable only for life unless there was something in the terms of jagir grant to show that it was perpetual. The jagir grant of Raja Govind Narayan is on the record and there is nothing in it to show that it was granted perpetually, Therefore, it must be held to be a grant for life time only; at any rate it is clear that the system of granting sanads on each succession was certainly in force when Raja Govind Narayan succeeded, for he was granted a fresh sanad. In his case it must therefore be held that the jagir was granted to him only for life. Reliance was also placed on Raje Vinaykrao Nemiwant Brahmin vs Raje Shriniwasrao Nemiwant Brahmin (1) where a letter of 1877 from the Government of India, Foreign Department,, is quoted as saying that "The Governor General in Council also accepts the view that these inams are held in accordance with the custom of the Hyderabad State, which permits the continuance of such jagheers to posterity, notwithstanding the absence of specific provision on the point, but at the same time reserves to the State the right of resuming such grants at pleasure. " (1) I.L.R. 630 But even this letter shows that the State has got the right to resume the grant at pleasure and if that is so it cannot be said that the jagirs granted in Hyderabad were permanent and hereditary, though it may be that a son was allowed to succeed to " 'the father in the normal course. The State however had always the right to resume the grant at pleasure. The nature of jagirs in Hyderabad came to be considered by a bench of five judges of the former High Court of Hyderabad in Ahmad un Nissa Begum vs State ( '). Ansari, J., after referring to two cases of the Privy Council of the former State of Hyderabad as it was before 1947 and certain firmans of the Ruler observed as follows as to the nature of jagirs in Hyderabad: "The cumulative effect of the authorities referred to above is that the jagir tenures in this State consisted of usufructuary rights in lands which were terminable on the death of each grantee, were inalienable during his life, the heirs of the deceased holder got the estate as fresh grantees and the right to confer the estate was vested in the Ruler and exercisable in his absolute discretion. Nevertheless, the Jagirdars had during their lives valuable rights of managing their estates, enjoying the usufructs and other important privileges which conferred considerable monetary benefits on them." This view of Ansari, J., as to the nature of jagirdari tenure was accepted by the other learned Judges composing the Bench. Therefore the mere fact that sanads granted to the successors of Raja Govind Narayan have not been produced in this case or even the fact that no such sanads were granted lo them would make no difference to the nature of the jagirdari tenure in Hyderabad. It is only in 1918 for the first time that we know that this village along with other villages was conferred in perpetuity on the respon dent. There is nothing to show that before that the respondent 's ancestors had permanent hereditary rights in the jagir. The initial presumption therefore that jagirs are only for the lifetime of the grantee must prevail in the present case till we come to the sanad of 1918. Therefore upto that time it must be (1) A.I.R. 1952 Hyd. 163, 167. 631 held that the jagirs were held by various ancestors of the respondent only for their lives. In such a case where a grant is continued in a family from generation to generation and each grantee holds it for his life the limitation against any one grantee starts to run from the date his title arose. This was recognized by the Privy Council in Jagdish Narayan vs Nawab Saeed Ahmed Khan (1), where it was observed that where each grantee holds an estate for his lifetime the limitation would start to run against an heir from the date when his title accrued on the death of the previous heir. From the very fact that the grant of a jagir is only for the life time of the grantee and that his son when he gets the jagir gets a fresh grant, it follows that it was not open to a jagirdar to make an alienation which would enure beyond his lifetime and thus a jagirdar could not grant a permanent lease, unless he was specifically entitled to do so, under the sanad or the law of the State. Similarly in such cases limitation would only run against an heir from the date when his title accrued on the death of the previous heir. Consequently the appellants cannot take advantage of what happened in 1875 in the time of Raja Ramarao as the starting point of adverse possession against the respondent. So far as the respondent is concerned, he apparently succeeded to the jagir in 1910 and in his case limitation would start from 1910. The present suit was brought in 1920 and therefore so far as the respondent is concerned, there is no question of perfecting even the limited title by adverse possession as against him. ' Learned counsel for the appellant drew our attention in this connection to the case of Daivasikhamani (2), where the Privy Council held that the suits were barred under article 144 of the Limitation Act. That was however a case where a permanent kowl of temple lands was granted by a manager. It was held in view of certain facts proved in that case that the lessee had acquired permanent rights by adverse pos session, even though the manager of a temple has no authority, except in certain circumstances, to grant a permanent lease. That case is in our opinion clearly (1) A.I.R. 1946 P.C. 59. (2) (1935)) 1 [I.L. R 632 distinguishable from the facts of the present case. It is true that the manager of a temple has generally speaking no authority except in certain circumstances to grant a permanent lease of temple property; there fore a permanent lease granted by the manager of a temple may be voidable but is not void ab initio and so unless it is avoided by the succeeding manager, it may not be rendered inoperative. Further the temple in that case was the owner of the property and there was no question of any succession from father to son. In the case of a jagir on the other hand, the holder for the time being is not the owner of the property; his son when he succeeds holds the property as a fresh grantee and not on the basis of hereditary succession. A jagirdar has no right to make a permanent alienation of any part of the jagir granted to him; if he makes a permanent alienation even by way of permanent lease the same may be good in his lifetime, but it is void and inoperative after his death; the succeeding jagirdar need not avoid it; he can just ignore it as void. Therefore, while it may be possible in the case of a permanent lease granted by a manager of a temple which is the owner of the property to prescribe for a limited permanent interest by adverse possession it would be impossible to do so in the case of a jagir, for the limitation in such a case would start to run against the heir from the date when his title accrues on the death of the previous heir and no advantage can be taken of any running of time against the previous holder of the jagir. Besides, in the case of such temple grants, long lapse of time may sometimes give rise to the inference that the alienation was in such circumstances as would justify a permanent lease. No such inference is however possible in the case of permanent leases granted by jagirdars. In this view therefore the case of the appellants that they have prescribed for the limited interest of a permanent lessee against the respondent must fail. The appeal therefore. fails and is hereby dismissed with costs. Appeal dismissed.

Although title to a limited interest in property can be acquired by adverse possession, no limited interest in the nature of a permanent lease can be ordinarily acquired in a jagir which must initially be presumed to enure for the life time of the grantee unless the grant itself shows otherwise. Sankaran vs Periasami, Mad. 467, Thakore Fatehsingji Dipsangji vs Bamanji Ardeshir Dalal, Bom. 5I5, Shrimat Daivasikhamani Ponnambala Desikar vs Periayanan Chetti, (1936) L.R. 63 I.A. 261 and Gulabdas,Jugjivandas vs The Collector of Surat, (1878) L.R. 6 I A 54, referred to. Although in the former State of Hyderabad a son might in normal course be allowed to succeed to the father 's jagir, it could not be said that jagirs granted by the State were therefore permanent and hereditary in character, for the State generally .had the right to resume the grant. Raje Vinaykrao Nemiwant Brahmin vs Raje Shriniwasrao Nemiwant Brahmin, I.L.R. and Ahmad un Nissa Begum vs State, A.I.R. 1952 Hyd. 163, referred to. Where, therefore, a grant was continued in a family from generation to generation, each grantee must be taken to hold it for his life and limitation against each must start from the date of his title. Since a jagirdar could not grant a lease beyond his lifetime unless specifically empowered by the sanad or the law of the State, the period of adverse possession against one jagirdar could not be tacked to that against another for the purpose of article I44 Of the Indian Limitation Act. In this respect a jagirdar stood on a different footing from that of the manager of a temple. Jagdish Narayan vs Nawab Saeed Ahmed Khan, A.I.R. 1946 P.C. 59, referred to. Shrimat Daivasikhamani Ponnambala Desikay vs Periyannan Chetti, (1936) L.R. 63 I.A. 26i, distinguished.

Under the Madhya Bharat Municipalities Act, 1954, the Municipal Corporation determined the house lax payable by the appellant in respect of his house with effect from April 1, 1954. On appeal by the appellant regarding assessment, the Additional District Judge remanded the case to the Corporation for a fresh decision after due enquiry. Ulti mately, by a notice dated October 12, 1965 issued under section 146 of the Madhya Pradesh Municipal Corporation Act, 1956 (as amended in 1961) the Corporation revised the amount of tax payable but maintained the date of liability for payment of tax as April 1, 1954. On appeal by the appellant, the additional District Judge held that the tax was payable with effect from April 1, 1965 and not April 1, 1954 for the reason that the tax was finally fixed after the notice dated October 12, 1965. The Revision Petition of the Corporation was allowed by the High Court holding that tax was payable from April 1, 1954 because the proceedings were started even before the 1956 Act came into force. In appeal to this Court the appellant contended that (1 ) as the fresh notice was issued under section 146 of the 1956 Act on October 12, 1965 after remand of the case by the District Judge, house lax could be imposed only with effect from April 1, 1965 and not retrospectively and (2) the order of the District Judge being final under section 149(2) of the 1956 Act the High Court had no jurisdiction to interfere with that order and in any event the High Court exceeded its power under section 115, C.P.C. Dismissing the appeal. HELD: The proceeding relating to the house tax was a continuous proceeding relating to the tax payable from April 1, 1954 and the notice issued by the Corporation after remand by the District Judge did not amount to notice of fresh assessment or re assessment. [874 E F] 1. There is no force in the contention .that under the 1956 Act the municipality had no power to pursue the pro ceedings regarding the levy of tax for an earlier period. The notice issued by the Corporation to the appellant made it clear that the Commissioner was proceeding to fix the value in pursuance of the remand. The appellant 's plea that the Commissioner was not authorised to determine the value and impose the tax for any period before the date of issue of the notice ignores the fact that the valuation and deter mination of tax from 1954 was pending and the proceedings related to that period. Section 3(3) of the 1956 Act pro vides that all rates, taxes and sums of money due to the Municipalities when this Act was made applicable shall be deemed to be due to the Corporation and sub section (4.) states that all suits and other legal proceedings instituted by or against a Municipality may be continued by or against the Corporation. The proceedings in the instant case were originally taken under the Madhya Bharat Municipalities Act, 1954 and the proceedings regarding the levy of the house tax were not concluded when under the new Act the Corporation became entitled to pursue the proceedings. [874F C, 875A D] 2. (a) Under section 115, C.P.C. the High Court has power to revise the order passed by Courts subordinate to it. The District Court being subordinate to 872 the High Court, is liable to the revisional jurisdiction of the High Court. Moreover, the question of want of jurisdic tion of the High Court was not raised before that Court and cannot be allowed to be raised in this Court for the first time. [875 F G] (b) The principles governing interference by the High Court trader section 115, C.I.C. have been laid down by this Court in a catena of decisions, the last of which is The Municipal Corporation of Delhi vs Suresh Chandra Jaipuria & Anr. (A.I.R. [875H, 876A B] Baldevdas Shivlal & Anr. vs Filmistan Distributors (India) (P) Ltd. & Ors. ; , M/s. D.L.F. Housing and Construction Co. (P) Ltd. vs Sarup Singh and Ors. A.I.R. 1971 S.C. 2324, The Managing, Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and Ant. vs Ajit Prasad Tarway, Manager (Purchase and Stores) Hindu stan Aeronautics Ltd. Balanagar, Hyderabad, A.I.R. 1973 S.C. 76 and The Municipal Corporation of Delhi vs Suresh Chan dra Jaipuria and Anr. A.I.R. 1976 S.C. 2621 referred to.

The respondent gave notice to the appellants terminating the lease of agricultural land situated within two miles of the limits of the Municipality and filed a suit for eviction. The suit was contested, inter alia, on the ground that under the provisions of the Bombay Tenancy Act, 1939, the defendants had acquired tenancy rights. The civil Judge, inter alia, held that the 1939 Act was repealed by the Bombay Tenancy and Agricultural Land Act, 1948, which did not apply to the suit land, as it was within two miles of the limits of the Surat Borough Municipality and decreed the suit. On appeal, the District Judge held that the 1948 Act applied to the Suit land and set aside the decree of the trial Court. In second appeal by the plaintiff, the High Court held that the suit land was within two miles of the limits of the Municipality and therefore, the 1948 Act did not apply to the suit land. On appeal by Special Leave the appellants contended that their rights under the 1939 Act were saved and preserved under section 89(2) of the 1948 Act with the result that the lease extended to 10 years under the 1939 Act was saved thereunder, and by reason of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952, which brought the suit land within the scope of the 1948 Act, their rights so preserved came to be governed by the provisions of he 1948 Act and, therefore, they could not be evicted except in the manner prescribed by the provisions of the Act. The respondent contended that the saving provision in section 89(2) of the 1948 Act operates only if there is no express provision to the contrary and that the saving of the appellant 's right would be otiose, as he could not enforce his right under the 1948 Act. Held:(i) Before the suit was disposed of, the 1952 Act came into force, and by reason of the extension of the 1948 Act to the suit land, the respondent could not evict the appellants except in the manner prescribed by the 1948 Act. (ii)The respondent 's contention must be rejected. There is an express provision found in section 88(1) of the 1948 Act, in as much as it says that the provisions of sections 1 to 87 will not apply to the area in question. (iii)As there was a right recognized by law there was a remedy and, therefore. in the absence of any special provisions indicating a 774 particular forum for enforcing a particular right the general law of the land would naturally take its course. The High Court, therefore, was wrong in holding that the appellants could not claim the benefit of the provisions of the 1948 Act. Sakharam (a) Bapusaheb Narayan Sanas vs Manikchand Motichand Shah ; relied on.

Thakur Sangram Singh, the father of the appellant was a jagirdar of Thikana Diggi in the erstwhile State of Jaipur. His jagir was resumed on 1st of July, 1954 under section 21 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 entitling him to compensation on the date of resumption of his jagir under section 26 of the Jagirs Act. The compensation was to be determined according to the principles laid down in the Second Schedule attached to the Act. If the jagir was a settled one the compensation would be assessed on the basis of the rent rates as settled in settlement operation which were prevalent on the date of resumption and as entered in the Revenue records of the village within the meaning of section 6(3) (a)(i) read with the definition of "settled village" contained in section 2(n). If on the other hand, the jagir was an unsettled one the compensation would have to be assessed on the actual income from the rents during the three agricultural years: 1949 50, 1950 51 and 1951 52 as provided in section 7 of the Act. Prior to the date of resumption settlement operation were going on under the Jaipur State Grants Land Tenures Act, 1947 in respect of the jagir. The rent rates proposed by the Settlement Officer were published in the Rajasthan Gazette dated 23rd of August, 1952. The rent rates fixed were made applicable with effect from Ist of July 1953 and, therefore, on the date of resumption, namely, on Ist July, 1955, rent rates assessed by the Settlement Officer and approved by the Government were in force, for the purpose of payment of compensation under the Jagirs Act. Sangram Singh challenged the validity of the rent rates fixed under the settlement operation by means of a writ petition No. 308 of 1953. The High Court quashed the order settling the rent rates being in flagrant violations of sec. 82 (1) (a) and (b) of the Jaipur State Grants Land Tenures Act, 1947 with a direction to settle fresh rent rates in accordance with the said provision. Pursuant to the order of the High Court fresh rent rates were settled by the Settlement Officer on 6th of June, 1955 with retrospective operation from Ist July, 1953. According to the new settlement the total rental income from the jagir was reduced from Rs. 1,31,657.48 to Rs. 82,501 50. 475 The Jagir Commissioner by his order dated 25th November, 1960 granted compensation on the basis of the rent rates assessed in 1955. The Jagirdar unsuccessfully preferred an appeal before the Board of Revenue. Sangram Singh died in the mean time so his son the appellant challenged the order of the Board of Revenue on two grounds: (1) that the compensation should have been assessed on the basis of rent rates determined in 1953 as it stood on the date of resumption. (2) or in the absence of a valid settlement on the basis of actual income from rents during the three agricultural years. Treating the Jagir as unsettled, the High Court rejected both the grounds. Hence the appeal by certificate under Article 133 (1) (a) of the Constitution. Allowing the appeal and remanding the case, the Court ^ HELD: 1. As a result of the quashing of the order of Settlement of rent rates of 1953 by the High Court, the jagir would be taken as an unsettled one on the date of resumption. The quashing of the order of Settlement only means tabula rasa (clean slate) as if there was no determination of rent rates in 1953. [479 E F] 2. The criterion to determine whether a particular jagir is a settled one or not is to see whether the rent rates determined in settlement operations have been made applicable. It is only from the date of effectuation of a valid settlement of rent rates in respect of a particular jagir which makes the jagir a settled one. [480 C D] 3. Section 86 of the Jaipur State Grants Land Tenures Act, 1947 clearly indicates that the rent fixed by the Settlement Officer shall normally be payable from the first of July next following the date of such order and further authorises the Settlement Officer to make the same shall be payable from some earlier date. The realisation of rent from a retrospective date will not make the jagir in question a settled one as from that date. The settlement of rent rates is one thing and the realisation of rent on the basis of the settlement is quite another. In the case of a settled village the compensation would be determined on the basis of the rent rates settled during the settlement operation recorded in the Revenue Papers on the date of resumption. Thus it is the effectuation of the rent rates determined during the settlement made prior to the date of resumption which would make the village a settled village as on that date. [480 F H] In the instant case, the jagirdar became entitled to compensation on the date of resumption. If the village was an unsettled village on the date of resumption he would be entitled to compensation on the basis of the village being unsettled. The right of compensation vested in the jagirdar on the date of resumption and he could not be deprived of his right by a subsequent amendment unless the amendment in law specifically or by necessary implication provided for depriving the jagirdar of his vested right. There is nothing in the definition of the term "settled" under sec 2 (n) of the Act or in sec. 86 of the Jaipur State Grants Land Tenures Act to indicate that the Legislature intended to affect the vested right. [481 A D]

On the strength of a Will dated 25th May 1959, executed in her favour by one Purohit Mani Ram, the respondent Smt. Ishroo Devi filed a suit for recovery of the schedule property in the plaint. It was alleged in the plaint that the appellants (A 1, son; A 2, Wife; and A 3, grand daughter of Purohit Mani Ram) after the death of Purohit Mani Ram wrongfully disposed her after getting the name of appellant No. 1 mutated in the records and that the three items of the schedule property were the separate properties of the testa tor and that he was entitled to dispose them under the Will. The appellants averred in their written statement that the properties belonged to the joint family of which the first appellant and his father Purohit Mani Ram were members and as the properties were joint family properties, they cannot he disposed of by Will. It was further alleged that the Will was a forged one and is fictitious. The trial court, accepting the evidence of PW1, an advocate, who advised in the preparation of the Will and also an attest ing witness, PW2 the scribe and PW3 who deposed the fact that the properties were self acquired ones of late Purohit Mani Ram, decreed the suit as regards item No. 1 (a) of the plaint schedule but dismissed the claim as regards items l(b) and 2 holding that they were ancestral ones. On ap peal, the High Court accepted the findings of the trial court and confirmed the decree as regards item l(a) of the property but modified the order as regards item l(b) and 2 by allowing the claim of the respondent to the extent of 1/2 share since under section 27 of the Jammu & Kashmir Hindu Succession Act Mani Ram was entitled to dispose of his interest in the joint family property by Will. In appeal by certificate to this Court, the appellant contended: (i) The Will was not a valid one for the reasons, namely, (a) it was ante dated in order to escape the prohi bition against alienation introduced by Ordinance which came into force in July 1959; (b) the signature on the Will was forged; (c) the Will is a most unnatural one as it had not provided for the son or the wife or any near relative but has provided to a distant relative and (d) in a suit for partition filed by the son against Mani Ram, the latter gave an undertaking in the court not to alienate his properties which would improbalise the execution of the Will; (ii) The hereditary profession of Mani Ram being that of a priest whatever he earned while practising that profession and all his acquisitions should be held to be joint family property. (iii) In view of the Mitakshara law applicable to the estate when partition of the joint family property takes place during the father 's life time at the instance of the son, the mother also has a share equal to him. The Court confirmed the decree in respect of item 1 (a) of the property in favour of the respondent, modified the decretal order of the High Court in respect of items 1(b) and 2 of the schedule property as 1/3rd in favour of appel lant No. 1, 1/3rd in favour of appellant No. 2 and 1/3rd in favour of respondent as entitled by the Will. The Court, HELD: (1) The plea that the Will was executed after July 1959 when there was a prohibition against the alienation and that it was pre dated and not executed 401 on the day on which it purports to be is without any sub stance and against the evidence on record. [403 H, 404 A] (2) The contention that the Will is an unnatural one is also without substance. The non disclosure of the execu tion of the Will is understandable because Mani Ram did not want anyone, particularly his son, to know about his pos sessing of the property by Will. [404 B, D] (3) The findings of the two lower courts that the Will is a genuine one and was executed by Mani Ram by his own free will cannot be assailed. In fact, there was no chal lenge to the gist of the Will noted by PW2, the scribe, in one of his regularly kept record; there was no denial by the first appellant, the son of Mani Ram that the signature found in the Will was not that of his father and there is no reason why the cogent evidence of PW 1, a respectable advocate who spoke of his advising in the preparation of the Will having seen the executant sign the Will in his presence be not accepted. [405 A C] (4) The income from the practice of a hereditary profes sion will not be a joint family property. Item 1 (a) of the Property is the self acquisition of Mani Ram and the decree of the appellate court so far as item No. 1 (a) is concerned must be confirmed. [406 A, D] Hanso Pathak vs Harmandil Pathak and Anr., AIR 1934 Allahabad 851, approved. Chalabhai Gaurishankar vs Hargowan Ramji & Ors. I.L.R. 36 Born. 94, over ruled. (5) Under the Mitakshara law excepting Madras, in the other states referred to in the decisions cited when there is a partition between the son and his father the mother is entitled to a share equal to that of the son. In the in stant case the case of the first appellant was that the joint family consisted of himself and his father alone, though in the earlier partition suit filed by him he claimed 1/3rd share conceding that his father and mother are entitled to the other 2/3rd share. As no decision in re spect of the interest of the male Hindu in Jammu & Kashmir was cited the question is remitted to the High Court for decision as to what is the extent of the interest as regards items I(b) & 2 of the plaint Schedule properties. [406 E F, 407 B E] Dular Koeri vs Dwarkanath Misser ILR ; Sumrun Thakoor vs Chunder Mun Misser & Ors., ILR ; Hos banna Devanna Naik vs Devanna Sannappa Naik and Ors. ILR and Pratap Singh vs Dalip Singh ILR 52 All. 596, approved. (6) In view of section 27 of the Jammu & Kashmir which provides that any Hindu male may dispose of by Will any property which capable of being disposed of by him in law and also explanation to that section which makes it clear that the interest of a male Hindu in a Mitakahara coparcenary property be deemed to be property capable of being disposed of by him within the meaning of the sub section, in the instant case Mani Ram can dispose of his share under a Will. Admittedly the respondent, will be entitled to 1/3rd share in respect of item l(b) and 2 of the plaint schedule in addition to the decree in her favour in respect of item 1 (a). [406 D E, 407 E F] [The Court remitted the case back for the determination of the interest which Mani Ram had in the joint family property at the time of his death which he could dispose of by his Will and grant a decree accordingly.]

The appellant was the owner of the suit land. Alleging that the 2nd respondent, who was the Mahant of an Akhara, was the occupancy tenant and that he had allowed his lessee to dig it up and rendered it unfit for cultivation, the appellant evicted the 2nd respondent from a part of the land in 1940, and from the rest of it in 1943. In 1950, the 2nd respondent was removed from the office of Mahant, in proceedings under section 92, C.P.C., and in 1953, the 1st respondent was appointed in his place. In 1957 the 1st respondent filed a suit for possession of the land, alleging that the Akhara itself was the occupancy tenant. The trial court decreed the suit and the High court confirmed the decree. In the appeal to this Court, the appellant contended that the suit was barred by limitation. HELD: Upon the eviction of the 2nd respondent the occupancy right in the land merged in the right of ownership of the appellant. Apart from it, the actual physical possession of the land having been continuously with the appellant to the exclusion of the occupancy tenant, whether it was the 1st respondent or the Akhara itself, for a period of more than 12 years before the institution of the suit, the occupancy right was extinguished. If the 2nd respondent represented the Akhara in the eviction proceeding the decrees therein would bind the 1st respondent as his successor. If the 2nd respondent did not represent the Akhara, the possession of the appellant under those decrees would be adverse to the Akhara. The 2nd respondent as the Mahant, or the Receiver appointed by the Court In the section 92 proceedings, could have filed a suit on behalf of the Akhara, and so, the 1st respondent 's suit after 12 years of adverse possession by the appellant was barred. (436D E; 438F H] Sudaram Das vs Ram Kirpal, L.R. 77 T.A. 42 and Subbaiya V. Mustapha, L.R. 50 I.A. 295, applied Dwijendra Narain Roy vs Joges Chandra De, A.I.R. 1924 Cal. 600, referred to.

'B ', who received some agricultural lands and a house in the partition of his ancestral properties, and his minor sons 'H ' and 'R ' (Respondent) mortgaged their properties for a sum of Rs.5,500 by executing a conditional sale deed on 22nd April, 1948 in favour of 'N '. But by a reconveyance deed dated 11th February, 1953 they got their properties reconveyed in their favour by 'N '. On the same"day i.e. 11 th February, 1953 they sold some agricultural lands and the house for Rs.5,500 to 'M ', (Appellant) who was brother of 'N '. Subsequently 'M ' sold the house to 'W ' and others. The remaining land was sold by them on the same date to 'V ' and his brother. 'B 's sons and wife (Plaintiffs) filed a suit against 'M ' (Defendant No. 1), 'V ' and his brother (Defendant No. 2 and 3), 'W ' and others (Defendant No. 4 to 8) and 'B ' (Defendant No. 9) for a decree of possession of the agricultural lands and house which came in their share as members of the Joint Hindu Family contending that alienation made by 'B ' was not binding on them because it was neither for any legal neces sity nor for the benefit of the minors or their Estate, but was for satisfying the personal needs of 'B ' who had the vices of drinking and gambling and was spending everything he used to earn in his business of grain delali. 41 The Trial Court dismissed the suit by holding that (i) 'B ' was not indulging in any vices, (ii) the alienation made by 'B ' was for the satisfaction of ' the antecedent debt due on mortgage '; and (iii) 'B ' was a broker who needed cash capital for his business and (iv) the plaintiffs and 'B ' were estopped from challenging the title of 'W ' and others, since 'W ' and others (Defendant No. 4 to 8) had spent Rs.25,000 on the reconstruction of the house purchased from 'M ' within the knowledge of plaintiffs and without their objection. Plaintiffs preferred an appeal before the High COurt contending that 'M ' and 'N ' ran a family firm of which they were owners and the execution of the conditional sale deed, reconveyance deed and the subsequent sale deed of the same day were nothing but a device and were really a part of one and the same transaction and that if the original transac tion of 22nd April, 1948 of the conditional sale with 'N ' was not valid and binding on the minor sons of 'B ' then the subsequent transaction of 11th February, 1953, for payment of debt or liability due under that alienation cannot be supported. Allowing the appeal, the High Court reversed the judg ment of the Trial Court, had passed a decree for possession of the suit properties in favour of the plaintiffs by hold ing (i) that the transactions dated 22nd April, 1948 as well as all other transactions of 11th February, 1953 were part of the same transaction; (ii) that since transaction dated 22nd April, 1948 was invalid because it was not supported by any legal necessity, then the subsequent transactions of sale and reconveyance of 11th February, 1953 were also invalid. Hence this appeal by special leave by the defend ants. Allowing the appeal in part, this Court, HELD: 1. The doctrine of pious obligation under which sons are held liable to discharge their father 's debts is based only on religious considerations. This doctrine inevi tably postulates that the father 's debts must be vyavaharik. If the debts are not vyavaharik or are vyavaharik the doc trine of pious obligation cannot be invoked. [59E] Luhar Amrit Lal Nagji vs Doshi Jayantilal Jethalal & Ors., ; , relied on. Where the sons are joint with their father, and debts have been contracted by the father even for his own personal benefit, the sons are liable to pay the debts provided they were not incurred for an immoral 42 or illegal purpose and such debts were antecedent to the alienations impugned. [61B] 2.1 Even if any loan is taken by the father for his personal benefit which is found as vyavaharik debt and not avyavaharik, the sons are liable to discharge their father 's debts under the doctrine of pious obligation and if any alienation of the joint family property is subsequently made to discharge such antecedent debt or loan of the father, such alienation would be binding on the sons. [6 ID] Mulla, "Principles of Hindu Law", 15th Edn. Paragraph 295; lrukulapati Venkateshwara Rao vs Vemuri Amayya & Ors. , A.I.R. 1939 Mad. 561, referred to. Vyankates Dhonddeo Deshpande vs Sou. Kusum Dattatraya Kulkarni & Ors., [1979] 1 955, relied on. Atchutaramayya vs Ratanjee Bhootaji, [1926] A.I.R. Mad. 211; Suraj Bansi Koer vs Sheo Prasad Singh, 6 I.A. 88 (PC) cited. Benares Bank Ltd. vs Hari Narain & Ors., LIX I.A. 300, distinguished. "Antecedent debt" means antecedent in fact as well as in time i.e. to say, that the debt must be truly independent and not part of the transaction impeached. To constitute a debt an "antecedent" debt it is not necessary that the prior and subsequent creditors should be different persons. All that is necessary is that the two transactions must be disassociated in time as well as in fact. [53E F] Mulla, "Principles of Hindu Law", 15th Edn. paragraph 295; Brij Narain vs Mangala Prasad, A.I.R. 1924 P.C. 50, referred to. 4. It is necessary to examine each transaction independ ently and then to arrive at a conclusion whether such a transaction or alienation can be held to be valid or not. [52G H] 4.1 The approach of the High Court in considering trans action dated 22nd April, 1948 as well as all the other transactions of 11th February, 1953 being part of the same transaction, is not correct. [57B] 5. The conditional sale deed dated 22nd April, 1948 was not void even if the amount was taken by 'B ' for his person al benefit of starting a 43 new business of grain. It was an independent transaction both in fact as well as in time to the subsequent transac tions of 11th February, 1953. The transaction of reconvey ance deed dated 11th February, 1953 was for the benefit of not only 'B ' but for the entire family including the plain tiffs. There was no consideration for this reconveyance of the property except the transaction of sale made in favour of 'M ' on 11th February, 1953. This sale deed was perfectly valid and was made in order to pay the antecedent debt. [57F G] 6. So far as the house property is concerned, the Trial Court 's finding that defendants Nos. 4 to 8 had spent Rs.25,000 on the reconstruction of the house within the knowledge and without the objection of the plaintiffs Nos. 1 and 2 and as such plaintiffs No. 1 and 2 and defendant No. 9 were estopped from challenging the title of those defendants had not been set aside by the High Court. This finding of the High Court has to be upheld. [61F G] 7. So far as the transactions of sale of the remaining properties in favour of 'V ' and his brother are concerned, they stand on a different footing altogether. The High Court in this regard has recorded a clear finding that the afore said alienations were made neither for any legal necessity nor for the benefit of the State nor for payment of any antecedent debt. [61H; 62B] The evidence in this regard is also fully convincing that the aforesaid transaction had no connection with pay ment of any antecedent debt. The finding of the High Court has to be upheld in this regard. [62C] 8. Accordingly the Judgment and decree passed by the High Court is set aside to the extent of granting a decree for possession of the house property and agricultural lands sold in favour of 'M ' on 11th February, 1953, and the suit with regard to these properties is dismissed. The rest of the Judgment and decree of the High Court in respect of agricultural lands which were alienated in favour of 'V ' and his brother is maintained and 'the suit of the plaintiffs for possession with regard to these properties stands decreed. [62D E]

In respect of an area of 18.34 acres in Mulligoor village, Nilgiris District belonging to the respondents and acquired by the appellant for the purpose of hydro electric scheme at Kundah in May 1957 the land acquisition officer awarded a compensation of Rs. 500 / per acre as against its purchase price of Rs. 230/ per acre in February 1951; but on a reference the Subordinate Judge raised it to Rs. 1800/ per acre. On appeals by the Appellant/State and the Respondent/Claimant, while dismissing the State appeal and partly allowing the respondent 's appeal, the High Court of Madras by its common judgment raised the rate of compensation to Rs. 3000/ per acre. In the two appeals by certificate, the appellant State contended (i) that raising the rate of compensation was without any basis and merely on speculation, (ii) that the rates at which the adjoining lands were sold for house sites cannot be safe guides; (iii) that allowing flat rate of Rs. 3000/ per acre with out due regard to the quality or classification of the land is bad in principles of fixing compensation. Negativing the contentions of the State and dismissing the appeals, the Court ^ HELD: (1) The awards given by the Land Acquisition Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates fund in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date. The awards can be taken as safe guides. and are admissible in evidence for the determination of compensation. [358EF] (2) In the instant case, from an examination of the evidence and the documents and having regard to the location, advantages and facilities of the land and the admitted rise of price of the land between the years 1951 and 1957, it cannot be said that the High Court either departed from any well recognised principle in determining or committed an error in raising the amount of compensation. [359A B]

minal Appeal No. 165 of 1960. Appeal by special leave from the judgment and order dated December 19, 1958, of the Allahabad High Court in Criminal Appeal No. 1010 of 1956. Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellants. O. C. Mathur and C. P. Lal, for the respondent. March 28. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is by four persons against the order of the High Court of Judicature at Allahabad dismissing their appeal and confirming their conviction for several offences including one under section 302 read with section 149, I.P.C., by the Sessions Judge, Saharanpur. 603 These appellants, along with three other persons, were alleged to have forcibly taken two carts loaded with sugarcane from the field of Suraj Bhan through the field of Harphool, in transporting the sugarcane from the field, about a furlong and a half away, to the public passage running by the side of Harphool 's field, and to have beaten Harphool and others on Harphool 's protesting against the conduct of the appellants ' party at the damage caused to his wheat and gram crop. Ram Chandar, one of the appellants, was armed with a hatchet (kulhari) and the others were armed with lathis. Harphool and others who came to his help struck the appellants ' party also in self defence. Harphool died as a result of the injuries received in this incident. The appellants admitted their taking the carts through Harphool 's field and alleged that at Harphool 's protest they asked to be excused, promised not to take the carts through the fields in future and pleaded for the carts being allowed to cross the very small portion of the field which remained to be covered before reaching the public passage. The accused state that in spite of all this meek conduct on their part, Harphool and his companions attacked them and that then they also struck Harphool and others in self defence. Both the learned Sessions Judge and the learned Judges of the High Court arrived at concurrent findings of fact an& held that (i) there was no passage through or along the boundary of Harphool 's field; (ii) when the carts were near the passage and Harphool protested, the appellants ' party began the attack; and (iii) the appellants ' party had no right of private defence of person but had formed an unlawful assembly with the common object of committing criminal trespass over Harphool 's field and using force to the extent of causing death, if necessary, in case they were prevented from taking the carts through the fields. They accordingly convicted the appellants of the various offences. Mr. Sethi, learned counsel for the appellants, has raised four contentions: (i) Any right of private 604 defence of property which Harphool had against the offence of criminal trespass committed by the appellants ' party, had ceased when the criminal trespass was over or when the trespassers indicated their intention to cease the criminal trespass; (ii) If one of the rioters causes injury for which the other rioters are to be liable under section 149, I.P.C., the injury must have been caused in prosecution of the common object; (iii) An assembly ceases to be an unlawful assembly after the completion of its common object and only that member of the unlawful assembly would be liable for any criminal act committed later, who has actually committed it; and (iv) The learned Judges of the High Court misdirected themselves in raising certain inferences from the facts found. It is clear, from the first three contentions raised, that they are all based on the supposition that the criminal trespass which the appellants ' party was committing had come to an end when Harphool is said to have prevented them from committing criminal trespass and that it was Harphool who began the attack. There is no such finding recorded by the High Court. The two carts had not left Harphool 's field and reached the public passage. They were inside the field when the incident took place. They were near the boundary of Harphool 's field. They must, in, the circumstances, have been several yards inside the field. Criminal trespass had not therefore come to an end and therefore Harphool had the right to prevent the appellants ' party from continuing to commit criminal trespass for whatever short distance they had still to cover before reaching the public pathway. It is true that the appellants ' party had to get out of the field and that this they could not have done without committing further criminal trespass. But it does not follow that this difficult position in which the party found itself gave them any right for insisting that they must continue the criminal trespass. They had to abide by the directions of Harphool, whatever be the degree of patience required in case they were not allowed to move in any direction in order to leave the field. If Harphool had started the attack in the 605 circumstances alleged by the appellants, there may have been some scope for saying that he acted unreasonably in taking recourse to force in preference to taking recourse to public authorities or to such action which a less obstinate person would have taken and had therefore lost any right of private defence of property against the offence of criminal trespass. We are therefore of opinion that the three propositions of law which, as abstract propositions of law, are sound to some extent, do not arise in the present case. The fourth contention is really directed against the view of the High Court that the common object of the appellants ' party was to force their way through the fields of Harphool and to use force to the extent of causing death, if necessary, and that the death of Harphool was caused in prosecution of that common object. We do not agree with the contention. It is clear from the site plan, and has been so held by the Courts below, that the appellants ' party could have taken their carts to the same public passage by going northwards from Suraj Bhan 's sugarcane field. In so doing, they would have had to cover a shorter distance up to the public pathway and would have had the necessity to trespass through one field only, and that too, of one of their own community Sandal Rajput. The other fields lying on the way were of Suraj Bhan himself. Their choosing a longer route which made them take their carts through the fields of several Sainis including Harphool, could not be justified. It must have been obvious to them that in so doing they would cause damage to the crops growing in the number of fields through which they would have to pass. Such damage must give rise to protests by the persons to whom loss is caused. It could be expected that some such persons might object to the passing of the carts and that unless they be prepared to cover back the distance to their own field, they would have to insist on proceeding through the objector 's field. Such instances must lead to a clash and to the use of violence. The objector is not expected to be prepared for such a conduct of the appellants ' party and therefore for using force. 606 The appellants ' party consisted of a number of persons one of whom was armed with a hatchet. It is therefore not unreasonable to conclude that the appellants ' party was prepared to use force against such an objector to achieve their object of taking the carts to the public pathway by a short cut. The northern route, previously mentioned, was certainly shorter to reach the public passage, but that route, along with the longer portion of the public passage to be covered before reaching the spot near which the incident took place, was longer than the westerly route through the field which the party had taken. When several persons are armed with lathis and one of them is armed with a hatchet and are agreed to use these weapons in case they are thwarted in the achievement of their object, it is by no means incorrect to conclude that they were prepared to use violence in prosecution of their common object and that they knew that in the prosecution of such common object it was likely that some one may be so injured as to die as a result of those injuries. Harphool did receive seven injuries one of which was an incised wound, bone deep, on the right side of the head. Another injury consisted of a contused wound, bone deep, on the left side of the head. Harphool died within twenty four hours of his receiving injuries. The death was due to shock and hemorrhage caused by the injuries of the skull bone and brain on account of the wounds on the head. The offence made out on account of the death of Harphool caused by the concerted acts of the members of the appellants ' party has been rightly held to be the offence of murder. In view of what we have stated we do not see any force in this appeal. It is accordingly dismissed. Appeal dismissed.

The appellants one of whom was armed with hatchet and others with lathis, on being prevented by one 'H ' and his suppor ters through whose field they were committing criminal trespass with the common object to reach a public passage with two loaded carts, are alleged to have attacked 'H ' and his supporters, as 76 602 a result of which 'H ' died. The defence was that on 'H 's protest the appellants asked to be excused and pleaded to be allowed to cross the remaining small portion of the field to reach the public passage, whereupon they were attacked and in self defence they attacked back. The appellants ' case was that H 's right of private defence of the property had ceased for the reasons that the criminal trespass was over on the appellants having indicated their intention to do so, and they were no more an unlawful assembly as their common object had ceased and thereafter all were not responsible for acts of another. Held, that when a criminal trespass had been committed it did not come to an end on the trespasser 's expressing regret and then pleading to be allowed to proceed further with a view to end such a trespass. The aggrieved party had the right to prevent the trespasser from continuing to commit such further criminal trespass, and his directions had to be abided by the trespasser, whatever be the degree of patience required; the trespasser had no right to insist on proceeding further even if not allowed to move in any direction in order to leave the field. Held, further, that when several persons were with lathis and one of them was armed with hatchet and were agreed to use these weapons in case they were thwarted in the achievement of their object, it would be concluded that they were prepared to use violence in prosecution of their common object and that they knew that in the prosecution of such common object it was likely that some one might be so injured as to die as a result of those injuries.

In a petition for special leave to appeal filed by him, the petitioner indulged in wild and vicious diatribe against the Chief Justice of the High Court who had passed the order sought to be appealed from. In answer to the notice issued to him under the he prayed for two weeks ' time to file an affidavit (which was granted) and stated that he was not prepared to withdraw the allegations but desired to make amends. When the matter came up again, his counsel placed before the Court an affidavit said to contain the sincere and unconditional apology of the petitioner and pleaded that the Court should accept it and refrain from sending him to prison. Council, relying on In re: Shri section Mulgaonkar; , suggested that "a normative guideline for the judges to observe in this jurisdiction" was not to be hypersensitive where distortions and criticism overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude". Rejecting the plea and sentencing the contemner to suffer simple imprisonment for a period of two months. ^ HELD: There is never any risk of judicial hypersensitivity. The very nature of the judicial function makes judges sympathetic and responsive. Judges more than others realise the foibles, the frustrations, the undercurrents and the tensions of litigants and litigation. But, as elsewhere, lines have to be drawn. The strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of judges. It is not that judges need be protected; judges may well take care of themselves. It is the right and interest of the public in the due administration of justice that has to be protected. The question has to be approached not from the point of view of the judge whose honour and dignity require to be vindicated, but from the point of view of the public who have entrusted to judges the task of due administration of justice. A contumacious disregard of all decencies, such as that exhibited by the contemner in this case can only lead to a serious disturbance of the system of administration of justice, unless duly repaired at once by inflicting an appropriate punishment on the 720 contemner which must be to send him to jail to atone for his misconduct and thereafter to come out of prison a chastened but a better citizen. [722 D G; 723E G] Advocate General of Bihar vs M. P. Khair Industries, ; , referred to.

A feud between two families has resulted in tragic consequences. Seventeen lives were lost in the course of a series of five incidents which occurred in quick succession in five different villages, situated in the vicinity of each other, in Punjab, on the night between August 12 and August 13, 1977. The seventeen persons who lost their lives and the three who substained injuries included men, women and children related to one Amar Singh and his sister Piaro Bai. In this connection one Machhi Singh and his eleven companions, close relatives and associates were prosecuted in five sessions cases, each pertaining to the concerned village in which the killings took place. Machhi Singh was the common accused at each trial. The composition of his co accused differed number wise and identity wise from trial to trial At the conclusion of the series of trials, the accused found guilty were convicted under appropriate provisions. Four of them were awarded death sentence, whereas sentence of imprisonment for life was imposed on nine of them. They were also convicted for different offences and appropriate punishment was inflicted on each of them in that behalf. The order of conviction and sentence gave rise to five murder references and fourteen appeals by the convicts before the High Court of Punjab and Haryana. Having lost their appeals and the death sentences having been con firmed, the appellants have come in appeal by way of special leave. The Court considered the following: (a) What normal guidelines are to be followed so as to identify the "rarest of rare cases" formula for imposing death sentence, as spelled out in Bachan Singh vs State of Punjab, ; (b) Reliability of eye witnesses to a crime under light shed by the lantern in a village to identify connect an accused to the crime; (c) invocation of the doctrine of benefit of doubt; 414 and (d) the effect of non summoning the magistrate for recording dying declaration. Allowing the Criminal Appeals Nos. 79/81 and 86/81 and dismissing the other appeals, the Court ^ HELD : 1:1. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the 'offender ' also require to be taken into consideration alongwith the circumstances of the 'crime '. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. [433 A E] Bachan Singh vs State of Punjab , relied on, 1;2. In order to apply these guidelines inter alia the following questions may be asked and answers : (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and called for a death sentence ? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender. [433 E G] 1:3. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed here in above, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. [433 G H] 2. The villagers living in villages where electricity has not reached as yet, get accustomed to seeing things in the light shed by the lantern. Their eyesight gets conditioned and becomes accustomed to the situation. Their powers of seeing are therefore not diminished by the circumstance that the incident is witnessed in the light shed by the lantern and not electric light. Paucity of light cannot, therefore, improbablise the commission of the crime by the accused. [417 C D] 3:1. When a piece of evidence introduced and relied upon by the prosecution itself creates a doubt (a reasonable doubt) as regards the complicity of the accused, even if there are no infirmities in other evidence, the doctrine of benefit of doubt must be invoked by the court in favour of the accused. [422 F G] 415 In the instant case, though there is no infirmity in the evidence of PW Amar Singh and PW Mohindo to connect Mohinder Singh to the crime, the fact that the second rifle used in the commission of crime having been originally issued to one Kashmir Singh does not satisfactorily establish the link. [422 B, E F] 3:2. When the deceased was making good recovery and having regard to the condition of his health, no danger to his life was apprehended and therefore in that fact situation, the magistrate was not summoned, no fault can legitimately be found on this score for getting the benefit of doubt in favour of the accused. Any statement made to the police by such deceased can be subsequently allowed to be treated as dying declaration and evidence scanned. [429 G H]

The respondent Municipality issued a notice under sub section (1) Of section 153A of the Bombay District Municipal Act, 1901, as adapted and applied to the State of Saurashtra and as amended by Act XI Of 1955, calling upon the appellant to show cause why it should not be directed to discharge the effluent Of it 's chemical works in the manner specified in the notice. On the appellant objecting to the notice and the requisition contained therein, a Special Officer was appointed by the Government under sub section (3) of that section to hold an enquiry in the matter. The Special Officer treated some of the issues raised,, as preliminary issues of law and held that the question whether the discharge of the effluent polluted the water and adversely affected the fertility of the soil was a matter for the subjective satisfaction of the Municipality and binding on him and was as such beyond the scope of his enquiry. The question for determination in this appeal was whether the Special Officer was right in the view he took of section 153A(3) Of the Act and in restricting the scope of the enquiry in the way he did. 389 Held, that Special Officer took a wrong view of his jurisdiction under section 153A(3) Of the Act and was in error in restricting the scope of the enquiry. There could be no doubt on a proper appreciation of the scheme laid down by the provision of section 153A of the Act, correctly construed, that while the subjective satisfaction of the Municipality as to the existence of the nuisance could not be questioned at the initial stage when it sought to put the machinery provided by sub section (1) in motion or under sub section (2) where such existence was admitted, the situation contemplated by sub section (3) where the notice and the requisition were wholly disputed, and no mere modification of the requisition sought, was entirely different. The language of sub section (3) and particularly the words " to hold an enquiry into the matter " used by it clearly indicated that where there was such a contest, it was the duty of the Special Officer to enquire into the existence of the alleged nuisance and come to a finding of his own. The status of the Special Official and powers conferred on him by the relevant provisions of the Act, clearly indicated that sub section (3) was intended by the Legislature to be a protection against any arbitrary exercise of its power by the Municipality. It was of the utmost importance that such proceedings should in the interest of the community, be disposed of with all possible expedition. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 173 of 1959. Appeal by special leave from the judgment and order dated July 16, 1958, of the Special Officer appointed under section 153(3) of the Bombay District Municipal Act, 1901 (Bombay Act No. 1 1 1 of 1901), as applied to Saurashtra, Zalawad Division, Surendarnagar.

The appellant firm was made liable to pay Rs. 24,395/as customs duty for exporting charcoal from the State Sirohi and as it did not deposit the amount the collector of Sirohi, on the requisition of the customs authorities, issued a notice for recovery of the said amount under the Public Demands Recovery Act. The appellant moved the High Court under article 226 of the Constitution. Its case was that the order of the Sirohi State Council levying customs duty on the export of charcoal at the rate of 1 81 per maund wag invalid and ultra vires. The case of the respondent was that the said duty had been validly levied by virtue of the resolution passed by the State Council and approved by the Rajmata. The High Court held in favour of the respondent and dismissed the petition. The question was whether the impugned order dated May 31, 1948, purported to have been passed in pursuance of the Council Resolution dated May 15, 1948, imposing for the first time customs duty on export of charcoal, had been validly issued. Held, that the State Council did not have legislative power ; after the passsing of the Regency Act for the Sirohi Minority Administration, 1947, it could pass a law only with the approval of the Board of Regency of which the Rajmata Saheba was the President ; since there was nothing to show that the Board had approved of. the order, it must be held to be invalid. It was not correct to say that the Raj Mata could act independently of the Board, it was the Board alone that could collectively legislate or pass executive orders. The view of the High Court that the Raj Mata could be treated as the de facto Ruler as the State was clearly erroneous. 256 Nor could the levy on the appellant be sustained under the relevant provisions of Rajasthan Ordinance (No. 16 of 1949), which had no application.

The appellant filed complaints before the Chief Presidency Magistrate alleging that the officers of the respondent had committed an offence under the . They were acquitted on April 4, 1968. On July 1, 1968, appeals were filed in the High Court by the appellant (cornplainant) but the High Court held that they were barred by article 114 of the . In appeal to this Court, it was contended that the appeals were filed not under section 417 Cr.P.C, but under section 624B of the . HELD:(1) Section 404, Cr.P.C., provides that no appeal shall lie from any order of a criminal court except as provided by the Code or by any other law for the time being in force. But section 624B does not confer any right of appeal from an order of acquittal passed by a criminal court in respect of an offence under the . It only em powersthe Central Government to present appeals through persons mentioned in that section. [1861 E G] (2) Section 417, Cr. P.C. provides right of appeal in cases of acquittal and if the order of acquittal is passed in a case instituted upon complaint, an application for special leave to appeal from such order should be filed within 60 days from the date of the order of acquittal, and under article 114 of the , the appeal should be filed within 30 days from the date of the grant of special leave. The appeals were not rightly entertained in the present case, because (a) there was no application for grant of special leave under section 417(3), Cr. P.C., (b) the appeals were incompetent without grant of special leave; and (c) they were barred by limitation. [860 G H; 861 H; 862 A D]

In respect of the assessment year 1949 50, the appellant while submitting his return disclosing his turnover of the sale of oil, included therein the value of the hydrogenated oil that he sold and claimed a deduction under r. 18 of the Turnover and Assessment Rules in respect of the value of the groundnuts which had been utilised for conversion into hydrogenated oil on which he had paid tax at the point of their purchase. The sales tax authorities rejected the claim on the ground that hydrogenated groundnut oil was not groundnut oil within that rule. This view was upheld by the High Court on February 11, 1955, in the Tax Revision Case No. 120 of 1953 filed by the appellant, but, on application, the High Court granted a certificate of fitness under article 133(1) of the Constitution of India on the ground that substantial questions of law arose for decision in the case. For the assessment years 1950 51, 1951 52 and 1952 53, the same question as to whether hydrogenated groundnut oil was raised and decided against the appellant by the sales tax authorities and the High Court. The appellant then applied for a certificate of fitness under article 133(1) of the Constitution, but the High Court dismissed the petition on September 4, 1959, stating: "The judgment sought to 175 be appealed against is one of affirmance. We do not think that it involves any substantial question of law . . . nor do we regard this as a fit case for appeal to the Supreme Court. " On November 23, 1959, applications for review were filed under 0. 47, r. 1, of the Code of Civil Procedure but they were dismissed. The appellant then applied for special leave under article 136 of the Constitution against the orders dismissing the applications for review and leave was granted after notice to the respondent. When the appeal came on for hearing in the Supreme Court, the respondent raised a preliminary objection that the special leave granted to the appellant should be revoked. The grounds for revoking the special leave were not urged by the respondent at the time of the hearing of the applications under article 136, nor were they set out in the statement of case filed by the respondent under O.XVIII of the Supreme Court Rules, 1950. Held (i) that where notice is given to the respondent before the hearing of the application for grant of special leave, no objection to the maintainability of the appeal or to the granting of special leave would be permitted to be urged at any stage after the grant of it, except possibly where the ground urged happens to arise subsequent to the grant of leave or where it could not be ascertained by the respondent at that date notwithstanding the exercise of due care. (ii) that the statement in the order dated September 4, 1959, that the case did not involve any substantial question of law,was an "error apparent on the face of the record" within the meaning of 0. 47, r. 1, of the Code of Civil Procedure inasmuch as this was a case where without any elaborate argument one could point to the error and say that here was a substantial point of law which stared in the face.

On November 16, 1949, the respondent was convicted under sections 38o and II4 of the Indian Penal Code. On October 5, 1957, the Deputy Commissioner of Police, Bombay, acting under section 57(1) of the Bombay Police Act passed an order externing him from the limits of Greater Bombay. Later he was prosecuted and convicted under section 142 of the Bombay Police Act by the Presidency Magistrate for returning to the area from which he was externed. On an application for revision the High Court acquitted the respondent upholding his contention that section 57 of the Bombay Police Act was not retrospective and was not applicable unless the conviction on which the externment was based took place after the Act came into force. On appeal by the appellant with the special leave of this Court it was 27 Held, that though statutes must ordinarily be interpreted prospectively unless the language makes them retrospective, either expressly or by necessary implication, and penal statutes creating new offences are always prospective, penal statutes creating disabilities though ordinarily interpreted prospectively are sometimes interpreted retrospectively when the intention is not to punish but to protect the public from undesirable persons whose past conduct is made the basis of future action. Midland Ry. Co. vs Pye, IO C.B. (N.S.) 179, Rex vs Birth whistle, (1889) 58 L.J. (N.S.) M.C. 158, Queen vs Vine, [1875] IO Q.B. 195, Ex Parte Pratt, , Bourke vs Nutt, [1898] I Q.B. 725, Ganesan vs A.K. Joscelyne, A.I.R. 1957 Cal. 33, Taher Saifuddin vs Tyebbhai Moosaji, A.I.R. 1953 Bom. 183, The Queen vs Inhabitants of St. Mary Whitechapel, ; : ; and Rex vs Austin, , considered and applied. Section 57 of the Bombay Police Act did not create a new offence but was designed to protect the public from the activities of undesirable persons convicted of particular offences and enabled the authorities to take note of their activities in order to put them outside the areas of their activities for preventing any repetition of such activities in the future. The verb " has been " as used in section 57 meant " shall have been Legislation which takes note of a convicted offender 's antecedents for restraining him from his acts cannot be said to be applied retrospectively as long as the action taken against him is after the Act comes into force. The Act in question was thus not applied retrospectively but prospectively. An externment order must be bona fide and must relate to a conviction which is sufficiently proximate in time.

ivil Appeal No. 34 of 1958. Appeal by special leave from the order dated July 6, 1956, of the Calcutta High Court in appeal to the section C. No. 32 of 1955. N. C. Chatterjee and D. N. Mukherjee, for the appellants. Syamdas Bhattacharya and section N. Mukherjee, for the respondents. March 29. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. The short question of law which arises in this appeal is whether the Calcutta High Court had jurisdiction to extend the time for 645 furnishing security for costs of the respondents under 0. 45, r. 7, of the Code of Civil Procedure. The Calcutta High Court has held that it had no jurisdiction to extend time as prayed for by the appellants, and so the certificate already granted by it to the appellants to appeal to this Court against its own decree has been cancelled. The order canceling the said certificate has given rise to this appeal by special leave; and so the only question which we are ca. led upon to consider is one of construing 0. 45, r. 7, of the Code as well as 0. XII, r. 3, of the Supreme Court Rules. The relevant facts leading to the present controversy are not in dispute. The appellants had instituted a suit (No. 73 of 1944) in the First Additional Court of the Subordinate Judge of 24 Parganas against the six respondents. In this suit they claimed a declaration of title to the immovable property in question and prayed for recovery of possession of the said property together with mesne profits. The learned trial judge decreed the suit on March 20, 1948. Two appeals were then filed against the said decree by two sets of respondents (Appeals Nos. 111 of 1948 and 135 of 1948). Of these two appeals Appeal No. 135 of 1948 was dismissed but Appeal No. III of 1948 was partly allowed and the decree passed in favour of the appellants granting possession and mesne profits to the appellants against respondent 3 was set aside. Thereupon the appellants applied for and obtained a certificate from the Calcutta High Court to enable them to appeal to this Court. The decree under appeal was one of reversal and the valuation of the subject matter of the dispute both in the trial court and in the intended appeal before this Court exceeded the statutory limit prescribed in that behalf and so the appellants 'were in fact entitled to a certificate under article 133 (1)(a) of the Constitution. Accordingly a certificate was issued on May 18, 1956. The last date for the deposit of the security amount of Rs. 2,500 and the printing cost of Rs. 1,184 was June 29, 1956. According to the appellants owing to circumstances over which they had no control they could not deposit 646 he said two amounts on the due date. Consequently in July 4, 1956, they filed an application before the High Court praying that the requisite amounts tendered by them be accepted after condoning the delay made by them in the payment of the said amounts. This application was rejected on the ground that according to the uniform current of decisions in the said Court it had no jurisdiction to extend the time for depositing the amount of security. It is against this order that the appellants have come to this Court by special leave. O. 45, r. 7, of the Code occurs in the Chapter dealing with appeals to the Supreme Court, and it deals with the security and deposit which are required to be furnished and made on grant of certificate to a party intending to prefer an appeal to this Court. 0. 45, r. 7(l)(a), provides that where the certificate is granted the applicant shall, within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date, furnish security in cash or in Government Securities for the costs of the respondent. The word "within ninety days or such further period not exceeding sixty days" which occur in the first part of the rule have been added by Act 26 of 1920 in substitution for the words "six months" which were originally enacted in the said rule. It is common ground, and indeed it is not disputed, that prior to the amendment made in 1920 High Courts had jurisdiction to extend time for furnishing security for cogent and satisfactory reasons. In Burjore and Bhawani Pershad vs Mussumat Bhagana (1) the Privy Council had held, agreeing with the view taken by the Full Bench of the Calcutta High Court that the words in section 602 of the Code of 1877 (Act X of 1877), in regard to extending time for giving security in appeal were directive only and there was jurisdiction in the High Court to grant extension of time for cogent reason. In other words, the time of six months prescribed by the (1) [1883] L.R. 11 I.A. 7. 647 statute could not be departed from without cogent reason. As a result of this decision under the provisions of 0. 45, r. 7, as they stood until the amending ' Act 26 of 1920 was passed, all the High Courts consistently exercised their jurisdiction in the matter of furnishing securities and extended time where they were satisfied that there was a proper and valid reason to do so. The question which arises for our decision is whether by the amendment made in 1920 this position has been altered. There can be no doubt that the object of the amendment was to expedite the final decision of the appeals which were taken before the Privy Council, and so the restrictive words have now been introduced whereby the period prescribed by the first part of the rule can. not be extended beyond 150 days; but, does the use of these restrictive words indicate that there is no jurisdiction in the High Courts to extend the period for a sufficient cause ? Having regard to the fact that even before the amendment the period of six months had been indicated it seems somewhat difficult to hold that by restricting the period to 150 days by the use of the restrictive words the Legislature had intended to take away the preexisting jurisdiction of the High Courts to extend the period for a reasonable cause. The jurisdiction to enlarge the period for a good cause shown could not have been intended to be taken away by implication merely by the use of the restrictive clause introduced in the amendment. Besides, it is significant that even after the amendment there is no specific provision which provides for the effect of failure to comply with 0. 45, r. 7. Rule 8 deals with cases where security has been furnished and deposit made, and it provides that on the security being furnished and deposit made the Court shall declare the appeal admitted, give notice thereof to the respondent, transmit to the Supreme Court the record, as therein provided, and give to either party one or more authenticated copies as specified. There is no rule which prescribes the consequence of non compliance with the order made under r. 7. Failure to make this provision is not without significance because r. 11 648 expressly provides for the effect of failure to comply with the order made under r. 10. In other words, where the Court makes an order calling upon the appellant to furnish within a time to be fixed by it other and sufficient security, or to make within like time the required payment, and the appellant fails to comply with the said order, r. 11 expressly provides that on such failure of the appellant the proceeding shall be stayed and the appeal shall not proceed without an order in that behalf of the Supreme Court and in the meantime execution of the decree appealed from shall not be stayed. It would thus be seen that where the Legislature intended that failure to comply with a specific order should lead to the consequence of a specific result it has made an appropriate provision in that behalf, and so failure to make any such provision in regard to the consequence of non compliance with the order made under r. 7 may suggest that the jurisdiction of the Court to extend time was not intended to be taken away. Since it is open to the Court to extend time, the Legislature may have thought that it should be left to the discretion of the Court to decide whether the failure to comply with its order under r. 7 should be condoned and the period extended for furnishing security, or whether the default should not be condoned and the certificate should therefore be cancelled. In our opinion, therefore, reading 0. 45, r. 7, as amended along with the other relevant provisions of the said Order it would be difficult to hold that the High Court has no jurisdiction to extend time for furnishing security under the said rule. High Courts had jurisdiction to extend time prior to the amendment of 1920 and the amendment of 1920 has made no difference in that behalf. There is another statutory provision which leads to the same conclusion, and that is 0. XII, r. 3, of the Supreme Court Rules framed by this Court in exercise of its rule making powers under article 145 of the Constitution. Rule 3 reads thus: "Where an appellant, having obtained a certificate from the High Court, fails to furnish the security or make the deposit required, that Court 649 may, on its own motion or on application in that behalf made by the respondent, cancel the certificate, and may give such directions as to the costs of the ' appeal and the security entered into by the appellant as it shall think fit or make such further or other order as the justice of the case requires. " This rule corresponds exactly to r. 9 of the Privy Council Rules. On a fair construction of this rule there appears to be no doubt that if a party having obtained a certificate from the High Court fails to furnish security or to make the required deposit it is open to the High Court to adopt either of two courses; it may cancel the certificate and may give directions as to the costs of the appeal and the security entered into by the appellant or it may make such further or other order as the justice of the case may require; and that clearly suggests that the High Court has jurisdiction to consider the question as to whether the justice of the case requires that the certificate already granted should not be cancelled and further time should be given to the party to furnish the security or to make the required deposit. The last clause of r. 3 refers to such further or other order as the justice of the case requires, and that must necessarily mean an order other than, and different from, the order canceling the certificate. It is true that the intention behind this rule might have been differently and better expressed but the object of the rule is plain and unambiguous and its construction presents no difficulty whatever. Failure to furnish the security or to make the deposit in time does not inevitably and in every case lead to the cancellation of the certificate. Despite the said failure some further or other order according to the justice of the case may still be passed by the Court in its discretion, and that, in our opinion, must mean an order condoning the default and granting further time to furnish the security or to make the required deposit. If this be the true position about the effect of 0. XII, r. 3, of the Supreme Court Rules it would follow that the High Courts would have jurisdiction to extend time for furnishing security even 82 650 if r. 7 of 0. 45 after its amendment in 1920 had taken away the said jurisdiction. Section 112 of the Code expressly provides that nothing contained in the Code shall be deemed, inter alia, to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court or their conduct before that Court. Therefore, if 0. xII, r. 3, expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security or to make the deposit in a, proper case that provision would not be interfered with by r. 7 of 0. 45. That is how, apart from the provisions of r. 7 of 0. 45, we reach the conclusion that the Calcutta High Court had jurisdiction to extend time for furnishing the security in the present case. However, as we have already held the amendment of r. 7 of O. 45 does not really take away the preexisting jurisdiction of the High Courts to extend time and so there is complete harmony between the said rule and 0. XII, r. 3, of the Supreme Court Rules. On this question there appears to be consensus of judicial opinion in the decisions of all the High Courts in India except the Calcutta High Court which for some years past has struck a note of dissent. It is unnecessary to deal with a catena of decisions on which Mr. Chatterjee relied in support of his contentions. It would be enough merely to mention them. It appears that in some High Courts the present question was referred to a Full Bench and the decisions of the Full Bench have negatived the view which appears to have been taken by the Division Benches in the said High Courts on the earlier occasions that the High Courts had no jurisdiction to extend time (Vide: Nilkanth Balwant Natu & Ors. V. Shri Satchidanand Vidya Narsinha Bharati & Ors. (1) (Full Bench); Bishnath Singh & Ors. vs Balwant Rao Naik Kalia & Ors. (Full Bench); Gulam Hussain vs Mansurbeg & Ors. (Full Bench); Lachmeshwar Prasad Shukul vs Girdhari Lal Chaudhuri (4) (Full Bench); Ghulam Rasul V. Ghulam Qutabud din (5) (Full Bench); Thota Pitchaiah (1) Bom. (3) I.L.R. (2) I.L.R. [1939] All. 549. (4) (1040) I.L.R. 19 Pat. (5) Lah. 447. 651 & Or8. 'V. M. Vedanta Narasimhacharyulu & Ors. (1) (Full Bench); and Ismail Piperdi vs Momin Bi Bi & Ors. (2) (Full Bench). Even in Calcutta it was held by the Calcutta High Court by a Full Bench in Roy Jotindranath Chowdhury & Ors. vs Rai Prasanna Kumar Banerjee Bahadur & Ors. (3) that the High Court had power to extend time as provided by section 602 of the Code for depositing the estimated cost of translating, transcribing, indexing and transmitting to the Privy Council the records of the case under appeal, but it was added that the Court should not extend time without some cogent reason. In support of this conclusion the High Court relied upon the decision of the Privy Council in the case of Burjore and Bhawani Pershad (4). The same view was expressed by the said High Court in Harendra Lal Choudhry vs Sm. Hari Dasi Debei (5) where it was held that High Court had power to extend the time for depositing costs in Court but it ought not to do so without some cogent reasons. In reaching this conclusion the Court followed its earlier decision in the case of Roy Jyotindranath Chowdhury (3). It, however, appears that in Raj Kumar Govind Narayan Singh & Ors. V. Shamlal Singh & Ors.(6) Chief Justice Rankin and Ghose, J., took a contrary view and held that there was no jurisdiction to extend time for furnishing the security under 0. 45, r. 7, as amended in 1920. With respect, the question does not appear to have been fully argued before the Court, for the judgment does not discuss the question of construing the relevant provisions of 0. 45, r. 7 or of r. 9, of the Privy Council Rules, and indeed the earlier decisions of the Court on that point do not appear to have been cited either. Even so, this decision was subsequently followed and that led to a consistent practice in the said High Court on which the learned judges have relied in rejecting the appellant 's application for extension of time in the present case. In this connection it may be relevant. to note that when this question was raised before the (1) I.L.R. [1956] Andhra 55. (3) (5) (2) (4) (1883) L.R. 111 I. A. 7. (6) 652 Calcutta High Court again in Akimuddin Chowdhury vs Fateh Chand Mahesri & Ors. (1) Chief Justice Derbyshire was referred to the Full Bench decision of the Bombay High Court in Nilkanth Balwant Natu (2) in support of the argument that there was a jurisdiction to extend time for furnishing security, but he observed that though he had great respect for the said Full Bench decision there was a contrary decision of the Calcutta High Court in the case of Raj Kumar Govind Narayan Singh( ') and so he was bound to follow the said decision and conform to the practice prevailing in the Calcutta High Court. In our opinion, the practice prevailing in the Calcutta High Court since the decision of Chief Justice Rankin in the case of Raj Kumar Govind Narayan Singh (3) is not justified either by the provisions of 0. 45, r. 7, of the Code or 0. XII, r. 3, of the Supreme Court Rules. We must accordingly hold that the High Court was in error in holding that it had no jurisdiction to entertain the application made by the appellants to extend time for furnishing the security. On the view which it took the High Court naturally did not examine the merits of the appellants ' case that there were sufficient and cogent reasons for condoning the delay. We would therefore allow the appeal, set aside the order passed by the High Court and remit the matter to that Court for disposal of the appellants ' application in accordance with law. In the circumstances of this case there would be no order as to costs. Appeal, allowed. (1) [1939]44 C.W.N. 920. (2) Bom.

On an application made by the appellant, the Calcutta High Court granted a certificate on May 18, 1956, enabling him to appeal to the Supreme Court against the judgment and decree of the High Court. Under 0. 45, r. 7(1)(a), of the Code of Civil Procedure, 1908, the appellant had to deposit the security amount for costs of the respondent within ninety days or such further period, not exceeding sixty days, as the court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever was the later date. Being unable to deposit 644 the amount on the due date, the appellant filed an application on July 4, 1956, before the High Court praying that the amount tendered by him be accepted after condoning the delay, but the High Court rejected it on the ground that according to the uniform current of decisions of that Court it had no jurisdiction to extend the time for depositing the amount. Held, that reading 0. 45" r. 7, of the Code of Civil Procedure, 1908, along with the other relevant provisions Of the said Order, a High Court has jurisdiction to extend time for furnishing security under the rule, and that the decisions of the Calcutta High Court to the contrary are erroneous. Order XII, r. 3, of the Supreme Court Rules, 1950, expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security in a proper case. Raja Kumar Govind Narayan Singh and others vs Shamlal Singh and others, 1 and Akimuddin Chowdhury vs Fateh Chand Mahesri & others, , disap proved. Roy Jyotindranath Chowdhury & Ors. vs Rai Prasanna Kumar Banerjee Bahadur, (1906) 11 C.W.N. I 104, Harendra Lal Choudhry vs Sm. Hari Dasi Debei, , Nilkanth Balwant Natu & Ors. vs Shri Satchidanand Vidya Narsinha Bharati & Ors., Bom. 430, Bishnath Singh & Ors. vs Balwant Rao Naik Kalia & Ors., I.L.R. [1939] All 549, Ismail Piperdi vs Momin BiBi & Ors, , Lachmeshway Prasad Shukul vs Girdhari Lal Choudhuri, Pat. 123, Ghulam Rasul vs Ghulam Qutabud din, (1942) I.L.R.23 Lah.447, Gulam Hussain vs Mansurbeg & Ors., I.L.R. and Thota Pitchaiah Andhra 55, approved.

The respondent manufactures cigarettes at its factory upon which Excise Duty is levied by the Assistant Collector of Central Excise, Calcutta Division. The rates varied according to the provisions of Finance Act, 1951, and 1956 and the Additional Duty of Excise (Goods of Special Importance) Act, 1957. The Company was required to furnish quarterly consolidated price lists and the particulars of cigarettes to be cleared were furnished by the Company as required by Rule 9 of the Central Excise Rules. For facilitating collection of duty, the Company maintained a large sum of money in a Current Account with the Central Excise authorities, who used to debit this account for the duty leviable on each stock of cigarettes allowed to be removed. The Company used, to furnish its quarterly price lists to the Collector ,on forms containing nine columns and until July 1957, so long as this form was used by the Company, no difficulty was experienced in checking prices. But after this column was dropped from the new form of six, columns, the Excise authorities encountered some difficulty in valuing the cigarettes for levying Excise Duty. They therefore, changed the basis of assessment from the Distributors selling price to the wholesale cash selling price at which stockists or agents were selling the same in the open market. The authorities informed the Company of this change of basis on 5 11 58 by letter, which also asked the Company to furnish its price lists immediately for determining the correct assessable value of its cigarettes. Two days thereafter, the authorities served a notice upon the Company demanding payment of Rs. 1,67,072,40 P. as Basic Central Excise Duty and Rs. 74,574,85 P. as Additional Central Excise Duty on ground of short levy for a certain brand of cigarettes cleared from Company 's Factory between 10th August 1958, After another five days, the authorities sent another notice demanding more than Rs. 6 lakhs as Basic Central Excise Duty and more than Rs. 2 lakhs as Additional Central Excise Duty. On the following day, the authorities sent a third notice under Rule 10 A of the Central Excise Rules, demanding more than Rs. 40,000/as Central Excise Duty and more than Rs. 16,000/ as Additional Duty. The Company challenged these notices by a writ before the High Court. , The High Court quashed the notices on the ground that the Company had not been given an opportunity of being heard. No appeal was filed by the other side against this decision, but when the case went back to the Collector, he issued P. fresh notice on 24 4 1960. By this notice, for certain periods, a sum of more than Rs. 10 lakhs was levied as Basic Central Excise Duty and a total sum of more than Rs. 3 lakhs as Additional Duty, and this amount had been provisionally debited in the Company 's Account on the basis of the price list supplied by the Company and the Company was informed that if it desired a personal hearing, it 823 can appear before the authorities to make the final assessment in accordance with law. The Company challenged the validity of this notice dated 24 4 60 on the ground that the notice was barred by limitation and was 'issued without jurisdiction, so that no proceedings could be taken. The learned single Judge, as well as the Divisional Bench of the High Court allowed the petition on the ground that the notice was barred by time under Rule 10 of the Central Excise Rules because the notice was held to be fully covered by Rule 10 and by no other rule. The case was certified under article 33(a), (b) and (d) for an appeal to this Court. Rule 10 of the Central Excise Rules provides that when duties or charges have been short levied through inadvertence or misconstruction etc., the person chargeable with the duty so short levied, shall pay the deficiency or pay the amount paid to him in excess on written demand by the proper officer within three months from the date on which the duty or charge is paid or adjusted in the owner 's account, if any, or from the date of making the refund. It was contended that this was substantially a provisional assessment covered by Rule 10 B. The Division Bench of the High Court, however, refused to agree that the impugned notice of 24 460 fell under Rule, 10 A. The reason given for this refusal was that such a case was neither taken before the learned single Judge, nor could be found in the grounds, of the appeal despite the fact that the appellant had ample opportunity of amending its Memorandum of Appeal. Allowing the appeal. HELD : (i.) That the High Court erroneously refused to consider whether the impugned notice fell under Rule 10 A. The applicability of Rule 10 A was very much in issue because the Collector in his affidavit denied that Rule 10 A of the said rules had any application to the facts of the case. (ii) It cannot be accepted that merely because the current account kept under Rule 9 indicated that an accounting had taken place, there was necessarily a legally valid or complete levy. The making of debit entries was only on ground of collection of the tax. Even if payment or actual collection of tax could be spoken of as a defective levy, it was only provisional and not fINal. It could only be closed or invested with validity after carrying out the obligation to make an assessment that really determines whether the levy is short or complete. It is not a faCtual or presumed levy which could prove an assessment. This has to be done by proof of the actual steps taken which constitute assessment. [836D] A mechanical adjustment, or settlement of accounts by making debit entries was gone through in the present case, but it cannot be said that any such adjustment is assessment which is a quasi judicial process and involves due application of mind to the facts, as well as to the requirements of law. Rule 10 and 10 A seems to be so widely worded as to cover any inadvertence error etc.; whereas Rule 10 A would appear to cover any deficiency in duty if the duty has for any reason, been short levied, except that it would be outside the purview of Rule 10 A if its collection is expressly provided or by any rule. Both the rules as they stood at the relevant time, deal with collection, and not with assessment. In N. B. Sanjana 's case ; this Court indicated that Rule 10 A which was residual. in character, would be inapplicable if a case fell within a specified category of cases mentioned in Rule 10. It was pointed out in Sanjana 's case that the reason for the addition 824 of the new rule 10 A was a decision of the Nagpur (Chotabhai Jethabhai 's case; A.I.R. 1952 Nagpur 139), so that a fresh demand may be made on a basis altered by law. The excise authorities had made a fresh demand under Rule 10 A, the validity of which was challenged, but it was upheld by a Full Bench decision of the High Court of Nagpur. This Court, in Chotabhai Jethabhai 's case also rejected the assessee 's claim that Rule 10 A was inapplicable after pointing out that the new rule was specifically designed for the enforcement of the demand like the present one. [836F 837E] (iii)The present case, therefore, falls within the residuary clause of unforeseen cases from the provisions of section 4 of the Act, read with Rule 10 A, an implied power to carry out or complete an assessment, not specifically provided for by the rules, can be inferred. Therefore, it is wrong to hold that the case falls under Rule 10 and not under Rule 10 A.

The appellants were the tenants of the respondents landlord. The suit filed by the respondents for eviction of the appellants under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 on the ground of default in repayment of rent was decreed in spite of the fact that the appellants deposited all the rents before the date of filing of the suit, the future rent in advance before the first date of hearing and also the interest and cost of the suit amounting to Rs. 23 on the first date of hearing. These deposits were made under Section 31 of the Punjab Relief of Indebtedness Act, 1934 and under Section 13 of the Rent Act before the Rent Controller cum Senior Sub Judge respectively. The suit was decreed on the ground that the said deposit was not a valid tender and the appellants could not claim any protection under the proviso to Section 13(2) of the Rent Act but the Appellate Court set aside the judgment of the Trial Court on the ground of the validity of the notice. The High Court in revision following the decision of this Court in Yasodai Ammal 's case set aside the appellate order and decreed the suit. Both the Appellate Court and the High Court never went into the question of deposit of rent so as to protect the tenant from eviction. Hence the appeal by obtaining the special leave from this Court Allowing the appeal, the Court ^ HELD (1) The main object of the Relief of Indebtedness Act, 1934 is to give relief to debtors and protect them from paying excessive rates of interest. From the plain and unambiguous language of Section 31, it cannot be spelt out that the Act applies only to a particular type of debtors and creditors. Section 31 has been couched in the widest possible terms and the legislature has advisedly not used the word debtor in Section 31 so as to confine the provisions of the section only to the 'debtor ' defined in the said Act and to no other but the legislature intended to embrace within its fold all persons owing money including tenants who are in arrears. Thus, under Section 31 of the Indebtedness Act any person who owes money is entitled to deposit in court the money owed either in full or in part in tho name of his creditor. It is clear, therefore, that Section 31 would apply even to a tenant who owes money to his landlord by way of rent due and he can also enjoy the facility provided by Section 31 of the Indebtedness Act. [481 C, 482 E G] 477 (2) The combined effect of the provisions of Section 31 of the Indebtedness Act and the Notification No. 1562 Cr. 47/9224, dated 14th April, 1947 published in the Punjab Gazette Extraordinary and the Notification made under the Punjab Courts Act, 1918 by which a Senior Sub Judge was to function as a Controller under the Rent Act is that Section 31 is constituted a statutory agency or machinery for receiving all debts and paying the same to the creditors. This is the dominant purpose and the avowed object of Section 31 of the Indebtedness Act. It thus follows as a logical consequence that any deposit made by a tenant under Section 31 would have to be treated as a deposit under the Rent Act to the credit of the landlord and which will be available to him for payment whenever he likes to withdraw. [482 H, 483 H 484 B] Kuldip Singh vs The State of Punjab & Anr. , followed. Mam Chand vs Chhotu Ram & Ors I.L.R. 1964 Punjab 626 and Khushi Ram vs Shanti Rani & Ors. 1964 Punjab Law Reports 755, approved. Vidya Prachar Trust vs Pandit Basarat Ram , overruled. (3) To give a narrow meaning to the words "person who owes money" used in Section 31 of the indebtedness Act would be to unduly restrict the scope of Section 31 which is contrary to the intention of the legislature. Furthermore, under the proviso to Section 13(2) of the East Punjab Urban Rent Restriction Act, 1949, the tenant was required to deposit interest also in order to get protection of the proviso. Hence, the tenant was a debtor with a sort of a statutory agreement to pay interest and would therefore squarely fall within the definition of Section 31 of the Indebtedness Act. [485 G 486 A] (4) There is absolutely no bar either under Section 6 or under Section 19 of the East Punjab Urban Rent Restriction Act, 1949 to receive future rent. Section 6 of the Act merely provides that where a fair rent is fixed by the Controller it would not be open to the landlord to receive any amount in advance in excess of the fair rent. Section 6, therefore, clearly deals with a situation where a fair rent under Section 6 is fixed by the Controller on the application of the parties. Neither in the present case nor in Vidya Prachar Trust 's case was there any allegation that a fair rent had been fixed by the Controller. So long as fair rent is not fixed by the Controller the parties are free to agree to payment of any rent and neither Section 6 nor Section 19 would be attracted to such a case. Moreover, even if the tenant were to deposit future rent it is always open to the landlord not to withdraw the future rent but confine himself to taking out only the rent that is in arrears which will not at all violate any provision of the Rent Act. Therefore, a deposit by a tenant under Section 31 of the Indebtedness Act was a valid tender. [486D, G H; 487A C] (5) Like all other Rent Control Acts in the other States in the country, the Rent Act is a piece of social legislation which seeks to strike a just balance between the rights of the landlords and the requirements of the tenants. The Act prevents the landlord from taking the extreme step of evicting the tenant merely on the ground of default in payment of rent if the landlord is guaranteed entire payment of the entire arrears of rent, cost and interest. Thus the proviso to Section 13(2) of the East Punjab Urban Rent Restriction Act, 1949 affords a real and sanctified protection to the tenant which should not be nullified by giving a hypertechnical or literal 478 construction to the language of the proviso which instead of advancing the object of the Act may result in its frustration. [487F G] (6) The statutory provisions of the proviso which is meant to give special protection to the tenant, if property and meaningfully construed, lead to the inescapable conclusion that the rent together with cost and interest, etc., should be paid on or before the date of the first hearing and once this is done, there would be sufficient compliance with the conditions mentioned in the proviso. In the instant case all the necessary conditions of the proviso of Section 13(2) of the Rent Act were fully complied with. [487H 488 A, B] Sheo Narain v Sher Singh ; , applied. (7) Once it is held that the deposit under section 31 of the Indebtedness Act is a valid tender having been deposited on or before the first date of hearing, the exact point of time when the deposit is made is wholly irrelevant and will not amount to non compliance of the conditions of the proviso to Section 13(2) of the Rent Act. In the instant case, the deposit of the arrears of rent had been made prior to the filing of ejectment petition and the interest and cost were raid on the first date of hearing. [489B C]

The appellant, who was acting as Director of Public Instruction, challenged an order posting him as Director of State Institute of Education by a writ petition in the High Court, on various grounds. It was dismissed. He applied for grant of certificate to appeal to this Court under articles 132(1) and 133(1)(a) to (c) of the Constitution. The High Court held that article 133(1)(a) did not apply, did not consider whether articles 133 (1) (c) and 132 were applicable, doubted whether article 133 (1) (b) would apply, but ultimately granted a certificate under Art, 133(1). On the question whether the certificate was properly granted. HELD : As the High Court has not properly considered the application for grant of certificate,under articles 132(1) and 133(1)(b) and (c), it will have to be remanded to be considered by the High Court afresh. The High Court, in the fresh order to be passed, must clearly indicate ,under what particular Article or clause of the Article the certificate is granted [733 A C] Saya Narain Prasad vs State of Bihar ; and M/s Krishna Gyanodaya Sugar Ltd. vs The State of Bihar and Ors. A.I. R. , followed.

The respondents addressed two letters to the Chief Justice of the Calcutta High Court regarding mysterious death of two young boys living in Barrackpore area near Calcutta alleging, inter alia, that the local police was not conducting the investigation into the unnatural death of the two boys fairly and properly and was trying to make it a case of suicide and requested the High Court to order a thorough investigation into the incident by an independent machinery which would command confidence and be acceptable to the local police. A single Judge of the High Court, before whom the letters were placed, treated the two letters as a formal petition and, without giving notice directed issue of a rule to the State of West Bengal and other authorities to show cause why a writ in the nature of mandamus may not be issued directing investigation in accordance with law to be conducted over the unnatural death of the two boys. In the meanwhile the Judge also appointed Deputy Inspector General, Central Bureau of Investigation to make as inquiry and report to the High Court as to how 257 the two boys met their death. The appellants preferred an appeal against the said order before the Division Bench which also confirmed the order of the Single Judge with the modification that the DIG, CBI will act as a special officer. Hence this appeal. The appellants contended (i) that the order of the Single Judge was vitiated having been made in violation of rules of natural justice; (ii) that the order was also bad as the learned Single Judge had not cared to inform himself as to the stage of investigation and if there was any lacuna therein and he proceeded to act on certain assumptions for which there was no basis or foundation, (iii) that since there had been no breach of duty, the court had no jurisdiction to interfere with the investigation which, under the law, was vested in the police authorities and therefore the directions given by the Single Judge and upheld with certain modifications by the Division Bench were not proper. Allowing the appeal, ^ HELD: 1. It is clear from the order passed by the Learned Single Judge that no bearing was afforded to the State Government or its officers when direction to appoint the special officer in whom power of inquiry was to be vested was made. There was no basis at that stage to assume that the contents of the letters as also the facts stated in the columns of the newspaper had not been contradicted. It was the State Government or its officers who alone could have authoritatively indicated the facts showing whether the allegations contained in the letters or the newspaper report were true and if so to what extent or how the investigation was being carried on and what stage it had reached so as to enable the court to come to a prima facie authorities were not discharging properly their statutory obligation to carry out an investigation But when no notice was given to the State Government and no opportunity was offered to them, it is difficult to see how an ex parte order could be made on such an assumption. If the facts stated in the letter or the writ petition are credible and there is such urgency that the ends of justice might be defeated by not making an ex parte order or giving of notice without ex parte order might lead to aggrevation of oppression or exploitation or removal or elimination of evidence, the court would certainly be justified in making an ex parte order. But in the instant case, there were no such circumstances at all and the court could have very well issued notice to the respondents and tried to find out whether there wag any necessity directing the appointment of DIG, CBI to act as a Special officer and requiring the police authorities of the State to extend all possible help as may be required by him. [270C H: 271A] (2) The appointment of a Special officer with a direction to enquire into the commission of an offence can only be on the basis that there has not been a proper investigation. There is a well defined hierarchical administrative set up of the police in the State of West Benga1 as in all other States and lo have created 3 new channel of inquiry or investigation is likely to create an impression that everything is not well with the statutory agency 258 and it is likely to cast a stigma on the regular police hierarchy. In the facts and circumstances of the instant case and the nature of the order made in view, the direction to appoint a Special officer with powers to inquire should not have been made until the appellants has been given a hearing and the court had the papers of investigation laid before it for being prima facie satisfied that the investigation had either not been proper or adequate. [271C E] (3) Under the Code of Criminal Procedure which lays down the procedure to be followed when report of an offence is lodged with the police, the power to investigate is vested in the police. The procedure laid down in the Code is clear and definite. Investigation is a matter for the police under the scheme of the Code. Judicial opinion seems to be settled and there are several authorities of the Supreme Court where interference by the Court into police investigation has not been approved. There is however. residuary jurisdiction left in the court to give directions to the investigating agency when it is satisfied that the requirements of the law are not being complied with and investigation is not being conducted properly or with due haste and promptitude. The court has to be alive to the fact that the scheme of the law is that the investigation has been entrusted to the police and it is ordinarily not subject to the normal supervisory power of the court. But in the instant case, the material placed before the court did not justify an exception to be made to the rule indicated by the Supreme Court and the appointment of a Special officer was not called for at this state. [262D; 270B; 278H; 279A C] State of West Bengal vs S.N. Basak S.N. Sharma vs Bipin Kumar Tiwari & Ors.[1970] 3 S.C.R 946. State of Bihar v J. A. C. Saldanha & Ors. [1980] 2 S.C R. 16 followed. kings Emperor vs Khwaja Nazir Ahmed [1944] L.R. 71 referred to. Bhagwant Singh vs Commissioner of Police, Delhi ; held not applicable. (4) 'Inquiry ' and 'investigation ' are statutory terms defined in the Code. In the instant case whatever name the work entrusted to the Special officer be called, there can be no dispute that he was required to ascertain facts from the witnesses and documents, if any, in regard to the death of the two boys. This process necessarily involved a fact finding inquiry by ordinarily tapping the same sources as the investigating agency was expected to contact. This, therefore, necessarily involved a duplicate investigation. In view of the fact that there were two separate channels Placed in active charge of investigation to be conducted contemporaneously, confusion was bound to occur and working of the two channels at a time was likely to prejudice the proper investigation making the exposing of the truth buried under mystery more difficult. Carrying this duplicate process was not likely to serve the cause of justice nor help in achieving the object for which it had been set up. The Special officer was not to exercise the power under s.5 of the , and if be wanted any real 259 assistance in the matter of investigation, it had to be carried through the police officers of the State Administration. This was likely to bring in futher confusion in as much as the witnesses were likely to be contacted by the same police office on more than one occasion once in the course of investigation conducted by the police and again to meet the requirements of the Special officer. We are sure that the High Court never intended the cause of justice to be prejudiced and the serious attempt to find out the truth to be aborted. [273D F; H; 274A C] (5) While section 6 of the would require the consent of the Slate Government before jurisdiction under s.5 of that Act is exercised by officer of that establishment, when a direction is given by the court in an appropriate case, consent envisaged under s.6 of the Act would not be a condition precedent to compliance with the court 's direction Section 6 of the Act does not apply when the court C gives a direction to the C.B.I. to conduct an investigation. In this view, the impugned order of the learned single judge and the appellate decision of the Division Bench appointing DIG, CBI to inquire into the matter would not be open to attack for want of sanction under s.6 of the Act. [269B D] (6) ln the instant case, the Court allowed the appeal and set aside the order of appointment of the Special officer and observed that the investigation carried out has not been quite satisfactory. However, in the facts and circumstances of the case, there is no necessity to take away the investigation from the hands of the State Police machinery which is the statutory agency. The court pointed out that though there are occasions when death remains a mystery in spite of the best of efforts, it hopes that with an honest attempt and since efforts made, the truth would be found out and the police authorities of the State would be in a position to give a creditable account of themselves. The court also suggested that the Director General of Police, West Bengal, will appoint a competent supervisory officer from the higher ranks of the State police with expertise in investigation to supervise the investigation in the present case. [279D; 282E H]

This appeal raised a short question as to the interpretation of sub section (4)(a) of section 4 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 ("the Bombay Rent Act"). The appellants were the sub tenants of the respondent No. 1 Firm in respect of the premises called Gala No. 4 in a godown. Respondent No. 1 Firm were the tenants of the said godown, having taken a lease of the building from the Bombay Port Trust. The appellants were in occupation of the said Gala under written agreements executed from time to time for one year each. The last such agreement expired on 19th October, 1971. The respondent No. 1 Firm served a notice on the appellants on 13th January, 1972 to hand over possession of the said gala on the ground that the period of lease had expired. By notice dated February 3, 1972, the respondent No. 1 Firm terminated the tenancy of appellants and then filed a suit in the City Civil Court against the appellants to recover possession of the premises in dispute inter alia on the ground that the period of lease had expired. The appellants took up the contention that they were not liable to be evicted as they were entitled to protection under the provisions of the Bombay Rent Act. The City Civil Court decreed the suit. On appeal by the appellants, the High Court (Single Judge,) holding that the notice of termination of tenancy dated 3rd February, 1972, was a valid notice and the provisions of the Bombay Rent Act did not apply to the premises in question, upheld the decree of eviction passed by the City Civil Court. Letters Patent appeal against this judgment was dismissed by a Division Bench of the High Court. The appellants then moved this Court for relief by special leave. Dismissing the appeal, the Court, 907 ^ HELD: The only submission made by the appellants before the Court was that the said premises, viz, Gala No. 4, were entitled to the protection of the provisions of the Bombay Rent Act and the respondent No. 1 Firm was not entitled to a decree for eviction as no grounds for eviction under the Act had been made out. [910G] The question raised was whether the protection of the sub section (4)(a) of section 4 of the Bombay Rent Act was available to the sub lessee in a building leased by the lessee from the Government or a local authority or put up by a lessee of the land belonging to the Government or a local authority but not under any building lease or pursuant to any obligation imposed on the lessee to put up a building. In this case, the entire building in which the premises in question, namely, Gala No. 4 were situated, belonged to the Bombay Port Trust. It was nowhere contended at any stage by the appellants that the building in which the said premises were situated was put up by the respondent No. 1 Firm. The Court was, therefore, not directly concerned with the position of a sub lessee in a building put up by a lessee of the land taken from the Government or a local authority without being under any obligation to do so. [913D F] A plain reading of sub section (1) of section 4 of the Bombay Rent Act makes it clear that the provisions of the Bombay Rent Act are not applicable to premises belonging to the Government or a local authority. Sub section (4)(a) only takes out from the scope of the exemption conferred by section 4(1) "a building erected on any land held by any person from the Government or a local authority under an agreement, lease, licence or other grant, although having regard to the provisions of such agreement, lease, licence or grant the building so erected may belong or continue to belong to the Government or the local authority, as the case may be". If this provision were to be as including any building put up or erected on land held by any person from the Government or a local authority, the result would be that such protection would be available even against the Government or a local authority and the provision of sub section (1) of section 4 may be rendered largely nugatory. The provisions of sub section (4)(a) were never intended to take away the immunity conferred upon the premises belonging to the Government or a local authority, and if the provisions of section 4(4)(a) were to be construed as urged by the appellants, this immunity would be rendered practically nugatory. A plain reading of the provisions of sub section (4)(a) in the context clearly shows that there is no intention therein to take a building put up by the Government or a local authority from the scope of the exemption conferred by sub section (1) of section 908 4. The language of sub section (4)(a) and sub section (1) of section 4 of the Bombay Rent Act, read together, suggests that it was only in respect of a building put up by the lessee on the Government land or the land belonging to a local authority under a building agreement that the sub lessees were taken out of the exemption contained in sub section (1) of section 4 and allowed the benefit of the provisions of the Bombay Rent Act. It was significant that the exemption granted under the earlier part of sub section (1) of section 4 is in respect of the premises and not in respect of the relationship. In order to confer the protection of the provisions of the Bombay Rent Act on the sub lessees occupying the premises in any building erected on the government land or the land belonging to a local authority irrespective of the question who has put up the building as against the lessees of the land but without affecting the immunity conferred on the government or local authorities as contemplated by sub section (1) of section 4 of the Bombay Rent Act, the Court would have to practically rewrite the provisions of section 4, and it was not open to the Court to do that. The argument of the appellants, therefore, could not be accepted. The learned Judge of the High Court was right in coming to the conclusion that the premises in question were not entitled to the benefit of the provisions of the Bombay Rent Act. [914A H;915A] The decision of this Court in Kanji Manji vs The Trustees of the Port of Bombay, [1962] Suppl. 3 S.C.R. 461 cited by the appellants was of no assistance to the case before the Court, and the decision of this Court in Maneklal and Sons vs Trustees of Port of Bombay and Others, cited by the appellants, far from supporting the submission of the appellants, militated against it. [916D] There was no merit in the appeal and it must fail. Taking the facts and circumstances of the case into consideration, the Court directed that the appellants would not be evicted from the premises in question until December 31, 1988. [916E] The Court observed that if the intention of the legislature was that the protection should be given to the sub lessee against the lessee in a building taken on lease by the lessee from the government or a local authority, it was for the legislature concerned to make appropriate amendments in the Bombay Rent Act and it was not open for the Court to re write the provisions of sub section (4)(a) of section 4 of the Bombay Rent Act on the ground of any such intention as suggested by Dr. Chitale counsel for the appellants. [916F] 909 Bhatia Co operative Housing Society Ltd. vs D.C. Patel, ; Kanji Manji vs The Trustees of the Port of Bombay, [1962] Suppl. 3 S.C.R. 461; Maneklal and Sons vs Trustees of Port of Bombay and Others, and Ram Bhagwandas vs Municipal Corporation of the City of Bombay, , referred to.

The respondent sought special leave to appeal to the High Court under section 417(3) of the Code of Criminal Procedure, 1898 against the acquittal of the petitioner by the trial court. The application was made beyond the period of limitation but the High Court condoned the delay under section 5 of the . In their application for special leave to appeal to this Court the petitioners contended that the time limit of 60 days prescribed under section 417(4) was mandatory and as such the High Court had no jurisdiction to extend the time limit by resort to section 5 of the . Dismissing the special leave petitions, ^ HELD: (1) The order granting special leave was not an order outside the power of the High Court. In a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the , section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of 60 days prescribed in sub section (4) of section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. [265B C] (2) Since under the section 5 is specifically made applicable by section 29(2) it could be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of section 5 that it stands displaced. Section 29(2) (b) of the Limitation Act, 1908 specifically excluded the applicability of section 5 while section 29(2) of the 1963 Act in a clear and unambiguous terms provides for applicability of section 5. [264F, E] Kaushalya Rani vs Gopal Singh ; , explained.

% The appellant No. 1, J.K. Cotton Spinning and Weaving Mills Limited, has a composite mill wherein it manufactures fabrics of different types, for which yarn is obtained at an intermediate stage, and the yarn is processed in an integrated process in the said composite mill for weaving the same into fabrics. The Central Board of Excise issued a Circular dated September 24, 1980, purporting to interpret the rules 9 and 49 of the Central Excise Rules, 1944 (the Rules) and directing the subordinate excise authorities to levy and collect excise duty in accordance therewith. The Board further directed vide the said Circular that the use of the goods in the manufacture of another commodity even within the place premises specified in this behalf by the Central Excise officers in terms of the powers conferred under rule 9 of the Rules, would attract duty. As the implementation of the Circular worked to the prejudice of the appellants, they filed a writ petition in the High Court, challenging the validity of the Circular. During the pendency of the said writ petition, the Central Government issued a Notification dated February 20, 1982, amending the rules 9 and 49 of the Rules, with section 51 of the Finance Act, 1982, providing that the amendments in the rules 9 and 49 shall be deemed to have, and to have always had, the effect with retrospective effect from the date on which the Rules came into force i.e. February 28, 1944. Upon the amendments of the rules 9 and 49, with retrospective effect of the amendments, the appellants amended their writ petition above said to challenge the constitutional validity of Section 51 of the Finance Act abovementioned and the amendments to the rules 9 and 49. 701 The High Court allowed the writ petition in part. It held (i) that section 51 and the rules 9 and 49 as amended were valid, (ii) the retrospective effect allowed by section 51 would be subject to the provisions of sections 11A and 11B of the (the Act), (iii) the yarn produced at an intermediate stage in the mill of the appellants and subjected to the integrated process of weaving into fabrics, would be liable to payment of excise duty in view of the amended provisions of the rules 9 and 49, but the sized yarn actually put into the integrated process would not again attract excise duty. The appellants then filed this appeal (Civil Appeal No. 297 of 1983) before this Court by certificate. Dismissing the Appeal, the Court, ^ HELD: The decisions of various High Courts cited, deal with the rules 9 and 49 of the Central Excise Rules, 1944, as they stood before they were amended by the Government Notification dated February 20, 1982. In this case, what is involved is the interpretation of the said two rules after their amendment and the constitutional validity of the rules as amended. The amendments to the rules 9 and 49 are quite legal and valid. Section 51 of the Finance Act, 1982, giving retrospective effect to the said amendments is also legal and valid. The apprehension of the appellants that the amendments to rules 9 and 49 having been made retrospective from the date the rules were framed, that is, February 28, 1944, the appellants may be called upon to pay enormous amounts of duty in respect of the intermediate goods which have come into existence and again consumed in the integrated process of manufacture of another commodity, is not right. In view of section 11A of the Finance Act, there is no cause for such an apprehension. Under Section 11A(1), the excise authorities cannot recover duties not levied or not paid or short levied or short paid or erroneously refunded beyond the period of six months, the proviso to section 11A not being applicable in the present case. Thus though section 51 has given retrospective effect to the amendments of rules 9 and 49, it must be subject to the provision of section 11A of the Act. Section 51 does not contain any non obstante clause, nor does it refer to the provision of section 11A, and it is difficult to hold that section 51 overrides the provision of section 11A. [712F H; 714D F] The appellants are liable to pay excise duty on the yarn obtained at an intermediate stage and, thereafter, further processed in an integrated process for weaving the same into fabrics. Although it has been alleged that the yarn is obtained at an intermediate stage of an 702 integrated process of manufacture of fabrics, it appears to be not so. After the yarn is produced, it is sized, and thereafter, subjected to a process of weaving the same into fabrics. As the Court has held that the commodity which is obtained at an intermediate stage of an integrated process of manufacture of another commodity, is liable to the payment of excise duty, the yarn that is produced by the appellants is also liable to payment of excise duty. [720G H: 721A B] The High Court has rightly held that the appellants are not liable to pay excise duty on the yarn after it is sized for the purpose of weaving the same into fabrics. No distinction can be made between unsized yarn and sized yarn, for the unsized yarn when converted into sized yarn does not lose its character as yarn. The judgment of the High Court affirmed. [721B C] In view of the decision of the Court in the Civil Appeal No. 297 of 1983, the Civil Appeals Nos. 2658 and 4168 of 1983 also dismissed. [721D] The Province of Madras vs Boddu Paidanna and Sons AIR ; Caltex oil Refining (India) Ltd. vs Union of India & Ors. , Delhi Cloth and General Mills Co. Ltd. vs Joint Secretary, Government of India, ; Modi Carpets Ltd. vs Union of India, ; Synthetics and Chemicals Ltd. Bombay vs Government of India, , Devi Dayal Electronics and Wires Ltd. vs Union of India, [1982] E.L.T. 33; Oudh Sugar Mills Ltd. vs Union of India, [1980] E.L.T. 327, Oudh Sugar Mills Ltd. vs Union of India, [1982] E.L.T. 927, Maneklal Harilal Spg. & Mfg. Co. Ltd. vs Union of India, ; Nirlon Synthetic Fibres & Chemicals Ltd. vs Shri R.K. Audim; Assistant Collector & Ors. In Misc. 491 of 1964, unreported judgment of Bombay High Court, dated April 30, 1970, Jawaharmal vs State of Rajasthan & Ors., ; ; Rai Ramkrishna and Ors. vs State of Bihar, ; , K.P. Verghese vs The Income Tax officer, Ernakulam; , and Senior Electric Inspector and Ors. vs Laxmi Narayan Chopra, ; , referred to.

82 of 1959. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. 519 section K. Kapur, Jai Gopal Chagnani, K. K. Jain and B. P. Maheshwari, for the petitioners. C. K. Daphtary, Solicitor General of India, G. C. Kasliwal, Advocate General, Rajasthan and D. Gupta, ' for the respondent. March 22. The Judgment of the Court was delivered by HIDAYATULLAH, J. This is a petition under article 32 of the Constitution. The petitioners, who are seven in number, challenge as unconstitutional and ultra vires certain provisions of the Rajasthan Passengers and Goods Taxation Act, 1959, the Rajasthan Passengers and Goods Taxation Rules, 1959, and a notification issued under R. 8. For brevity, we will refer to them in this judgment, as the Act, the Rules and the notification respectively. The first petitioner is a registered firm, petitioners Nos. 2 to 6 are the partners of that firm, and petitioner No. 7 is the General Manager of the firm. Petitioner No. 7 holds a public carrier permit for the whole of Rajasthan in his individual name. The petitioners also hold 59 stage carriage permits from the Regional Transport Authority, Jodhpur, for diverse routes over roads which have different kinds of surfaces, some being sandy or katcha and others, metalled., tarred, etc. The Act was passed in 1959 for levying a tax on passengers and goods carried by road in motor vehicles. The power to enact the Act purports to be derived from Entry No. 56 of the State List in Sch. VII to the Constitution, which reads: "156. Taxes on goods and passengers carried by road or on inland waterways. " The Act received the assent of the President on April 27, 19.59, and was published in the Rajasthan Gazette on April 30, 1959. The same day, the Rules framed in exercise of the powers conferred by section 21 of the Act were also published, and the notification was also issued. The Rules were subsequently amended, and we are concerned with the Rules, as amended. Before we deal with the case further, it is convenient to see how the Act is constructed and what the 520 Rules and the notification provide. The Act, which consists of 21, sections, came into force in the whole of the State of Rajasthan on May 1, 1959. The Act contains the usual provisions to be found in all taxing statutes about appeals, revision, offences and penalties, power to compound offences, recovery of tax as arrears of land revenue, bar of proceedings, exclusion of the jurisdiction of Civil Courts, refunds and power to make rules, to which detailed reference need not be made. ' We are only concerned with the imposition of the tax and the mode of its recovery, and will refer to those provisions which are relevant. Section 3 is the charging section, and section 4 deals with the method of collection of the tax. Since these sections are the main subject of attack, we quote them in full: "3. Levy of tax. (1) There ' shall be levied, charged and paid to the State Government, a tax on all fares and freights in respect of all passengers carried and goods transported by motor vehicles 'at such rate not exceeding one eighth of the value of the fare or freight, in the case of cemented, tarred, asphalted, metalled, gravel and kankar roads and not exceeding one twelfth of such value in other cases, as may be notified by the State Government from time to time subject to a minimum of one naya paisa in any one case, the amount of tax being calculated to the nearest nays paisa. Explanation. When passengers are carried and goods are transported by a motor vehicle, and no fare or freight has been charged, the tax shall be levied and paid as if such passengers were carried or goods transported at the normal rate prevalent on the route. (2) Where any fare or freight charged is a lump sum paid by a person on account of a season ticket or as subscription or contribution for any privilege, right or facility which is combined. with the right of such person being carried or his goods transported by a motor vehicle without any further payment or at a reduced charge, the tax shall be levied on the amount of such lump sum or on such amount as appears to the prescribed authority to be fair and 521 equitable having regard to the fare or freight fixed by a competent authority under the Motor Vehicles Act, 1939(Central Act 4 of 1939). (3) Where passengers are carried or goods transported by a motor vehicle from any place outside the State to any place within the State, or from any place within the State to any place outside the State, the tax shall be payable in respect of the distance covered within the State at the rate laid down in sub section (1) and shall be calculated on such amount as distance covered in the State bears to the total distance of the journey: Provided that where passengers are carried or goods transported by a motor vehicle from any place within the State to any other place within the State through the intervening territory of another State, the tax shall be levied on the full amount of the fare or freight payable for the entire journey and the owner shall issue a single ticket or receipt, as the case may be, accordingly. (4) Method of collection of tax. The tax shall be collected by the owner of the motor vehicle and paid to the State Government in the prescribed manner: Provided that in case of public carriers the State Government may accept a lump sum in lieu of the tax chargeable on freight in the manner prescribed: Provided further that in case of contract carriages the State Government may accept a lump sum in lieu of the tax chargeable on fare in the manner prescribed. " Section 5 lays down the method of levy, and enjoins the issuance of a ticket showing the tax paid of a receipt showing the freight charged and the tax paid. It includes a proviso that in the case of passengers the tax becomes chargeable only on entry in the State, if the journey began outside the State. Section 6 requires the owner to keep accounts and to submit periodic returns and provides for levy of penal ties in case of failure, which penalties are laid down in section 8. Section 7 deals with the appointment of taxing authorities, and a. 12 gives the power of entry the 522 officers into vehicles, garages, and offices for inspection and checking. Section 10 enjoins upon the owners the duty of furnishing tables of fares and freights, time tables,, etc. Section 9 enables the State Government to grant to any person or class of persons,. exemption from all or any of the provisions of the Act. The Rules prescribe those matters which are required under the Act to be prescribed by the Rules. It is not necessary to refer to them beyond Rules 8 and 8 A, which have been challenged. Rule 8(i) prescribes the method of payment of tax by means of stamps to be affixed to the tickets, and the second proviso is to the following effect: "Provided further that the tax payable under the Act on fare by the owner of a motor cycle, rickshaw or a motor cab shall be paid to the State Government in lump sum, of which the amount shall be fixed by the State Government from time to time by, Notification in this behalf." Rule 8(ii) then provides: "The owner of a public carrier shall pay to the State Government a lump sum in lieu of the tax ,chargeable under the Act on freight and the amount of such lump sum shall be fixed by the State Government from time to time by Notification in this behalf. " Rule 8 A, in so far as material to this case, reads: "Provisions for payment of lump sum in lieu of tax on fare or freight.((1) In cases covered by the second. proviso to sub rule (1) of rule 8 and by subrule (ii) of that rule the lump sum fixed by the State Government as payable in lieu of the tax on fare or freight, as the case may be, shall be deposited in cash into a Government Treasury or a Sub Treasury in equal quarterly instalments payable within 15 days from the 31st day of March, the 30th day of June, the 30th day of September and the 31st day of December every year; and in case of such vehicles not registered in Rajasthan to the incharge of the check post or barrier at the time of their entry into the State of Rajasthan or to the officer of the Excise and Taxation Department nearest to the point of 523 entry into the State and having jurisdiction over that area: Provided that Provided that (a) for the quarter ending on the 30th day of June ', 1959, such payment shall be made for the months of May and June, 1959, at the rate of 1/12 of the said sum for each month, (b) where the owner has not plied his vehicle for the entire quarter immediately preceding any of the aforesaid dates a proportionate decrease in the amount due for that quarter may be made, (c) if the owner ceases to ply his vehicle on a date preceding any of the aforesaid dates, the proportionate amount for the quarter shall be paid by him immediately upon such cessation, and (d) where the owner has not plied his vehicle for a continuous period of not less than three months and produces a certificate from the authority competent under the Rajasthan Motor Vehicles Taxation Act, 1951, or the rules made thereunder to the effect that he has been refunded the tax for that period under section 7 of the said Act, no amount by way of tax under the Act shall be payable for such period. (2) The owner shall inform the Assessing Authority as soon as his vehicle goes out of use. When the vehicle is again put on the road, an intimation to that effect shall be sent to the Assessing Authority immediately. " The notification which was issued under R. 8 prescribing lump sum rates, is as follows: "Jaipur, April 30, 1959 No. F. 15(5) E & T/59. In pursuance of rule 8 of the Rajasthan Passengers and Goods Taxation Rules, 1959, the Government of Rajasthan hereby directs that the tax chargeable on fare or freight in respect of the following cl. was of Motor Vehicles, shall be paid in lump sum of which the amount is mentioned opposite each such class: 3. Public carriers (Goods Vehicles): (a) Holding a general permit under the , to use all roads in Rajasthan; 524 (i) Load carrying capacity below 5 Tons Rs. 420 per annum. (ii) Load carrying capacity 5 Tons and above . Rs. 540 per annum. (b) Holding a permit under the , for plying within the limits of any region or on fixed routes in any one region: (i)Load carrying capacity below 5 Tons . Rs. 360 per annum. (ii) Load carrying capacity 5 Tons and above Rs. 480 per annum. "4 Public Carriers (Goods Vehicles) plying on hire on temporary permits under the . (b) Public Carriers (Goods Vehicles) d(i) Load carrying capacity below 5 Tons . Rs. 2 for each calendar day (ii) Load carrying capacity 5 Tons and above. Rs. 4 for each calendar day This shall have effect on and from the 1st May, 1959" The petitioners challenged the Act, the Rules and the notification from many angles, in the petition; but at the hearing before us, the arguments were more restrained. The main objection to the Act is that the tax has not been laid upon "passengers and goods" as authorised by Entry No. 56 but upon "fares and freights", which are different entities, and in support of the contention that there is a difference, reference is made to Entry No. 89 of the Union List, where power is conferred to tax "fares and freights". It is submitted that a tax on fares and freights being a different tax, cannot be levied under the Entry, and thus, the tax is without authority of law. The Act and the Rules are further challenged on the grounds that they are repugnant to articles 301 and 304 as being a restriction upon inter State trade, commerce and intercourse, to article 19 as involving an unreasonable restriction upon the business of the petitioners, and also to article 14 as discriminating between this mode of transport and the Railways. The Act is further challenged on the ground that it concedes to the State 525 Government the power to fix the amount of lump sum payment without guidance. The rates and lump sum payment are challenged because they involve discrimination between routes involving roads of different surfaces. Rules 8 and 8 A and the notification are challenged as, it is submitted, they go beyond the Act by making the lump sum payment compulsory, even though under the Act it is optional, and involve payment of tax even when no passengers or goods are transported. Lastly, it is said that by making tax payable even though the route between two intra State point passes outside the State, the Act has an extra territorial operation which is ultra vires the legislature. The first and the 'Main contention is that the Act in the guise of taxing passengers and goods, taxes really the income of the petitioners, or, at any rate, fares and freights, and is thus unconstitutional. It is argued that the tax is borne by the operators because of competition with the Railways. That the petitioners are required to bear the tax themselves to stand competition with the Railways is a matter of policy ', which the petitioners follow and is not something which flows inevitably from the provisions of the Act. We do not agree that the Act, in its pith, and substance, lays the tax upon income and not upon passengers and goods. Section 3, in terms, speaks of the charge of the tax "in respect of all passengers carried and goods transported by motor vehicles", and though the measure of the tax is furnished by the amount of fare and freight charged. it does not cease to be a tax on passengers and goods. The Explanation to section 3(1) lays down that even if passengers are carried or goods transported without the charge of fare or freight,, the ' tax has to be paid as if fare or freight has been charged. This clearly shows that the incidence of the tax is upon passengers and goods, though the amount of the. tax is measured by the fares and freights. A similar argument was not accepted by the Madras High Court in Mathurai vs State of Madras (1), and the same view was expressed in Atma Ram Budhia vs State of Bihar (2). In our opinion, the charging section does (1) I.L.R. (2) (1952) I.L.R 31 Pat 493 (S.B.). 526 not go outside Entry No. 56. The tax is still on passengers and goods, though what it is to be is deter,mined by the amount of fare or freight. It is clear that if the tax were laid on passengers irrespective of the distance travelled by them, it would lead to anomalies if the amount charged be the same in every case. This if; additionally clear in the case of goods where the weight, bulk or nature of the goods may be different, and a scale of payments must inevitably be devised. Though the tax is laid on passengers and goods, the amount varies in the case of passengers according to the distance travelled, and in the case of goods because the freight must necessarily differ on account of weight, bulk and nature of the goods transported. The tax, however, is still a tax on passengers and goods, and the argument that it is not so, is not sound. We are also of opinion that no inter State trade, commerce or intercourse is affected. The tax is for purposes of State, and falls upon passengers and goods carried by motor vehicles within the State. No doubt, it falls upon passengers and goods proceeding to or from an extra State point but it is limited only to the fare and freight proportionate to the route within the State. For this purpose, there is an elaborate scheme in R. 8 A to avoid a charge of tax on that portion of the route which lies outside the State. There is thus no tax on fares and freights attributable to routes outside the State except in one instance which is contemplated by the proviso to sub a. (3) of section 3 and to which reference will be made separately. In our opinion, the levy of tax cannot be said to offend articles 301 and 304 of the Constitution. The next contention is that the Act allows an option to pay a lump sum in lieu of the tax, but Rules 8 and 8 A and the notification make the payment of the lump sum compulsory. There is no doubt that ex facie the two provisos to a. 4 employ language which is permissive, while the two Rules and the notification employ language which is imperative. The two provisos to a. 4 are enabling, and thereby authorise the State Government to accept a lump sum payment in lieu of the tax actually chargeable. The 527 word "accept" shows that the election to pay a lump sum is with the taxpayer, who may choose one method of payment or the other. The inclusion of such a provision is designed to promote easy observance of the Act and also its easy enforcement. The charge of tax calculated on fares and freights involves difficulties for the operators who have to keep accounts and also difficulties for the taxing authorities, who have to maintain constant checks and inspections. The lump sum payment is a convenient mode by which an amount is payable per year irrespective of whether the tax would be more or less if calculated on actual fares or freights. The operators pay the lump sum if they so choose, to avoid having to maintain accounts and to file returns, and the Government accepts it to avoid having to inspect accounts and to keep a check. The rates which are prescribed for a lump sum payment per year are for those who wish to avail of them. It is, however, contended that though the section creates an option, the Rules and the notification make the payment compulsory, and attention is drawn to the word "shall" used both in Rules 8 and 8 A and the notification, whereas the words in the two provisos to section 4 are "may accept". The word "shall" is ordinarily mandatory, but it is sometimes not so interpreted if the context or the intention otherwise demands. In re Lord Thurlow Ex Parte Official Receiver (1), Lord Esher, M. R., observed at p. 729 that "the word 'shall ' is not always obligatory. It may be directory", and Lopes L. J., at p. 731 added: "It is clear that the word 'shall ' is not always used in a mandatory sense. There is abundance of authority to the contrary in cases where it has been held to be directory only". It was thus that the word 'shall ' was held to be directory only, in that case, by Coutts Trotter, C. J., in Manikkam Pattar vs Nanchappa Chettiar (2), by Russel, J., in In re Rustom (3), by Venkatasubba Rao, J., (1) (1895) 1 Q.B 724 (2) (3) Bom. 396; 528 in Jethaji Peraji Firm vs Krishnayya (1) and by the Judicial Committee in Burjore and Bhavani Pershad V. Mussumat Bhagana (2). Now, Rules 8 and 8 A and the notification only lay down what lump sum payment has to be in each case, if a lump sum is being paid. The mandatory language is used to fix peremptorily the amount of the lump sum. Rules 8 and 8 A and the notification cannot be said to overreach the section to which they are subordinate and from which they must take their colour and meaning. If the Act creates an option, it cannot be negatived by the Rules. The Act and the Rules must be read harmoniously, and reading them so, it is plain that the apparent mandatory language of the Rules and the notification still retains the permissive character of the section, but only lays down what the amount of the lump sum must be, if lump sum payment is made in lieu of payment of the tax calculated on actual fares and freights. If the two Rules and the notification are read in this way, the mandatory language is limited to the prescribing of the lump sum rates. In our opinion, the two Rules and the notification are not void and contradictory of the Act. It is contended that the power to fix lump sums in lieu of tax has been conferred upon Government without guidance, and is, therefore, unconstitutional. It is also urged that the levy of a lump sum leads to the result that even if passengers or goods are not transported, the tax is still payable. These arguments, in our opinion, cannot be accepted. The learned Advocate General pointed out that the lump sum rates work out at a very low figure, the minimum being less than Re. 1/ per day and the maximum, Rs. 1.50 nP. per day. The rates are no doubt very reasonable, but this hardly meets the argument of the petitioners. There are, however, good reasons for upholding the fixation of lump sums. The payment of the lump sum is not obligatory, and a person can elect to pay tax calculated on actual fares and freights. (1) (1929) I.L.R , 656. (2) (1883) L.R. 11 I. A. 7. 529 The fares and freights are fixed by competent authority under the , and that takes into account the average earnings, and the lump sum is fixed as an average of what tax would be realised if calculated on actual fares and freights. There is no compulsion for any operator to elect to pay a lump sum if he does not choose to do so. Nor is the argument that there may be. vacant periods when no passengers or goods are transported but the tax is payable, is of any force, because there may be days when the business done might result in tax in excess of the lump sum payable. The lump sum figure is based on averages, and cannot be impeached by reference to a possibility that on some days no business might be done. The next contention that there is discrimination between road transport and rail transport is also without force. The entry in the State List is limited to a tax on passengers and goods transported by road or inland waterways. , The comparison with Railways is not admissible, because tax on railway fares and freights is a Union subject, and is not available to the State Legislature. There is thus a clear classification made by the Constitution itself. No discrimination between operators of public motor vehicles using roads has been pointed out, and all operators are equally affected by the, Act. Some manner of support for the argument was sought from section 9, where the State Government is empowered to grant exemption from the Act by general or specific order to any person or class of persons. But we were informed that no exemption has been granted except to hospitals or charities. It is next urged that the imposition of a higher rate of tax for cemented, tarred, asphalted, metalled, gravel and kankar roads than that for other roads discriminates between operator, This argument overlooks the very object and purpose of a tax. As is well known, taxes are burdens or charges imposed by legislative power upon persons or property to raise money for public purposes. The power to tax is thus 67 530 indispensable to any good government, and the imposition of the tax is justified on the assumption of a return in the shape of conveniences. If this be the true import of a tax, it is but natural that taxes will be graded according as they involve more or less of such conveniences. They will be heavy in case of roads requiring greater expenditure to construct and to maintain, than in case of roads not requiring such expenditure. All operators using the better kind of roads have to pay the heavier tax, and there is no discrimination between them as a class. Discrimination can only be found if it exists between persons who are comparable, and there is no comparison between persons using the better kind of roads and those who use roads which are not so good. It is the cost of construction and maintenance which makes the difference in the tax, and no case of discrimination can be said to be made out. The last contention is that the proviso to sub section (3) of section 3 is extra territorial in nature, because it makes the tax payable on fares and freights attributable to the territory of another State when the route passes through such territory, even though the journey starts and ends in Rajasthan. We were informed that now there are no such routes, but even otherwise, such portions must have been very short and negligible. No affidavit was sworn to show how many such routes were involved and what their extent was, and in view of lack of adequate averments, we must reject the contention. In the result, the petition fails, and is dismissed with costs. Petition dismissed.

The petitioners who were partners of a registered firm hold ing public carrier and stage carriage permits challenged the constutionality of certain provisions of the Rajasthan Passengers and Goods Taxation Act, 1959, the Rajasthan Passengers and Goods Taxation Rules, 959, and a notification issued under r. 8. The Act was passed for levying a tax on passengers and goods 518 carried by road in motor vehicles the power to enact being derived from Entry 56 of the State List in Sch. VII of the Constitution. Section 3(4) of the Act prescribed the method of collection of the tax and provided that the State Government may accept a lump sum in lieu of the tax chargeable". Rule 8(i) prescribed the method of payment and provided that the tax "shall be paid in lump sum" and the notification in question prescribed the rates of the tax. Held, that the incidence of the tax was upon "passengers and goods" and not upon income of the petitioners though the amount of the tax was measured by the fares and freights. The charging section, namely, section 3 did not go outside Entry 56. Mathurai vs State of Madras, I.L.R. , Alma Ram Budhia vs State of Bihar, Pat. 493, referred to. The tax did not offend articles 301 and 304 of the Constitution and no inter State trade, commerce or intercourse was affected by it. Although the tax fell upon passengers and goods proceeding to or from an extra State point, it was limited only to the fare and freight proportionate to the route within the State. The word "shall" is ordinarily mandatory but it is sometimes interpreted as directory, and in the present case the word "shall" used in rr. 8 and 8A and the notification should be interpreted as directory as section 4 of the Act from which the Rules and the notification derive their authority, creates an option by using the words "may accept". The Act, the Rules and the notification must be read harmoniously. The mandatory language was used to fix peremptorily the amount of the lump sum if paid in lieu of the tax. In Re Lord Thurlow Ex Parte Official Receiver, (1895) 1 Q.B. 724, Mannikam Patter vs Nanchappa Chettiar, (1928) M.W.N. 441, In re Rustom, 369, jethaji Peraji Firm v: Krishnayya, Mad. 648 and Burjore and Bhavant Pershad vs Mussumat Bhagana, (1883) L.R. II I.A. 7, followed. The lump sum figure was based on averages and could not be impeached by reference to a possibility that on some days no business might be done. Comparison with Railways which is a union subject was not admissible. There was no discrimination between operators of public motor vehicles using roads all of whom were affected by the Act, There could be no comparison between persons using better kind of roads and those using roads which were not so good. All operators using better kind of roads had to pay heavier tax, and there was no discrimination between them as a class.

Respondent No. 1 obtained a mortgage decree for Rs. 1,14,581/14/6 against one Rao Raja Inder Singh (the judgment debtor). The mortgage money was advanced under three mortgages, and the mortgaged properties consisted of Jagirs and some non Jagir immovable property. The latter property was sold in execution and Rs. 33,750/ paid to the decree holder in partial satisfaction of the decree. Then the decree holder filed an execution petition in the Court of the District Judge for the balance amount i.e. Rs. 99,965/3/6, praying for attachment of the amount of compensation and rehabilitation grant which would be paid to the judgment debtor on account of resumption of his Jagir. The judgmment debtor submitted two applications in which he claimed relief under sections 5 and 7 of the Rajasthan Jagirdars ' Debt Reduction Act. The decree holder, in his reply, to those petitions urged that the provisions relied in were ultra vires the Constitution of India, being in contravention of articles 14, 19 and 31 of the Constitution. Thereafter the decree holder moved a petition under article 228 of the Constitution before the High Court, praying that the execution case pending in the Court of the District Judge, be withdrawn from that court to the High Court. The High Court transferred the case to its file. By its judgment the High Court could held that apart from the later part of section 2(e) excluding certain debts and section 7 (2) of the Act, the rest of the Act was valid. The High Court granted a certificate under article 133(1)(c) of the Constitution to the State of Rajasthan to file an appeal to this Court. Hence the appeal: Held: (i) That the impugned part of section 2(e) infringes article 14 of the Constitution for the reason that no reasonable classification is disclosed for the purpose of sustaining the impugned part of section 2(e). It is now well settled that in order to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentiation which distinguishes persons or things that are to be put together from others left out of the group, and (2) that the differential must have a rational relationship to the object sought to be achieved by the statute in question. The said condition No. 2 above has clearly not been satisfied in this case. The object sought to be achieved by the impugned Act was to reduce the debts secured on the Jagir lands which had been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act. The fact that the debts are owed to a Government or local authority or other bodies mentioned in the impugned part of section (2) (e) has no rational relationship with the object sought to be achieved by the Act. Further, no intelligible principle underlies the exempted categories of debts. The reason why a debt advanced on behalf of a person by the Court of Wards is clubbed with a debt due to a State or a scheduled bank and why a debt due to a non scheduled bank is not excluded from the purview of the Act is not discernible. Manna Lal vs Collector of Jhalwar. ; , Nand Ram Chhotey Lai vs Kishore Raman Singh, A.I.R. (1962) All 521 and 905 Jamnalal Ramlal Kimtee vs Kishendas and State of Hyderabad, A.I.R. (1955) Hyd. 194, distinguished. (ii) Section 7(2) is valid as it imposes reasonable restrictions, in the interests of general public. on the rights of a secured creditor. This sub section has been designed with the object of rehabilitating a Jagirdar whose Jagir properties have been taken over by the State for a public purpose at a low valuation. If this provision was not made, the Jagirdar would find it diffcult to start life afresh because his future income and acquired properties would be liable to attachment and sale for the purpose of satisfying the demands of such creditors.

The State of Uttar Pradesh issued two notifications in 1953, by one of which the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, was extended to certain areas, in which, Pargana Agori which was owned by the respondent was situate, and by the other, it was directed that all " estates" in the area including the Pargana should vest in the State. The respondent challenged the notifications by a writ petition on the ground that the Pargana was not an estate within section 3 (8) of the Act. While the matter was pending in the High Court, the definition in section 3 (8) was amended by U.P. Act 14 of 1958, and while appeals were pending in this Court, by U.P. Act 1 of 1964, by which, the Pargana was deemed to be an "estate". The amendments had retrospective effect from 1st July 1952. The appellant State contended that Act 1 of 1964 could not be impugned because, the Pargana was an "estate ' either within article 3 1A(2) (a) or (iii). HELD : The forest land or waste land in the Pargana could not be deemed to be an estate within article 3 1A(2) (a) (iii) unless it was held or let for purposes ancillary to agriculture. But the entire Pargana is la grant in the nature of a jagir or inam, having been held by the respondent 's ancestor under sanads granting the land and the land revenue to him for services rendered to the British, and consequently, is an "estate, within article 31A(2) (a) (i) of the Constitution. [368 D, 370 G H; 371 F H] Thakur Amar Singhji vs State of Rajasthan [1955] 2 S.C.R. 303, followed. The acquisition of the Pargana was a necessary step in the implementation of agrarian reforms contemplated by article 31A. Therefore, U.P. Act 1 of 1964 can claim the protection of article 31A, and the two notifications must be upheld. [372 A C}

Disposing off the petition, making certain observations and expressing its inability to issue any directions, except awarding costs, the Court. ^ HELD: 1. Giving directions in a matter like this, where availability of resources has a material bearing, policy regarding priorities is involved, expertise is very much in issue is not prudent to issue any directions. Ordinarily the powers of the court to deal with a matter such as this, which prima facie appears to be wholly within the domain of the Executive must be examined. [723 H, 724 A] The Govt. have limitations, both of resources and capacity. Yet, it is hoped that the Government and the Administration would rise to the necessity of the occasion and take it as a challenge to improve this great public utility (Railways) in an effective way and with an adequate sense of urgency. If, necessary, it shall set up a high powered body to quickly handle the many faced problems standing in the way. [723 G H] 2. As the present case is a public interest litigation, the petitioner is entitled to consolidated costs of Rs. 5,000 recoverable from the Railway Ministry of the Union Government. [724 F G] 3. There is hardly any scope to doubt that the guarantees provided in Part III of the Constitution are Fundamental and it is the paramount obligation of the State to ensure availability of situations, circumstances, and environments in which every citizen can effectively exercise and enjoy these rights. The right to life has recently been held by the Supreme Court to connote not merely animal existence but to have a much wider meaning to include the finer graces of human civilization. If these rights of the citizens are to be ensured, 710 it is undoubtedly the obligation of the Union of India and its instrumentalities to improve the established means of communication in this country. [722 E G] 3.2. The Railways are a public utility service run on monopoly basis. Since it is a public utility, there is no justification to run it merely as a commercial venture with a view to making profits. It is not known if a monopoly based public utility should ever be a commercial venture geared to supply the general revenue of the State but there is no doubt that the common man 's mode of transport closely connected with the free play of his fundamental right should not be. [722 H, 723 A] 3.3. The Union Government should be free to collect the entire operational cost which would include the interest on the capital outlay out of the national exchequer. Small marginal profits cannot be ruled out. The massive operation will require a margin of adjustment and, therefore, marginal profits should be admissible. [723 B C] 3.4. On the other hand, it is of paramount importance that the services should be prompt. The quality of the service should improve. Travel comforts, facilities in running trains and quality of accommodation and availability thereof should be ensured. The Administration should remain always alive to the position that every bonafide passenger is a guest of the service. Ticketless travelling has to be totally wiped out. It is this class of passengers which is a menace to the system without any payment, these law breakers disturb the administration and genuine passengers. Stringent laws should be made and strictly enforced to free the Railways from this deep rooted evil Security both of the travelling public as also to the travelling citizens must be provided and this means that accidents have to be avoided, attack on the persons of the passengers and prying on their property has to stop. Scientific improvements made in other countries and suitable to the system in our country must be briskly adopted. The obligations cast by the Railways Act and the Rules under it must be complied with. [723 C F] 3.5. At the same time, no purpose is served by placing the blame at the doors of the Government of the day. All of us should have realism and condour Independence has been secured at great cost and sacrifice. It is every citizen 's obligation to maintain it and create an environment in which its fruits can be harvested and shared. [719 D E] 3.6 Freedom brings responsibility. There can be no rights without responsibilities. In our country unfortunately individual rights have received disproportionate emphasis without proper stress on corresponding social obligations and responsibilities. In a welfare State like ours the citizen is for ever encountering public officials at various levels, regulators and dispensers of social services and managers of State operated enterprises. It is of utmost importance that the encounters are as just and as free from arbitrariness as are the familiar encounters of the rights. What is, therefore, of paramount importance is that every citizen must get involved in the determined march to resurrect the society and subordinate his will and passion to the primordial necessity of order in 711 social life. If is only in a country of that order that the common man will have his voice heard. The dream can become a reality if every citizen becomes aware of his duty and before asking for enforcement of his right, volunteers to perform his obligation. [719 E F, 720 B C, D, 724 E]

A suit (No. 1262/53) Challenging the notification under Section 4 of the Land Acquisition Act dated 10 10 1952 issued by the former Government of Bombay and later another notification under Section 6 of the Act dated 14 8 1953 (issued during the pendency of the suit), notifying that the final plots Nos. 41. 42 and 43 were required for public purpose viz. State Transport was dismissed by the Trial Court on 28 1 1959. The first and the second appeals having failed, the respondents came up to this Court. This Court in its decision inter partes, Valji Bhai 's case struck down Section 6 notification on the ground that the acquisition being for the benefit of a Corporation, though for a public purpose was bad beeause no part of the compensation was to come out of the public revenue and the provisions of Part VII of the Act had not been complied with. After the bifurcation of the erstwhile State of Bombay, the land acquisition proceedings came within the cognizance of Gujarat State. The State by its letter dated 22 8 1966 decided to contribute towards compensation a sum of Re. 1/ which was subsequently raised to Rs. 500/ . The Government felt that as long time has elapsed since the earlier report under Section 5A was submitted by the Collector, a fresh enquiry should be made. Accordingly the Additional Special Land Acquisition Officer issued a notice dated 1 8 1966 intimating to the respondents that if they so desired they might submit their further objections on or before 16 8 1966. Complying with this notice, the respondents submitted further objections on 31 8 1966 and they were also given a personal hearing. After examining the enquiry report submitted by the enquiry officer the Government of Gujarat issued a notification under Section 6 on 10 10 1967. The respondents questioned the validity and legality of this notification in the writ petition filed by them on 14 2 1968 on the only ground that it was issued more than 15 years after the date of Section 4 notification. The High Court was of the opinion that if the power to make a declaration under Section 906 6 is exercised after an unreasonable delay from the date on which notification under Section 4 is issued such exercise of power would be invalid and it accordingly struck down the notification under Section 6 of the Act. Hence the two appeals one by the State of Gujarat and the other by the Gujarat State Road Transport Corporation. Allowing the appeals by certificate, the Court ^ HELD: 1. The impugned section 6 notification was issued within the prescribed period introduced by the 1967 Amendment Act and, therefore could not be struck down on the only ground that the power to issue second section 6 notification was exercised after an unreasonable and unexplained delay. Section 6 notification, dated 10th october 1967, therefore is valid and legal.[918G H, 919A] 2. A combined reading of the provisions contained in sub section (2) of Section 4 with the one contained in the proviso to sub section (1) of Section 6 introduced by the Land Acquisition (Amendment and Validation) Act, (Central Act 13 of 1967) with effect from 20 1 1967 would make it clear that the Government would be precluded from making a declaration under section 6 after the expiry of a period of three years from the date of issue of a notification under Section 4 which may be issued after the Amendment Act came into force. And in respect of those section 4 notifications which were issued prior to the commencement of the Ordinance i.e. 20 1 1967, any notification which is required to be issued under section 6 must be made within a period of two years whereafter as a necessary corollary all section 4 notifications issued prior to 20th January 1967 would stand exhausted and would not provide either a source of reservoir for issuing section 6 notification. Consequently the mischief sought to be set at naught by the High Court by reading by necessary implication in the scheme of sections 4, 5A, and 6 the concept of exercise of statutory power within a reasonable time has been statutorily remedied. The apprehensions of the High Court that if not checkmated by implying that such statutory power must be exercised within a reasonable time to curb arbitrary exercise of power to the detriment of a citizen have been taken note of by the legislature and fully met. Absence of any decided case on the subject of which High Court took note could not permit an inference as has been done by the High Court that in the absence of a decided case the legislature would not remedy the possible mischief. Legislature often does take note of a possible abuse of power by the executive and proceed to nip it in the bud by appropriate legislation and that has been done in this case. There is now no more possibility of a gap of more than three years from the date on which section 4 notification is issued, otherwise it would be invalid as being beyond the prescribed period. [916 G H, 917 A D] In the instant case, the notifications under section 4 was prior to the commeneement of the ordinance. Therefore, the provision contained in sub section (2) of section 4 of the 1967 Amendment Act would be directly attracted. The Government could, therefore, make a declaration within a period of two years from 20th January 1967. The Government has in fact issued the impugned notification under section 6 on 10th October 1967 i.e. within the period prescribed by the Statute. [917 E F] 907 3.When a period is prescuibed for exercise of power it manifests the legislative intention that the authority exercising the power within the prescribed time could not at least be accused of inaction or dithering and, therefore, such exercise of power could not be said to be bad or invalid on the only ground that there was unreasonable delay in the exercise of the power. The very prescription of time inheres a belief that the nature and quantum of power and the manner in which it is to be exercised would consume at least that much time which the statute prescribes as reasonable and, therefore, exercise of power within the time could not be negatived on the only ground of unreasonable delay. [917H, 918 A B] Therefore, in this case, there was no unreasonable delay in exercise of power and hence the exercise was neither bad nor invalid. [918B] 4. Once the legislature stepped in and prescribed a sort of limitation within which power to issue notification under section 6 could be exercised, it was not necessary to go in search of a further fetter on the power of the Government by raising the implication. [918F G] In this case, the High Court by implication read a fetter on the power of the Government to issue section 6 notification within a reasonable time after the issue of section 4 notification after observing that there was no express provision that such power ought to be exercised within a reasonable time. In raising this impliccation the High Court took into account the postulate that every statutory power must be exercised reasonably and a reasonable exercise of power implies its exercise within a reasonable time. Coupled with it two other factors were taken into consideration such as the effect of issuing a section 4 notification on the rights and obligations of the owner of the land whose land is proposed to be acquured; the right of the Government to unilaterally cancel section 4 notification in the event of fall in prices; history of legislation; and delayed issue of section 6 notification would deny adequate compensation to the owner. But by the time the High Court examined this matter the legislature had already introduced a provision by which the power to issue section 6 notification was to be exercised within the prescribed period of time. At that stage there hardly arose a question of a search of the fetter on the power of the Government ignoring to some extent the express statutory provision. [918C F] 5. In the case of death of a party to a proceeding who is joined in his capacity as Karta of an undivided Hnndu family, if the undivided Hindu family continues to be in existence the succeeding Karta can be substituted for the deceased Karta of the family and that would be sufficient compliance with Order XXII Rule 4 of C.P.C. [911D E] In the insant case an application made under Order XXII Rules 10 C.P.C. made after the prescribed period of limitation and in order to avoid seeking condonation of delay for setting aside abatement is not correct. [911E] [The Court, however, overruled the objection on this ground since the L.rs. have already been substituted].

The respondent bought new cars and chassis manufactured in Bombay and brought them by road. In the course of their journey from Bombay to Madras the vehicles passed through the territory of the State of Mysore for over 400 miles. The Road Transport Authorities of the State of Mysore demanded payment of road tax on the vehicles under section 3(2) of the Mysore Motor Vehicles Taxation Act, 1957 which provides that taxes are leviable on motor vehicles belonging to or in the possession or control of persons not ordinarily resident in the State of Mysore and kept in the State for periods shorter than a quarter but not exceeding thirty days. Allowing the respondent 's writ petition the High Court held that vehicles which passed through the State were not "kept" in the State within the meaning of section 3(2) of the Act and so were not taxable under it. In appeal to this court it was contended on behalf of the appellant that the vehicles passing through the territory of the State over a distance of 400 miles with halts on the way could be said to have been "kept" for use on loads in the State within the meaning of the section and were therefore taxable. Dismissing the appeal, ^ HELD : A vehicle in transit through the State of Mysore or even making necessary halt for short intervals during transit cannot be said to be a vehicle kept for use on roads in the State of Mysore. [6 B C] The word "kept", which has not been defined in the Act, has to be interpreted in its ordinary popular sense consistent with the context. In association with the use of the vehicle the word "kept" has an element of stationeries which is something different from a state of transit or a course of journey through the State. A mere state of running through or even halting of the vehicle in the course of the journey through the State for its outside destination, will not be sufficient to constitute "keeping" of that vehicle in the State within the meaning of section 3(2). [4 C E & 5 E] Dudley vs Holland , Biggs vs Mitchell ; referred to.

By an order dated May 25, 1954, the Supreme Court granted the petitioners in the case special leave to appeal against the judgment and order of the High Court at Calcutta. In accordance with the order, the petitioners furnished the security amounts directed to be deposited within the time specified in the order. The Registrar of the High Court did not issue any notice of admission of 'appeal to be served by the Appellant 's Solicitor on the Respondents as envisaged in rule 9 of Order XIII, S.C.R. Nor did the Appellant following the practice of the High Court, move that Court for It admission" of the appeal until January 11, 1955. The Respondents first moved the High Court complaining of default on the part of the appellants in due prosecution of the appeal and latter moved the Supreme Court for action under rule 13 of Order XIII of the Supreme Court Rules. The application in the High Court was therefore kept pending. Held: After the grant of special leave under article 136, the Registrar of the Supreme Court transmits, in accordance with the 244 provisions of rule 8 of Order XIII of the Supreme Court Rules, a certified copy of the Supreme Court 's order to the Court or tribunal appealed from, Rule 9 of Order XIII of the Supreme Court Rules enjoins upon the Court or tribunal appealed from to act, in the absence of any special directions in the order, in accordance with the provisions contained in Order XLV of the Civil Procedure Code, so far as they are applicable. Accordingly the Court or Tribunal to which the order is transmitted receives deposits on account of security for the Respondents ' costs, printing costs, and any other deposits if so ordered by the Supreme Court, and sets about preparing the record of the appeal for transmission to the Supreme Court. Therefore, action under rule 13 of Order XIII, S.C.R., for rescinding the order granting special leave cannot be initiated unless the Court or tribunal appealed from reports to the Supreme Court that the appellant has not been diligent in taking steps to enable that Court to carry out the directions, if any, contained in the order of the Supreme Court and to act in accordance with the provisions of Order XLV of the Civil Procedure Code so far as applicable to appeals under Article 136 of the Constitution. In view of rule 9 of Order XIII of the Supreme Court Rules, the application of Order XLV of the Code of Civil Procedure to appeals under Article 136 of the Constitution is restricted. The Court or tribunal appealed from, no doubt, has to carry out the directions contained in the order granting special leave, and to receive the security for the Respondents ' costs and other necessary deposits, but once the security is furnished and the other deposits are made, the formality of "admission" envisaged by rule 8 of Order XLV of the Civil Procedure Code is unnecessary, because in such cases the order .granting special leave by itself operates as an admission of the appeal as soon as the conditions in the order relating to the furnishing of security or making of deposits are complied with. Appeals under Article 136 thus stand on a different footing from appeals on grant of certificate by the High Court itself. In the letter case, the High Court has exclusive jurisdiction over the matter until it admits the appeal under rule 8 of Order XLV of the Civil Procedure Code. Rule 9 of Chapter 32 of the Original Side Rules of the Calcutta High Court envisages "admission" of appeals to the Supreme Court whether by an order of the Supreme Court or under Order XLV of the Civil Procedure Code. And when an appeal arising from an order made by the Supreme Court under Article 136 of the Constitution, has been so "admitted", the said rule enjoins upon the Registrar to issue notice of such admission for service by the appellant on the Respondents. In cases where special leave has been granted by the Supreme Court, it is not necessary for the appellant to move the High Court appealed from for the formal admission of his appeal. As the order granting special leave itself lays down the conditions to be fulfilled by the appellants, the admission will be regarded as final only when the directions are complied with and as 245 soon as this is done it would be the duty of the Registrar to issue a notice of the admission of the appeal for service upon the respondents. In default of the issue of such notice, the appellant cannot be held responsible for laches in the prosecution of his appeal with regard to the steps required to be taken after the admission of his appeal.

Respondents No. 2 to 4, regular employees of the appel lant Delhi Transport Corporation, were served with termina tion notices under Regulation 9(b) of the Delhi Road Trans port Authority (Conditions of Appointment & Service) Regula tions, 1952 by the appellant Corporation on the ground that they became inefficient in their work and started inciting other members not to perform their duties. The three respondents and their Union, respondent No. 1 filed writ petition in High Court, challenging the constitu tional validity of Regulation 9(b), which gave the manage ment right to terminate the services of an employee by giving one month 's notice or pay in lieu thereof. The Divi sion Bench of the High Court struck down the Regulation, holding that the Regulation gave absolute, unbridled and arbitrary powers to the management to terminate the services of any permanent or temporary employee, and such power was violative of Article 14 of the Constitution. Hence, the Corporation filed the appeal before this Court, by special leave. The validity of similar provisions in Para 522 of the Shastri Award, rule 1(i) of the District Board Rules 1926, Part V, Regulation 13 of Indian Airlines Employees ' Service Regulations, Regulation 48 of Air India Employees ' Service Regulations and also the clause in the contract of appoint ment in respect of employees of Zilla Parishad and the New India Assurance Company, also came up for consideration in the connected appeals and applications filed before this Court. It was contended on behalf of the Delhi Transport Corpo ration that there was sufficient guideline in Regulation 9(b) and the power of termination, properly read, would not be arbitrary or violative of Article 14 of the Constitution, that the Court would be entitled to obtain guidance from the preamble, the policy and the purpose of the Act and the power conferred under it and to see that the power was exercised only for that purpose, that even a term like 'public interest ' could be sufficient guidance in the matter of retirement of a government employee, and such a provision could be read into a statute even when it was not otherwise expressly there, that it was well settled that the Court would sustain the presumption of constitutionality by con sidering matters of common knowledge and to assume every state of facts which could be conceived and could even read down the section, if it became necessary to uphold the validity of the provision, that the underlying 144 rationale of this rule of interpretation, or the doctrine of reading down of a statute being that when a legislature, whose powers were not unlimited, enacted a statute, it was aware of its limitations, and in the absence of express intention or clear language to the contrary, it must be presumed to have implied into the statute the requisite limitations and conditions to immunise it from the virus of unconstitutionality, that since every legislature intended to act within its powers, in a limited Government, the legislature would attempt to function within its limited powers and it would not be expected to have intended to transgress its limits, that the guidelines for the exercise of the power of termination simpliciter under Regulation 9(b) could be found in the statutory provisions of the 1950 Act under which the regulations had been framed, the pream ble; Sections 19, 20 and 53, the context of Regulation 9(b) read with Regulations 9(a) and 15, that even for the exer cise of this power, reasons could be recorded although they need not be communicated which would ensure a check on the arbitrary exercise of power and effective judicial review in a given case, ensuring efficient running of services and in public interest and the regulations in question were paral lel to, but not identical with, the exceptions carved out under proviso to Article 311(2), that even the power of termination simipliciter under Regulation 9(b) could only be exercised in circumstances other than those in Regulation 9(a), i.e. not where the foundation of the order was 'mis conduct ', the exercise of such power could only be for purposes germane and relevant to the statute, that the principles of natural justice or holding of an enquiry is neither a universal principle of justice nor inflexible dogma and the principles of natural justice were not incapa ble of exclusion in a given situation, if importing the right to be heard has the effect of paralysing the adminis trative process or the need for promptitude or the urgency of the situation so demands, natural justice could be avoided; that the words "where it is not reasonably prac ticable to hold an enquiry" may be imported into the regula tion, that where termination took place by the exclusion of audi alteram partem rule in circumstances which were circum scribed and coupled with the safeguard of recording of reasons which were germane and relevant, then the termina tion would not render the regulation unreasonable or arbi trary, and if the regulation was read in this manner it could not be said that the power was uncanalised or unguid ed, that under ordinary law of "master and servant" the Corporation was empowered by the Contract of Service to terminate the services of its employees in terms thereof; the Declaration in Brojo Nath 's case that such a contract was void under section 23 of the Indian Contract Act or opposed to public policy offending the Fundamental Rights and the Directive Principles was not sound in law; as a master, the Corporation had unbridled right 145 to terminate the contract in the interests of efficient functioning of the Corporation or to maintain discipline among its employees, and if the termination, was found to be wrongful, the only remedy available to the employees was to claim damages for wrongful termination but not a declaration as was granted in Brojo Nath 's case. On behalf of the workmen/intervenors, it was submitted that provision of any rule that service would be liable to termination on notice for the period prescribed therein contravened Article 14 of the Constitution, as arbitrary and uncontrolled power was left in the authority to select at its will any person against whom action would be taken; that Articles 14, 19 and 21 were inter related and Article 21 did not exclude Article 19 and even if there was a law providing a procedure for depriving a person of personal liberty and there was, consequently no infringement of fundamental right conferred by Article 21, such law in so far as it abridged or took away any fundamental right under Article 19 would have to meet the challenge of that Article, that violation of principle of natural justice by State action was viola tion of Article 14 which could be excluded only in excep tional circumstances, and, therefore, a clause which autho rised the employer to terminate the services of an employee, whose contract of service was for indefinite period or till the age of retirement, by serving notice, and which did not contain any guidance for the exercise of the power and without recording reasons for such termination, violated the fundamental rights guaranteed under Articles 14, 19(1)(g) and 21 and principles of natural justice and was void under Section 2(g) of the , and unforce able under Section 2(hi; that since audi alteram partem was a requirement of Article 14. and conferment of arbitrary power itself was contrary to Article 14, the rule in ques tion could not be sustained as valid; that the Constitution al guarantees under Articles 14 and 21 were for all persons and there could be no basis for making a distinction between 'workmen ' to whom the Industrial Disputes Act and other industrial laws applied and those who were outside their purview, and the law applicable to the former could only add to and not detract from the rights guaranteed by Part 111 of the Constitution; that the power to terminate the services of a person employed to serve indefinitely or till the age of retirement could be exercised only in cases of proved misconduct or exceptional circumstances having regard to the Constitutional guarantee available under Article 14, 19(1)(g) and 21 and unless the exceptional circumstances were spelt out, the power to terminate the services would cover both permissible and impermissible grounds rendering it wholly invalid, particularly because, the requirement of audi alteram partem which was a part of the guarantee of 146 Article 14 was sought to be excluded, and there could be no guidance available in the body of the law itself, since the purpose for which an undertaking was established and the provisions dealing with the same in the law could provide no guidance regarding exceptional circumstances under which alone the power could be exercised, that the question in volved, in the instant cases was not the exercise of power which an employer possessed to terminate the services of his employee, but the extent of that power; that provisions of Regulation 9(b) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952, could not be rendered constitutional by reading the require ment of recording reasons and confining it to cases where it was not reasonably practicable to hold an enquiry and read ing it down further as being applicable to only exceptional cases would not be permissible construction and proper; that the Regulation conferred arbitrary power of leaving it to the DTC Management to pick and choose, either to hold an enquiry or terminate the services for the same misconduct and there was nothing in the provisions of the Act or the regulations from which the Management could find any guid ance and, therefore, in order to conform to the constitu tional guarantees contained in Articles 14, 19(1)(g) and 21, the regulation would have to make a distinction between cases where services were sought to be terminated for mis conduct and cases of termination on grounds other than what would constitute misconduct; that regulation 9(b) deliber ately conferred wide power of termination of service without giving reasonable opportunity to an employee even if he was regular or permanent employee, in addition to regulation 15 which provided for dismissal or removal after a disciplinary enquiry, thus, the intention of the regulation making au thority was clear and unambiguous; the provision was not capable of two interpretations, and consequently, the ques tion of reading down did not arise, and reading down in the instant cases involved not interpretation of any single word in regulation 9(b) but adding a whole clause to it, which amounted to rewriting the provisions, which courts had refused to make up for the omission of the legislature, and would inevitably drain out Article 14 of its vitality, and the right to equality which was regarded as a basic feature of the Constitution, and subject permanent employees of the DTC to a tremendous sense of insecurity which is against the philosophy and scheme of the Constitution, that unless the provision of the Constitution itself excluded the principles of natural justice, they continued to be applicable as an integral part of the right to equality guaranteed by the Constitution, that as the employees of the DTC were not Government employees, Article 311(2) was not applicable, and Article 14 fully applied to them, including the principles of natural justice. 147 On behalf of the Indian Airlines Corporation and the Air India, which filed intervention applications, it was submit ted that there had been distinction between the discharge simpliciter and dismissal from service by way of punishment, that the effect of the judgments of this Court in the Cen tral Inland Water 's case and West Bengal 's case was to take away the right of the employer to terminate the services of an employee by way of discharge simpliciter, that this Court had recognised the existence of the inherent right of an employer to terminate the services of an employee in terms of the contract of employment and also under the various labour enactments, that a plain reading of the amended Regulation 13 of the Indian Airlines Employees ' Regulations and a cumulative reading of the amended regulations 48 and 44 of the Air India Employees Service Regulations clearly established that the vice, if any, of arbitrariness had been completely removed and that the power to terminate had been vested with the Board of Directors, and not with any indi vidual, and sufficient guidelines made available to the Board to exercise the restricted and limited power available to the employer under these regulations. On behalf of another intervenor, New India Assurance Co., it was submitted that the Central Inland Water 's case was erroneous, insofar as it made complete negation of power of the employer to terminate and rendered the termination illegal even where the employer had made all the necessary investigation and had given hearing to the employee con cerned before making the order, and took in even private employment; therefore, the judgment of this Court should be read down and made applicable prospectively. In Civil Appeal No. 4073 of 1986 it was contended on behalf of the Bank employee whose services were terminated under para 522 of the Shastri Award, that mere failure of the employee to mention the loan taken by him from another branch of the Bank, which was repaid subsequently, had deprived him of his livelihood, and his services were termi nated without charge of 'misconduct ' and without an enquiry, and paragraph 522 of the Shastri Award gave no indication as to on what conditions this arbitrary uncontrolled power could be used to get rid of one or more permanent employees for "efficient management of Banks" on subjective opinions or suspicion not tested in enquiry into facts, and that this provision provided for "insecurity of tenure" for lakhs of permanent employees; Articles 14, 19(1)(g) and 21 and the integrated protection of these Fundamental Rights excluded the "doctrine of pleasure" and insisted on security of tenure "during good behaviour", and the right to livelihood could not be rendered precari 148 ous or reduced to a "glorious 'uncertainty", that no princi ple of interpretation permitted reading down a provision so as to make it into a different provision altogether differ ent from what was intended by the legislature or its dele gate, and there could not be any reading down which was contrary to the principles of interpretation; that if two provisions existed, firstly to remove from service after holding an enquiry on a charge of 'misconduct ' and secondly, without serving a charge sheet or holding an enquiry, all provisions for holding enquiry would be rendered otiose and would be reduced to a mere redundancy, that the Court had a duty to correct wrongs even if orders had been made which were later found to be violative of any fundamental right and to recall its orders to avoid injustice; that substan tive provision of para 522 could not be controlled or cur tailed effectively so as to confine its operation within narrow constitutional limits; that it was not the duty of the court to condone the constitutional delinquencies of those limited by the Constitution if they arrogated uncon trolled unconstitutional powers, which were neither neces sary nor germane for supposed efficiency of services in the Banks as a business enterprise, and that in a system gov erned by rule of law, discretion when conferred upon execu tive authorities must be confined within clearly defined limits. In Civil Appeal No. I 115 of 1976, the appellant employ ee of the Zila Parishad contended that his services were terminated on account of the vindictiveness of some of the employees of the respondent, and without enquiry. The em ployer submitted that the termination order was passed on the basis of the condition in the mutually agreed terms of contract of appointment, and resolution passed by the Board, and that Rule 1(i) of District Board Rules, 1926, Part V gave right to both the parties to terminate the employment on one month 's notice. On the questions (i) whether Regulation 9(b) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952, was arbitrary, illegal, discriminatory and violative of audi alteram partem and so constitutionally invalid and void; and (ii) whether the Regulation could be interpreted and read down in such a manner as to hold that it was not discriminatory, or arbi trary and did not confer unbriddled and uncanalised power on the authority to terminate the service of an employee, including a permanent employee, without any reason whatsoev er. Dismissing Civil Appeal No. 2876 of 1986 (appeal by the Delhi Transport Corporation), allowing Civil Appeal No. 1115 of 1976, and directing other matters to be placed before a Division Bench, in ac 149 cordance with the majority decision (per Ray, Sharma, Sawant and K. Ramaswamy, JJ.) this Court, HELD: Per Ray, J.: 1. I Regulation 9(b) of the Delhi Road Transport Author ity (Conditions of Appointment and Service) Regulations, 1952 which confers powers on the authority to terminate the services of a permanent and confirmed employee by issuing a notice terminating the services or by making payment in lieu of notice without assigning any reasons in the order and without giving any opportunity of hearing to the employee before passing the orders is wholly arbitrary, uncanalised and unrestricted violating principles of natural justice as well as Article 14 of the Constitution. There is no guide line in the Regulations or in the Delhi Road Transport Authority Act, 1950 as to when or in which cases and circum stances this power of termination by giving notice or pay in lieu thereof can be exercised. [264G, 285C] 1.2 Government Companies or Public Corporations which carry on trade and business activity of State being State instrumentalities, are State within the meaning of Article 12 of the Constitution and as such they are subject to the observance of fundamental rights embodied in Part 111 as well as to conform to the directive principles in Part IV of the Constitution. In other words, the Service Regulations or Rules framed by them are to be tested by the touchstone of Article 14 of the Constitution. Furthermore, the procedure prescribed by their Rules or Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust. [264H, 265A B] 1.3 The 'audi alteram partem ' rule which, in essence, enforces the equality clause in Article 14 of the Constitu tion is applicable not only to quasi judicial orders but to administrative orders affecting prejudicially the party in question unless the application of the rule has been ex pressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do no supplant but supplement the Rules and Regulations. Moreover, the Rule of Law, which permeates the Constitution of India, demands that it has to be observed both substantially and procedurally. Rule of law posits that the power to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination. [265D E] Regulation 9(b) does not expressly exclude the application of the 150 'audi alteram parterm ' rule and as such the order of termi nation of service of a permanent employee cannot be passed by simply issuing a month 's notice or pay in lieu thereof without recording any reason in the order and without giving any hearing to the employee to controvert the allegation on the basis of which the purported order is made. [265F] 1.4 Considering from all these aspects Regulation 9(b) is illegal and void, as it is arbitrary, discriminatory and without any guidelines for exercise of the power. It confers unbridled, uncanalised and arbitrary power on the authority to terminate the services of a permanent employee without recording any reasons and without conforming to the princi ples of natural justice. It is also void under Section 23 of the Contract Act, as being opposed to public policy and also ultra vires of Article 14 of the Constitution. [265E, 265B C, 266G] Moti Ram Deka Etc. vs General Manager, NEF Railways, Maligaon. Pandu, Etc., ; ; Parshotam Lal Dhingra vs Union of India, ; ; Shyam Lal vs The State of Uttar Pradesh and Anr., ; ; Shri Ram Krishna Dalmia vs Shri Justice S.R. Tendolkar & Ors., ; ; Jyoti Pershad vs The Administrator for the Union Territory of Delhi, ; ; State of Orissa vs Dr. (Miss) Binapani Devi & Ors., ; ; A.K. Kraipak of India vs Col. J.N. Sinha and Anr., [1971] 1 SCR 791; Air India Corporation vs V.A. Rebello & Ant., AIR 1972 S.C. 1343; The Workmen of Sudder Office Cinnamara vs The Manage ment, ; Tata Oil Mills Co. Ltd. vs Work men & Anr.; , ; Maneka Gandhi vs Union of India, [1978] 2 SCR 621; E.P. Royappa vs State of Tamil Nadu and Anr. ; ; Municipal Corporation of Greater Bombay vs Malvenkar & Ors., ; ; Manohar P. Kharkher and Anr. vs Raghuraj & Anr., ; 1. Michael & Anr. vs Johnaton Pumps India Ltd., ; ; Sukhdev Singh & Ors. vs Bhagat Ram Sardar Singh Raghu vanshi & Anr.; , ; S.S. Muley vs J.R.D. Tata & Ors., ; West Bengal State Electricity Board & Ors. vs Desh Bandhu Ghosh and Ors., [1985] 3 SCC 116; Workmen Of Hindustan Steel Ltd. and Anr. vs Hindustan Steel Ltd. and Ors., ; ; O.P. Bhandari vs Indian Tourism Development Corporation Ltd. & Ors. , ; ; Central Inland Water Transport Corporation Ltd. & Anr. vs Brojo Nath Ganguly & Anr., and Delhi Transport Undertaking vs Balbir Saran Goel, ; , referred to. 2.1 An Act can be declared to be valid wherein any term has been 151 used which per se seems to be without jurisdiction, but can be read ' down in order to make it constitutionally valid by separating and excluding the part which is invalid or by interpreting the word in such a fashion as to make it con stitutionally valid and within jurisdiction of the legisla ture which passed the said enactment, by reading down the provisions of the Act. This however, does not under any circumstances, mean that where the plain and literal meaning that follows from a bare reading of the provisions of the Act, Rule or Regulations that it confers arbitrary uncana lised, unbridled unrestricted power to terminate the serv ices of a permanent employee without recording any reasons for the same and without adhering to the principles of natural justice and equality before the law as envisaged in Article 14 of the Constitution, it can be read down to save the said provision from constitutional invalidity, by bring ing or adding words in the said legislation, such as saying that it implies that reasons for the order of termination have to be recorded. [271C F] 2.2 In interpreting the provisions of an Act, it is not permissible where the plain language of the provision gives a clear and unambiguous meaning that it can be interpreted by reading down and presuming certain expressions in order to save it from constitutional invalidity. Therefore, it is impossible to hold by reading down the provisions of Regula tion 9(b) framed under section 53 of the Delhi Road Trans port Act, 1950 read with Delhi Road Transport (Amendment) Act, 1971 that the said provision does not confer arbitrary, unguided, unrestricted and uncanalised power without any guidelines on the authority to terminate the services of an employee without conforming to the principles of natural justice and equality as envisaged in Article 14 of the Constitution of India. [271F H, 272A] Union of India & Anr. vs Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131; Roshan Lal Tandon vs Union of India, ; ; Commissioner of Sales Tax, Madhya Pradesh, Indore & Ors. vs Radhakrishan & Ors. , ; ; In Re The Hindu Women 's Rights to Property Act, 1937, and the Hindu Women 's Rights to Property (Amendment) Act, 1938 and in Re a Special Reference under Section 213 of the Government of India Act, 1935, ; R.M.D. Chamarbaugwalla vs The Union of India; , ; R.L. Arora vs State of Uttar Pradesh & Ors. , ; and The Mysore State Electricity Board vs Bangalore Woollen, Cotton and Silk Mills Ltd. & Ors., [1963] Supp. 2 SCR 127, Jagaish Pandey vs The Chancellor of Bihar & Anr. , ; , referred to. H.N. Seervai: Constitutional Law of India, Third Edi tion, p. 119, referred to. 152 Per Sharma, J. 1.1 The rights of the parties in the present cases cannot be governed by the general principle of master and servant, and the management cannot have unrestricted and unqualified power of terminating the services of the employ ees. In the interest of efficiency of the public bodies, however, they should have the authority to terminate the employment of undesirable, inefficient, corrupt, indolent and disobedient employees, but it must be exercised fairly, objectively and independently; and the occasion for the exercise must be delimited with precision and clarity. Further, there should be adequate reason for the use of such a power, and a decision in this regard has to be taken in a manner which should show fairness, avoid arbitrariness and evoke credibility. And this is possible only when the law lays down detailed guidelines in unambiguous and precise terms so as to avoid the danger of misinterpretation of the situation. An element of uncertainty is likely to lead to grave and undesirable consequences. Clarity and precision are. therefore, essential for the guidelines. [272D F] 1.2 Regulation 9(b) of the Delhi Road Transport Authori ty (Condition of Appointment and Service) Regulation, 1952 cannot, therefore. be upheld for lack of adequate and appro priate guidelines. [272G] Per Saw,ant, J. 1.1. There is need to minimise the scope of the arbi trary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals. however high placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life. liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness do not go with the posts, however high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law. [276E F] 1.2 Beyond the self deluding and self asserting right eous presumption, there is nothing to support the 'high authority ' theory. This 153 theory undoubtedly weighed with some authorities for some time in the past. But its unrealistic pretensions were soon noticed and it was buried without even so much as an ode to it. [278A B] 1.3 The employment under the public undertakings is a public employment and a public property. It is not only the undertakings but also the society which has a stake in their proper and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimiscal. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired. [276G H, 277A] 1.4 The right to life includes right to livelihood. The right to livelihood, therefore, cannot hang on to the fan cies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill afford to be consigned to the limb of undefined premises and uncertain applications. That will be a mockery of them. [277B] 1.5 Both the society and the individual employed, there fore, have an anxious interest in service conditions being well defined and explicit to the extent possible. The arbi trary rules which are also sometimes described as Henry VIII Rules, can have no place in any service conditions. [277C] Sukhdev Singh & Ors. vs Bhagatram Sardar Singh Raghu vanshi & Anr. ; , ; Maneka Gandhi vs Union of India, ; The Manager, Government Branch Press & Ant. vs D.R. Belliappa, ; ; The Manag ing Director, Uttar Pradesh Warehousing Corporation & Anr. vs Vinay Narayan Vajpayee; , ; A.L. Kalra vs The Project & Equipment Corporation of India Ltd., ; ; Workmen of Hindustan Steel Ltd. & Anr. vs Hindustan Steel Ltd. & Ors. , ; ; West Bengal State Electricity Board & Ors. vs Desh Bandhu Ghosh & Ors., [1985] 2 SCR 1014; Olga Tellis & Ors. vs Bombay Municipal Corpora tion & Ors. , [1985] Supp. 2 SCR 51; Union of India & Anr. vs Tulsiram Patel& Ors., [1985] Supp. 2 SCR 131; Cen tral Inland Water Transport Corporation Ltd. & Anr. vs Brojo Nath Ganguly & Anr. , ; O.P. Bhandari vs Indian Tourism Development Corporation Ltd. & Ors. ; ; N.C. Dalwadi vs State of Gujarat, [1987] 3 154 SCC 611; M.K. Agarwal vs Gurgaon Gramin Bank & Ors., [1987] Supp. SCC 643 and Daily Rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch etc. vs Union of India & Ors., , referred to. 2.1 The doctrine of reading down or of recasting the statute can be applied in limited situations. It is essen tially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an exten sion of the principle that when two interpretations are possible one rendering it constitutional and the other making it constitutional the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its viola tion of any of the provisions of the Constitution. The second situation which summons its aid is where the provi sions of the statute are vague and ambiguous and it is possible to gather the intention of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the Court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. If the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. The doctrine can never be called into play where the statute requires extensive additions and deletions. Not only it is no part of the court 's duty to undertake such exercise, but it is beyond its jurisdiction to do so. [288F H, 289A B] Re Hindu Women 's Rights to Property Act, 1937, and the Hindu Women 's Rights to Property (Amendment) Act, 1938 etc., ; Nalinakhya Bysack vs Shyam Sunder Halder & Ors. , ; ; R.M.D. Chamarbaugwalla vs The Union of India, ; ; Kedar Nath Singh vs State of Bihar, [1962] Supp. 2 SCR 769; R.L Arora vs State of Uttar Pradesh & Ors., ; ; Jagdish Pandey vs The Chancellor, University of Bihar & Anr., [1968] I SCR 231; Shri Umed vs Raj Singh & Ors., [1975] I SCR 918; Mohd. Yunus Salim 's case; , ; Sunil Batra etc. vs Delhi Adminis tration & Ors.; , ; Excel Wear etc. vs Union of India & Ors. , ; ; Minerva Mills Ltd. & Ors. vs Union of India & Ors. , ; ; Union of India & Anr. etc. vs Tulsiram Patel etc. ; , and Elliott Ashton Welsh, 11 vs United States; , ; 308, referred to. 155 2.2 Therefore, the doctrine of reading down cannot be availed of for saving the regulation in the instant case. In the first instance, the regulation is a part of the service regulations of the employees made by the Delhi Road Trans port Authority in exercise of the powers conferred by sub section (1) read with clause (c) of sub section (2) of Section 53 of the Delhi Road Transport Act, 1950, whose object is to provide for the establishment and the regula tion of Road Transport Authority for the promotion of a co ordinated system of road transport in the State of Delhi. There is nothing either in the object of the service regula tions or in the object of the Act which has a bearing on Regulation 9(b). If anything the object of the Act would require framing of such service regulations as would ensure dedicated and diligent employees to run the undertaking. The dedication of the employees would pre suppose security of employment and not a constant hanging of the Democle 's sword over their head, and hence would in any case not bear the existence of such regulation. Secondly, the language of regulation is so crystal clear that no two interpretations are possible to be placed on it and hence it is not permis sible to read in it any meaning other than what is clearly sought to be conveyed by it. Thirdly, the context of the regulation makes it abundantly clear that it is meant to be a naked hire and fire rule and the authority has been vested with unguided and arbitrary power to dispense with the services of any category of the employees. Sub clause (a) of the Regulation mentions elaborately the circumstances in which the services of an employee can be terminated without any notice or pay in lieu of such notice. Sub clause (b) follows closely on its heel and states in clear language that when the termination is made due to reduction of estab lishment or in circumstances other than those mentioned in sub clause (a), one month 's notice or pay in lieu thereof is all that is necessary to be given for terminating an employ ee 's services. The intention of the rule making authority, therefore, is more than clear. It was to give an absolute free hand without any limitations whatsoever to terminate the services of any employee. Both the language of the regulation as well as the context in which it is cast leave no scope for reading into it any further provision. [289C H, 290A] 2.3 Moreover, reading in the rule circumstances under which alone the rule can be used, and reading it down to read in it words or expressions or provisions in order to save the legislation would not only distort the intention of the rule making authority but would also require extensive amendment of a very vague nature to it. The reading in the regulation of a provision that the concerned employees should be given a hearing with regard to his mis conduct will require that be should first be intimated of the mis conduct of which he is guilty. But 156 that kind of a situation is taken care of by sub clause (a) of the said regulation. There is. therefore. no need of a separate prevision for the same. on the other hand. the services of an employee are to be terminated on grounds other than those mentioned in sub clause (a), then those grounds being unknown to the employee, cannot be met by him even if he is given a hearing. The Court cannot read in the rule all circumstances where it is not possible or necessary to hold an enquiry. Such situations are capable of being formulated easily and conveniently at least in general terms as is done by the Constitution makers in the second proviso to Article 311( 2). The reading of such circumstances in the existing regulation would require its extensive recasting which is impermissible for the Court to do. There is no authority which supports such wide reading down of any provision of the statute or rule/regulation. Therefore the doctrine of reading down is singularly inapplicable to the present case. [281B, 290B, 291A F] 3. Clause (b) of Regulation 9 contains the much hated and abused rule of hire and fire reminiscent of the days of laissez faire and unrestrained freedom of contract. [274E] Per Ramaswamy. J 1. 1.1 The question of security of work is of most impor tance. If a person does not have the feeling that he belongs to an organisation engaged in promotion. he will not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management. Therefore, as far as possible security of work should be assured the employees so that they may contribute to the maximisation of production. [300D E] Daily Rated Casual Labour vs Union of India, at 130 131, referred to. 1.2 A permanent employee of a statutory authority, corporation or instrumentality under Article 12 has a lien on the post till he attained superannuation or compulsorily retired or service is duly terminated in accordance with the procedure established by law. Security of tenure enures the benefit of pension on retirement. Dismissal, removal or termination of his/her service for inefficiency, corruption or other misconduct is by way of penalty. He/She has a right to security of tenure which is essential to inculcate a sense of belonging to the service or organisation and in volvement for maximum production or efficient 157 service. It is also a valuable right which is to be duly put an end to only as per valid law. [300A G] Roshan Lal Tandon vs Union of India, ; at 195 196; Calcutta Dock Labour Board vs Jarfar Imam, and Sirsi Municipality vs Cecelia Kom Francis Tal lis; , , referred to. 1.3 The right to life, a basic human right, assured by Article 21 of the Constitution comprehends some thing more than mere animal existence; it does not only mean physical existence, but includes basic human dignity. The right to public employment and its concomitant right to livelihood receive their succour and nourishment under the canopy of the protective umbrella of Articles 14, 16(1), 19(1)(g) and 21. [296A, 297B] Munn vs Illinois, ; and 154, referred to. Kharak Singh vs State of U.P., [1964] 1 SCR 332; Olga Tellis vs Bombay Municipal Corporation, [1985] 2 Suppl. SCR page 51 at 79; Menaka Gandhi vs Union of India, [1978] 2 SCR 621; State of Maharashtra vs Chander Bhan, and Board of Trustees, Port of Bombay vs Dilip Kumar; , , referred to. 1.4 The arbitrary, unbridled and naked power of wide discretion to dismiss a permanent employee without any guidelines or procedure would tend to defeat the constitu tional purpose of equality and allied purposes. Therefore, when the Constitution assures dignity of the individual and the right to livelihood, the exercise of power by the execu tive should be combined with adequate safeguards for the rights of the employees against any arbitrary and capricious use of those powers. Workmen of Hindustan Steels Ltd. vs Hindustan Steel Ltd. & Ors.; , and Francis Corallie vs U.T. of Delhi; , = ; , referred to. 1.5 It is well settled constitutional law that different Articles the Chapter on Fundamental Rights and the Directive Principles in Part IV of the Constitution must be read as an integral and incorporeal whole with possible overlapping with the subject matter of what is to be protected by its various provisions, particularly the Fundamental Rights. The fundamental rights, protected by Part III of the constitu tion, out of which Articles 14. 19 and 21 are the most frequently 158 invoked to test the validity of executive as well as legis lative actions when these actions are subjected to judicial scrutiny, are necessary means to develop one 's own person ality and to carve out one 's own life in the manner one likes best subject to reasonable restrictions imposed in the paramount interest of the society and to a just. fair and reasonable procedure. The effect of restriction or deprivation and not of the form adopted to deprive the right is the conclusive test. Thus, the right to a public employ ment is a constitutional right under Article 16(1). All matters relating to employment include the right to continue in service till the employee reaches superannuation or his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution or the Rules made under proviso to Article 309 of the Constitution or the statutory provision or the Rules. regulations or instructions having statutory flavour made thereunder. But the relevant provisions must be conformable to the rights guaranteed in Parts III & IV of the Constitu tion. Article 21 guarantees the right to live which includes right to livelihood. to many. assured tenure of service is the source. [311G; 312G H, 313A B] R.C. Cooper vs Union of India, ; ; Minerva Mills Ltd. vs Union of India, and Union of India & Ant. vs Tulsiram Patel & 0rs. [1985] Suppl. 2 SCR 131 at 233 referred to. 1.6 Article 14 is the general principle while article 311(2) is a special provision applicable to all civil serv ices under the State. Article 311(2) embodies the principles of natural justice but proviso to clause (2) of article 311 excludes the operation of principles of natural justice engrafted in article 311(2) as an exception in the given cir cumstances enumerated in these clauses of the proviso to article 311(2) of the Constitution. Article 14 read with Arti cles 16(1) and 311 are to be harmoniously interpreted that the proviso to article 311(2) excludes the application of the principles of natural justice as an exception; and the applicability of Article 311(2) must, therefore, be circum scribed to the civil services and to be construed according ly. In respect of all other employees covered by Article 12 of the Constitution the dynamic role of Article 14 and other relevant Articles like 21 must be allowed to have full play without any inhibition. unless the statutory rules them selves, consistent with the mandate of Articles 14.16.19 and 21 provide, expressly, such an exception. [317F H, 315A] Union of India & Ant. vs Tulsiram Patel & Ors., [1985] Suppl. 2 SCR 131 at 233; A.K. Kraipak & Ors. etc. vs Union of India & Ors., and Union of India vs Col J.N. Sinha & Ors., [1971] 1 SCR 791, referred to. 159 1.7 Article 19(1)(g) empowers every citizen right to avocation or profession etc., which includes right to be continued in employment under the State unless the tenure is validly terminated and consistent with the scheme enshrined in the fundamental rights of the Constitution. Whenever there is arbitrariness in State action whether it be of the Legislature or of the Executive or of an authority under Article 12. Articles 14 and 21 spring into action and strike down such an action. The concept of reasonableness and non arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution. [315B D] 1.8 Thus, Article 14 read with 16(1) accords right to an equality or an equal treatment consistent with principles of natural justice. Any law made or action taken by the employ er, corporate statutory or instrumentality under Article 12 must act fairly and reasonably. Right. to fair treatment is an essential inbuilt of natural justice. Exercise of unbri dled and uncanalised discretionary power impinges upon the right of the citizen; vesting of discretion is no wrong provided it is exercised purposively, judiciously and with out prejudice. Wider the discretion, the greater the chances of abuse. Absolute discretion is destructive of freedom than of man 's inventions. Absolute discretion marks the beginning of the end of the liberty. The conferment of absolute power to dismiss a permanent employee is antithesis to justness or fair treatment. The exercise of discretionary power wide of mark would bread arbitrary, unreasonable or unfair actions and would not be consistent with reason and justice. [320B D] 1.9 The right to public employment which includes right to continued public employment till the employee is superan nuated as per rules or compulsorily retired or duly termi nated in accordance with the procedure established by law is an integral part of right to livelihood which in turn is an integral part of right to life assured by article 21 of the Constitution. Any procedure prescribed to deprive such a right to livelihood or continued employment must be just, fair and reasonable procedure and conformable to the mandate of Articles 14 and 21. In other words, an employee in a public employment also must not be arbitrarily, unjustly or unreasonably deprived of his/her livelihood which is ensured in continued employment till it is terminated in accordance with just, fair and reasonable procedure. Otherwise any law or rule in violation thereof is void. [320E F] A.K. Kraipak & Ors. etc. vs Union of India & Ors. , ; Union of India vs Col. J.N. Sinha and Anr., [1971] 1 SCR 791; 160 Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. vs Union of India & Ors. , ; at 60 61; S.S. Muley vs J.R.D. Tata, ; Superin tendent of Post Office vs K. Vasayya, [1984] 3 Andhra Pra desh law Journal 9; West Bengal Electricity Board & Ors. vs D.B. Ghosh & Orb '., [1985] 2 SCR 1014; Workmen of Hindustan Steel Ltd. & Anr. vs Hindustan Steel Ltd. & Ors. , ; ; O.P. Bhandari vs Indian Tourism Development Corp. Ltd. & Ors. , ; ; A.P.S.R.T. Corp. vs Labour Court, AIR 1980 A.P. 132; R.M.D. Chamarbaugwalla vs State of Punjab, ; ; Kanhialal vs District Judge & Ors., ; M.K. Agarwal vs Gurgaon Gramin Bank & Ors., ; All Saints High School vs Government of A.P., ; & 938 e to f; Frank Anthoney Public School vs Union of India, ; & 269 b to e; Christian Medical College Hospital Employees ' Union & Anr. vs Christian Medical College Veilore Association & Ors., ; & 562; Kameshwar Prasad vs State of Bihar, [1962] Suppl. 3 SCR 369 and O.K. Ghosh vs EZX Joseph, [1963] Supp. 1 SCR 789, referred to. United States vs Samuel D. singleton; , , referred 1.10 Undoubtedly, efficiency of the administration and the discipline among the employees is very vital to the successful functioning of an institution or maximum produc tion of goods or proper maintenance of the services. Disci pline in that regard amongst the employees is its essential facet and bas to be maintained. The society is vitally interested in the due discharge of the duties by the govern ment employees or employees of corporate bodies or statutory authorities or instrumentalities under article 12 of the Con stitution. The government or corporate employees are, after all, paid from the public exchequer to which everyone contributes either by way of direct or indirect taxes. The employees are charged with public duty and they should perform their public duties with deep sense of responsibili ty. The collective responsibility of all the officers from top most to the lowest maximises the efficient public admin istration. They must, therefore, be held to have individual as well as collective responsibility in discharge of their duties faithfully honestly with full dedication and utmost devotion to duty. Equally the employees must also have a feeling that they have security of tenure. They should also have an involvement on their part in the organisation or institution, corporation, etc. They need assurance of serv ice and protection. The public interest and the public good demands that those who discharge their duties honestly, efficiently and 161 with a sense of devotion and dedication to duty should receive adequate protection and security of tenure. There fore, before depriving an employee of the means of liveli hood to himself and his dependents, i.e. job, the procedure prescribed for such deprivation must be just, fair and reasonable under articles 21 and 14 and when infringes article 19(1)(g) must be subject to imposing reasonable restrictions under article 19(5). [320G H, 321A D, 322D] 1.11 Conferment of power on a high rank officer is not always an assurance, in particular, when the moral standards are generally degenerated, that the power would be exercised objectively, reasonably, conscientiously, fairly and justly without inbuilt protection to an employee. Even officers who do their duty honestly and conscientiously are subject to great pressures and pulls. Therefore, the competing claims of the "public interest" as against "individual interest" of the employees are to be harmoniously blended so as to serve the societal need consistent with the constitutional scheme. [322D E] 1.12 Regulation 9(b) of the Delhi Road Transport (Condi tions of Appointment and Service) Regulations, 1952, is arbitrary, unjust, unfair and unreasonable offending Arti cles 14, 16(1), 19(1)(g) and 21 of the Constitution. It is also opposite to the public policy and thereby is void under Section 23 of the . [330G] 1.13 Under ordinary law of master and servant, whether the contract of service is for a fixed period or not, if it contains a provision for termination of service by notice, in terms thereof, it can be so determined and if the con tract finds no provision to give notice and the contract of service is not for a fixed period, law implies giving of a reasonable notice. Where no notice or a reasonable notice was issued. before terminating the contract. the termination of the contract of service is wrongful and the aggrieved employee is entitled at law to sue for damages. It is not disputed that the Delhi Road Transport Corporation is a statutory Corporation under the Delhi Road Transport Act and the Regulations are statutory and its employees are entitled to the fundamental rights enshrined in Part 111 of the Constitution. The Corporation or an instrumentality or other authority under Article 12 is not free, like an ordinary master (a private employer) to terminate the services of its employees at its whim or caprices or vagary. It is bound by the Act and the Regulation and paramount law of the land, the Constitution. [292G H; 293A B] 1.14 Any law, much less the provisions of Contract Act, which are inconsistent with the fundamental rights guaran teed in Part III of 162 the Constitution, are void by operation of Article 13 of the Constitution. The law of contract, like the legal system itself, involves a balance between competing sets of values. Freedom of contract emphasises the need for stability. certainty and predictability. But, important as values are. they are not absolute, and there comes a point when they face a serious challenge. 'This Court, as a court of consti tutional conscience enjoined and is jealously to project and uphold new values in establishing the egalitarian social order. As a court of constitutional functionary exercising equity jurisdiction, this Court would relieve the weaker parties from unconstitutional contractual obligations, unjust, unfair, oppressive and unconscionable rules or conditions when the citizen is really unable to meet on equal terms with the State. It is to find whether the citi zen, when entered into contracts of service, was in distress need or compelling circumstances to enter into contract on dotted lines or whether the citizen was in a position of either to "take it or leave it" and if it finds to be so, this Court would not shirk to avoid the contract by appro priate declaration. [302G, 303B, 304H, 305A B] Central Inland Water Transport Company Limited vs Brojo nath Ganguly, 1986 SC 1571, affirmed. Ramdas Vithaldas Durbar vs section Amarchand & 60., 43 Indian Appeals. 164 and V. Raghunadha Rao vs State of Andhra Pra desh, , referred to. Anson 's Law of Contract, p. 6 and 7 and Professor Guido Calabresi of Yale University Law School "Refractivity, Paramount power and Contractual Changes", 1961 62 71 Yale Law Journal, P 1191, referred to. 2.1 The golden rule of statutory construction is that the words and phrases or sentences should be interpreted according to the intent of the legislature that passed the Act. All the provisions should be read together. If the words of the statutes are in themselves precise and unambig uous, the words, or phrases or sentences themselves alone do, then no more can be necessary than to expound those words or phrases or sentences in their natural and ordinary sense. But if any doubt arises from the terms employed by the legislature, it is always safe means of collecting the intention, to call in aid the ground and cause of making the statute, and have recourse to the preamble, which is a key to open the minds of the makers of the statute and the mischiefs which the Act intends to redress. In determining the meaning of statute the first question to ask always is what is the natural or ordinary meaning of that 163 word or phrase in its context. It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intent of the legislature, then it is proper to look for some other possible meaning and the court cannot go further. [323D G] 2.2 The Doctrine of Reading Down is, therefore, an internal aid to construe the word or phrase in a statute to give reasonable meaning, but not to detract, disort or emasculate the language so as to give the supposed purpose to avoid unconstitutionality. Thus, the object of reading down is to keep the operation of the statute within the purpose of the Act and constitutionally valid. [324E, 325B] 2.3 It cannot be accepted that the Courts, in the proc ess of interpretation of the Statute, would not make law but leave it to the legislature for necessary amendments. In an appropriate case, Judges would articulate the inarticulate major premise and would give life and force to a Statute by reading harmoniously all the provisions ironing out the creezes. The object is to elongate the purpose of the Act. [323B] 2.4 The Courts, though, have no power to amend the law by process of interpretation, but do have power to mend it so as to be in conformity with the intendment of the legis lature. Doctrine of reading down is one of the principles of interpretation of statute in that process. But when the offending language used by the legislature is clear, precise and unambiguous, violating the relevant provisions in the constitution, resort cannot be had to the doctrine of read ing down to blow life into the void law to save it from unconstitutionality or to confer jurisdiction on the legis lature. Similarly it cannot be taken aid of to emasculate the precise, explicit, clear and unambiguous language to confer arbitrary, unbridled and uncanalised power on an employer which is a negation to just, fair and reasonable procedure envisaged under Articles 14 and 21 of the Consti tution and to direct the authorities to record reasons, unknown or unintended procedure. [326H, 327A B] Elliott Ashton Walsh, H vs United States, ; ; Nalinakhya Bysack vs Shyam Sunder Haldar & Ors., ; at 544 45; United States vs Wunderlick, ; S.C. Jaisinghani vs Union of India, ; ; In re Hindu Women 's Right to Property Act, ; K.N. Singh vs State of Bihar, [1962] Suppl. 2 SCR 769; R.L. Arora vs State of U.P., ; ; Jagdish Pandev vs Chan cellor of the Bihar, ; Amritsar Municipality vs State of Punjab, ; ;Sunil Batra vs Delhi Admn., ; ; N.C. Dalwadi vs State of Gujarat, [1987] 3 164 SCC 611; Charanlal Sahu vs Union of India, [1989] Suppl. Scale 1 at p. 61; Delhi Transport Undertaking vs Balbir Saran Goel, ; Air India Corporation vs Rebellow; , and Municipal Corporation of Greater Bombay vs P.S. Malvankar, ; , re ferred to. Federal Steam Navigation Co. vs Department of Trade and Industry, at p. 100 and Saints High School, Hyderabad vs Govt. of A. P., ; , re ferred to. Craies Statute Law, 7th Ed. V, P. 64. 2.5 The language of Regulation 9(b) is not capable of two interpretations. This power is in addition to the normal power in Regulation 15 to conduct an enquiry into misconduct after giving reasonable opportunity. Thereby the legislative intention is manifest that it intended to confer such draco nian power couched in language of width which hangs like Damocles sword on the neck of the employee, keeping every employee on tenter hook under constant pressure of uncer tainty, precarious tenure at all times right from the date of appointment till date of superannuation. It equally enables the employer to pick and choose an employee at whim or vagary to terminate the service arbitrarily and capri ciously. Regulation 9(b), thereby deliberately conferred wide power of termination of services of the employee with out following the principles of audi alteram partem or even modicum of procedure of representation before terminating the services of permanent employee. [327E G] 2.6 No doubt, the power to take appropriate and expedi tious action to meet the exigencies of weeding out ineffi cient, corrupt, indolent officers or employees from service should be provided and preserved to the competent authority but any action taken without any modicum of reasonable procedure and prior opportunity always generates an un quenchable feeling that unfair treatment was meted out to the aggrieved employee. To prevent miscarriage of justice or to arrest a nursing grievance that arbitrary whimsical or capricious action was taken behind the back of an employee without opportunity, the law must provide a fair, just and reasonable procedure as is exigible in a given circumstance as adumbrated in proviso to article 311(2) of the Constitution. If an individual action is taken as per the procedure on its own facts its legality may be tested. But it would be no justification to confer power with wide discretion on any authority without any procedure which would not meet the test of justness, fairness and reasonable 165 ness envisaged under articles 14 and 21 of the Constitution. Therefore, conferment of power with wide discretion without any guidelines, without any just, fair or reasonable proce dure is constitutionally anathema to articles 14, 16(1), 19(1)(g) and 21 of the Constitution. Doctrine of reading down cannot be extended to such a situation. [328A C, 329B C] 2.7 In view of the march of law, made by Article 14 it is too late in the day to contend that the competent author ity would be vested with wide discretionary power without any proper guidelines or the procedure. When it is found that the legislative intention is unmistakably clear, unam biguous and specific, the preamble, the other rules and the circumstances could not be taken aid of in reading down the provisions of the rules or the regulations of the constitu tional scheme. [330F G] 3.1 The phrases "public policy", opposed to public policy, or "contrary to public policy" are incapable of precise definition. It is valued to meet the public good or the public interest. What is public good or in the public interest or what would be injurious or harmful to the public good or the public interest vary from time to time with the change of the circumstances. Therefore, in the absence of specific head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest invent new public policy and declare such practice or rules that are derogatory to the constitution to be opposed to public policy. The rules which stem from the public policy must of necessity be laid to further the progress of the society, in particular when social change is to bring about an egalitar ian social order through rule of law. In deciding a case which may not be covered by authority, courts have before them the beacon light of the trinity of the Constitution viz., the preamble, Part III and Part IV and the play of legal light and shade must lead on the path of justice social, economic and political. Lacking precedent, the court can always be guided by that light and the guidance thus shed by the trinity of our Constitution. [308C D, 309G H, 310A] 3.2 Since Constitutions are the superior law of the land, and because one of their outstanding features is flexibility and capacity to meet changing conditions, con stitutional policy provides a valuable aid in determining the legitimate boundaries of statutory meaning. Thus public policy having its inception in Constitutions may accomplish either a restricted or extended interpretation of the liter al expression of a statute. A statute is always presumed to be constitutional and where necessary, a constitutional meaning will be inferred to preserve validity. Likewise, where a statute tends to extend or preserve a constitutional 166 principle, reference to analogous constitutional provisions may be of great value in shaping the statute to accord with the statutory aim or objective. Therefore, when the provi sions of an Act or Regulations or Rules are assailed as arbitrary, unjust, unreasonable, unconstitutional, public law element makes it incumbent to consider the validity thereof on the anvil of inter play of articles 14, 16(1), 19(1)(g) and 21 and of the inevitable effect of the provi sion challenged on the rights of a citizen and to find whether they are constitutionally valid. [310C D, 311E] 4. The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, dis cretion, when conferred upon executive authorities, must be confined within defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any princi ple or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. [328D E] 5. No doubt, it is open to the authorities to terminate the services of a temporary employee without holding an enquiry. But in view of the march of law made, viz., that it is not the form of the action but the substance of the order which is to be looked into, it is open to the Court to lift the veil and pierce the action challenged to find whether the said action is the foundation to impose punishment or is only a motive. The play of fair play is to secure justice procedural as well as substantive. The substance of the order, the effect thereof is to be looked into. [330C D] Shamsher Singh vs State of Punjab, , re ferred to. It is for concerned authorities to make appropriate rules or regulations and to take appropriate action even without resorting to elaborate enquiry needed consistent with the constitutional scheme. [331A] Workmen of Hindustan Steel Ltd. vs Hindustan Steel Ltd. & Ors. ; , , referred to. Ram Chander vs Union of India, , referred to. The ratio in Brojonath 's case was correctly laid down and requires no reconsideration. [331D] 167 Central Inland Water Transport Company Limited vs Brojo nath Ganguly, , affirmed. Per Mukharji, CJ., (Contra) 1. The constitutionality of the conferment of power to terminate services of a permanent employee without holding an enquiry is sustained by reading that the power must be exercised on reasons relevant for the efficient running of the services or performing of the job by the societies or the bodies. It should be done objectively, the reasons should be recorded, and the basis that it is not feasible or possible reasonably to hold any enquiry without disclosing the evidence which in the circumstances of the case would be hampering the running of the institution. The reasons though recorded, need not be communicated, it is only for the purpose of running of the institution. There should be factors which hamper running of the institution without the termination of the employment of the employee concerned at the particular time, either because he is a surplus or inefficient, disobedient and dangerous. [235C E] 2.1 The philosophy of the Indian Constitution, as it has evolved, from precedent to precedent, has broadened the horizons of the right of the employees and they have been assured security of tenures and ensured protection against arbitrariness and discrimination in discharge or termination of his employment. This is the basic concept of the evolu tion from the different angles of law of master and servant or in the evolution of employer and employee relationship. It is true that the law has traveled in different channels, government servants or servants or employees having status have to be differentiated from those whose relationships are guided by contractual obligations. However, the basic and fundamental question to be judged is, in what manner and to what extent, the employees of either of semi Government or statutory corporations or public undertakings who enjoy the rights, privileges, limitations and inhibitions of institu tions who come within the ambit of Article 12 of the Consti tution could be affected in their security of tenure by the employers consistent with the rights evolved over the years and rights emanating from the philosophy of the Constitution as at present understood and accepted. [229D G] 2.2 Efficiency of the administration of these undertak ings is very vital and relevant consideration. Production must continue, services must be maintained and run. Efficacy of the services can be manned only by the disciplined em ployees or workers. Discipline. decency and 168 order will have to be maintained. Employees should have sense of participation and involvement and necessarily sense of security in semipermanent or quasi permanent or permanent employment. There must be scope for encouragement for good work. In what manner and in what measure, this should be planned and ensured within the framework of the Constitution and, power mingled with obligations, and duties enjoined with rights, are matters of constitutional adjustment at any particular evolved stage of the philosophy of our Constitu tion. [230A C] 2.3 Arbitrary, whimsical or discriminatory action can flow or follow in some cases by the preponderance of these powers to terminate. The tact that the power is entrusted with a high ranking authority or body is not always a safe or sound insurance against misuse. At least, it does not always ensure against erosion of credibility in the exercise of the power in particular contingency. Yet discipline has to be maintained, efficiency of the institution has to be ensured. It has to be recognised that quick actions are very often necessary in running of an institution or public service or public utility and public concern. It is not always possible to have enquiry because disclosure is diffi cult; evidence is hesitant and difficult, often impossible. In those circumstances, the approach to the location of power, possession and exercise of which is essential for efficient running of the industries or services, has to be a matter both of balancing and adjustment, on which one can wager the salivation of rights and liberties of the employ ees concerned and the future of the industries or the serv ices involved. [330D F] 2.4 The power to terminate the employment of permanent employment must be there. Efficiency and expediency and the necessity of running an industry or service make it impera tive to have these powers. Power must, therefore, be with authorities to take decision quickly, objectively and inde pendently. Power must be assumed with certain conditions of duty. The preamble, the policy, purpose of the enacting provision delimit the occasions or the contingencies for the need for the exercise of the power and these should limit the occasions of exercise of such powers. The manner in which such exercise of power should be made should ensure fairness, avoid arbitrariness and mala fide and create credibility in the decisions arrived at or by exercise of the power. All these are essential to ensure that power is fairly exercised and there is fair play in action. Reasons good and sound, must control the exercise of power. [230G H, 231A] Thus, for the running of the industry or the service, effi ciently, 169 quickly and in a better manner or to avoid dead locks or inefficiency or friction, the vesting of the power in cir cumstances must be such that it will evoke credibility and confidence. Notice of hearing and opportunity in the form of an enquiry may or may not be given, yet arbitrariness and discrimination and acting whimsically must be avoided. These powers must, therefore, be so read that the powers can be exercised on reasons, which should be recorded, though need not always be communicated, and must be by authorities who are high ranking or senior enough and competent and are expected to act fairly, objectively and independently. The occasion for the use of power must be clearly circumscribed in the above limits. These must also circumscribe that the need for exercise of those powers without holding a detailed or prolonged enquiry is there. [231E, F G] Workmen of Hindustan Steel Ltd. & Anr. vs Hindustan Steel Ltd. & Ors. , ; ; West Bengal State Electricity Board and Others vs Desh Bandhu Ghosh and Oth ers, [1985] 3 SCC 116; Moti Ram Deka vs North East Frontier Railway, ; S.S. Muley vs J.R.D. Tata, ; Manohar P. Kharkhar vs Raghuraj, ; Central Inland Water Transport Corporation Limited and Anr. vs Brojo Nath Ganguly and Anr., ; Sukhdev Singh vs Bhagatram Sardar Singh Raghuvanshi, ; ; Union of India & Anr. vs Tulsi Ram PateI, [1985] Suppl. 2 SCR 131 at p. 166; Tata Oil Mills Co. Ltd. vs Workmen & Anr., ; at 130; L. Michael & Anr. vs M/s Johnston Pumps India Ltd.; , at 498; Delhi Transport Corporation Undertaking vs Balbir Saran Goel, ; at 764; Air India Corporation, Bombay vs V.A. Rebellow & Anr., ; ; Municipal Corpo ration of Greater Bombay vs P.S. Malvenkar & Ors., ; at page 1006; Roshan Lal Tandon vs Union of India, ; at 195 D E; Champak Lal Chiman Lal Shah vs The Union of India, at 204; Ram Gopal Chaturvedi vs State of M.P., ; at 475; Gheru Lal Parekh vs Mahadeodas Maiva & Others, [1959] Supp. 2 SCR 406 at 440; O.P. Bhandari vs I.T.D.C. & Ors., ; ; The Hindu Women 's Rights to Property Act, ; Fertilizer Corporation Kamgar Union (Regd.) Sindri and Others vs Union of India and Others, [1981] 2 SCR at 60 61; Ajay Hasia etc. vs Khalid Mujib Sehravardi & Ors. etc.; , at 100 102; A.V. Nachane & Anr. vs Union of India & Anr. , ; ; India Tobacco Co. Ltd. vs The Commercial Tax Officer, Bhavanipore & Ors., at 657; A.L. Kalra vs The Project and Equipment Corpora tion of India Ltd.; , at 664; Bandhua Mukti Morcha vs Union of India & Ors., [1984] 2 170 SCR 79 at 101; Hindustan Antibiotics Ltd. vs The Workmen & Ors. , ; at 669; The Collector of Customs, Madras vs Nathella Sampathu Chetty, ; at 825; Commissioner of Sales Tax, Madhya Pradesh vs Radhakrishan & Ors., (supra); Gurdev Singh Sidhu vs State of Punjab & Anr., ; at 592 593; U.P. State Electricity Board vs Hari Shankar Jain, ; A.R. Antulay vs R.S. Nayak and Anr., ; ; S.G. Jaisinghani vs Union of India and Ors., ; at p. 718 19 and Kesavananda Bharati vs State of Kerala, [1973] Supp. 1 SCR 1, referred to. A. Schroeder Music Publishing Co. Ltd. vs Macaulay, (formerly Instone), , referred to. Chitty on Contract, 46th Edition Vol. II, p. 808 or 25th Edition Vol. II p. 712 paragraph and Halsbury 's Law of England, 4th Edition Vol. No. 16 paras 607 and 608, referred to. 3.1 Courts have been tempted to read down in the path of judicial law making on the plea that legislature could not have intended to give powers to the authorities or employers which would be violative of fundamental rights of the per sons involved in the exercise of those powers and, there fore, should be attributed those powers on conditions which will only make these legal or valid. Our law making bodies are not law unto themselves and cannot create or make all laws. They can only confer powers or make laws for the conferment of powers on authorities which are legal and valid. Such powers conferred must conform to the constitu tional inhibitions. [232C D] 3.2 Legislation, both statutory and constitutional, is enacted from experience of evils. But its general language should not necessarily be confined to the form that the evil had taken place. Time works changes, brings into existence new conditions and purposes and new awareness of limita tions. Therefore, a principle to be valid must be capable of wider application than the mischief which gave it birth. This is particularly true of the constitutional construc tions. Constitutions are not ephemeral enactments designed to meet passing occasions, but designed to approach immor tality as nearly as human institutions can approach it. In the application of a Constitutional limitation or inhibi tion, the interpretation cannot be only of 'what has been ' but of 'what may be '. Therefore. in the interpretation of the provisions of an Act, where two constructions are possi ble, the one which leads towards constitutionality of the legislation would be preferred to that which has the effect of 171 destroying it. If the Courts do not read the conferment of power in the aforesaid manner, the power is liable to be struck down as bad. [233B D] 3.3 The Court must proceed on the premise that the law making authority intended to make a valid law to confer power validly or which will be valid. The freedom therefore, to search the spirit of the enactment or what is intended to obtain or to find the intention of parliament gives the Court the power to supplant and supplement the expressions used to say what was left unsaid. This is an important branch of judicial power, the concession of which if taken to the extreme is dangerous, but denial of that power would be ruinous and this is not contrary to the expressed inten tion of the legislature or the implied purpose of the legis lation. [234G H; 235A] 3.4 It has been said that if the legislature has mani fested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. This cannot be agreed to. Our legis latures are limited by the constitutional inhibitions and it is made, that the Court should read their Acts and enact ments with the attribute that they know their limits and could not have intended to violate the Constitution. It is true that the Court should be loath to read down where there are clear, unambiguous and positive terms in a legislation and should proceed with a straight forward method of strik ing down such legislations. But where the statute is silent or not expressive or inarticulate, the Court must read down in the silence of the statute and in the inarticulation of its provisions, the Constitutional inhibitions and transmute the major inarticulate premise into a reality and read down the statute accordingly. [236H, 237A B] 3.5 The plain thrust of legislative enactment has to be found out in the inarticulate expressions and in the silence of the legislation. In doing so, to say what the legislature did not specifically say is not distortion to avert any constitutional collision. [237E] In the language of the relevant provisions of the instant cases, there is no intention of the legislature to flout the constitutional limitations. [237E] Elliot Ashto Welsh 11 vs United States; , , 26 Ed. 308, referred to. 3.6 It is not that the reading down is used for a purpose which is just the opposite which the legislature had intended. Legislature had not 172 intended arbitrary or uncontrolled or whimsical power. Indeed it considered. This is not the proper way to read that power in the Regulation 9(b). Para 522 of the Shastri Award, read properly, must be circumscribed with the condi tions indicated above as a necessary corollary or conse quence of that power. It is also not reading to the legisla ture conditions which were not there in the second proviso to Article 311(2) of the Constitution. [237H, 238A B] Union of India & Anr. vs Tulsiram Patel, [1985] Supp. 2 SCR 131, relied on. No doubt, absolute powers cannot be regulated without essential legislative policy, but in the instant cases properly read, absolute power was not there. Power that was only constitutionally valid, that power can be presumed to have been given and if that presumption is made, conditions indicated above inevitably attach. But these conditions are necessary corollary flowing from the conferment of the power of termination in a constitutional manner for the smooth, proper and efficient running of the industry. [238C, E] 3.7 In the circumstances power must be there, the power must be read down in the manner and to the extent indicated above, of terminating the services of permanent employees without holding any enquiry in the stated contingencies and this would be either by virtue of the silence of the provi sion indicating the contingencies of termination or by virtue of constitutional inhibitions. That reading would not violate the theory that judges should not make laws. [238F G] Shri Ram Krishna Dalmia vs Justice Tandolkar, ; at 299; Jyoti Prasad vs The Administrator for the Union Territory of Delhi, ; at 139; Union of India vs Col. J.N. Sinha & Anr., ; at 461; N.C. Dalwadi vs State of Gujarat, paragraphs 9 and 10 at page 619; Commissioner of Sales Tax, M.P., Indore & Ors. vs Radhakrishan & Ors. , ; at 257; Olga Tellis & Ors. etc. vs Bombay Municipal Corporation & Ors., [1985] Suppl. 2 SCR 51 at 89; R.M.D. Chamarbaugwalla vs Union of India; , at p. 935 and 938; Kedar Nath Singh vs State of Bihar, [1962] Supp. 2 SCR 769; R.L. Arora vs State of Uttar Pradesh, ; ; Jagdish Pandev vs The Chancellor, University of Bihar & Anr., ; , at pages 236 237; Sunil Batra vs Delhi Administration & Ors., ; ; Tinsukhia Electric Supply Co. Ltd. vs State of Assam & Ors., ; ; Charan Lal Sahu & Ors. vs Union of India, , at 173 pages 53 and 54, paras 101 as well as p. 61 para 114; Shah & Co. vs State of Maharashtra, ; at 477 78; M. Pentiah and Ors. vs Veera Mallappa and Ors., ; ; Bangalore Water Supply and Sewerage Board etc. vs A. Rajappa & Ors., ; ; Minerva Mills Ltd.& Ors., vs Union of India & Ors. , ; , at p. 239 and 259; Elliott Ashton Welsh, 11 vs United States, 26 Lawyers ' Edition 2nd, 308 at 327; Malinakhva Bysack vs Shyam Sunder Haldar & Ors., ; , at p. 544 545 and Municipal Committee, Amritsar & Anr. vs State of Punjab & ors. ; , , referred to. United States of America vs Edward A. Rumely, 97 Law yers Edition 770 at 775; Reg. vs Sadiers Co., ; , 460 and 463; Framamus vs Film Artists Association, at 542 and Seaford Court Estates, , referred to. H.M. Seervaid 'Constitutional Law of India ', 3rd Edn. 1 pages 119 120 and Lord Denning: "The discipline of Law", at p. 12, referred to. 3.8 Termination simpliciter under Regulation 9(b) of the Regulation 1952, Delhi Road Transport Authority (Conditions of Appointment and Services) or similar powers can be exer cised only in circumstances other than those in Regulation 9(a). The exercise of such powers can only be for purposes germane and relevant to the statute, viz., the employee is incompetent or unsuitable so as to make his continuance in the employment detrimental to the interest of the institu tion, or where the continuance of the employee is a grave security risk making his continuance detrimental to the interest of the Corporation and where because of the conduct of the employee, or there is lack of confidence in the employee which makes it necessary in the interest of the Corporation to immediately terminate the services of the employee etc., etc. Therefore, each case of conferment of power involved should be judged on the aforesaid basis. [236E G] 3.9 Having regard to the finality of the position of law and having regard to the theory that parties have ad justed their rights on the understanding of the law as it was, justice of the situation would be met if pending liti gations are examined and disposed of in the light of afore said principles. Where issues of damages or consequences of termination by virtue of exercise of the power are still pending adjudication in any forum and have been finally adjudicated, these should be re examined by the appropriate authorities before whom these issues 174 are pending, but previous terminations, where no lis is pending, will not be reopened. To that extent, the law will be prospective. [239D F] 4. This Court. under Article 141 of the Constitution, is enjoined to declare law. The expression 'declared ' is wider than the words 'found or made '. To declare is to announce opinion. Indeed, the latter involves the process. while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as a law. The law de clared by this Court is the law of the land. To deny this power to this Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country. Therefore. there should be a more active and creative role for the courts in declaring what the law is. [240E G] 1. C. Golaknath & Ors. vs State of Punjab & Anr. , ; @ 811,813/84, referred to.

Appeal No.193 of 1958. Appeal by special leave from the judgment and decree dated October 3, 1955, of the High Court of Judicature, Madhya Bharat, Indore, in Civil First Appeal No. 58 of 1952. C. B. Aggarwala and Bhagwan Das Jain, for the appellant. Radhey Lal Aggarwal and A. G. Ratnaparkhi, for respondent No. 1. 1961. March 29. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave from the judgment of the High Court of Madhya Bharat. A suit was filed by firm Messrs. Harishchandra Dwarkadas (hereinafter called the respondent) against the appellant firm Messrs. Murlidhar Chiranjilal and one Babulal. The case of the respondent was that a contract had been entered into between the appellant and the respondent through Babulal for sale of certain canvas at Re. I per yard. The delivery was to be made through railway receipt for Calcutta f. o. r. Kanpur. The cost of transport from Kanpur to Calcutta and the labour charges in that connection were to be borne by the respondent. It was also agreed that the railway receipt would be delivered on August 5, 1947. The appellant however failed to 655 deliver the railway receipt and informed the respondent on August 8, 1947, that as booking from Kanpur to Calcutta was closed the contract had become impossible of performance; consequently the appellant cancelled the contract and returned the advance that had been received. The respondent did not accept that the contract had become impossible of performance and informed the appellant that it had committed a breach of the contract and was thus liable in damages. After further exchange of notices between the parties, the present suit was filed in November, 1947. Written statements were filed both by the appellant and Babulal. The contention of Babulal was that the contract had become incapable of performance and was therefore rightly rescinded. Further Babulal contended that he was not in any case liable to pay any damages. The appellant on the other hand denied all knowledge of the contract and did not admit that it was liable to pay any damages. Certain other pleas were raised by the appellant with which we are however not concerned in the present appeal. Three main questions arose for determination on the pleadings of the parties. The first was whether Babulal had acted as agent of the appellant in the matter of this contract; the second was whether the contract had become impossible of performance because the booking of goods from Kanpur to Calcutta was stopped; and the last was whether the respondent was entitled to damages at the rate claimed by it. The trial court held that Babulal had acted as the agent of the appellant in the matter of the contract and the appellant was therefore bound by it. It further hold that the contract had become impossible of performance. Lastly it hold that it was the respondent 's duty when the appellant had failed to perform the contract to buy the goods in Kanpur and the respondent had failed to prove the rate prevalent in Kanpur on the date of the breach (namely, August 5, 1947) and therefore was not entitled to any damages. On this view the suit was dismissed. The respondent went in appeal to the High Court 656 and the two main questions that arose there were about the impossibility of the performance of the contract and the liability of the appellant for damages. The High Court held that the contract had not become impossible of performance as it had not been proved that the booking between Kanpur and Calcutta was closed at the relevant time. It further held that the respondent was entitled to damages on the basis of the rate prevalent in Calcutta on the date of breach and after making certain deductions decreed the suit for Rs. 16,946. Thereupon there was an application by the appellant for a certificate to appeal to this Court, which was rejected. This was followed by an application to this Court for special leave which was granted; and that is how the matter has come up before us. The same two questions which were in dispute before the High Court have been raised before us on behalf of the appellant. We think it unnecessary to decide whether the contract had become impossible of performance, as we have come to the conclusion that the appeal must succeed on the other point raised on behalf of the appellant. The necessary facts in that connection are these: The contract was to be performed by delivery of railway receipt f. o. r. Kanpur by the appellant to the respondent on August 5, 1947. This was not done and therefore there was undoubtedly a breach of the contract on that date. The question therefore that arises is whether the respondent has proved the damages which it claims to be entitled to for the breach. The respondent 's evidence on this point was that it proved the rate of coloured canvas in Calcutta on or about the date of the breach. This rate was Rs. 1 8 3 per yard and the respondent claimed that it was therefore entitled to damages at the rate of Re. 0 8 3 per yard, as the contract rate settled between the parties was R.s. 1 per yard, The quantum of damages in a case of this kind has to be determined under section 73 of the Contract Act, No. IX of 1872. The relevant part of it is as follows: 657 "When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. " Explanation In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non performance of the contract must be taken into account. " The contention on behalf of the appellant is that the contract was for delivery f. o. r. Kanpur and the respondent had therefore to prove the rate of plain (not coloured) canvas at Kanpur on or about the date of breach to be entitled to any damages at all. The respondent admittedly has not proved the rate of such canvas prevalent in Kanpur on or about the date of breach and therefore it was not entitled to any damages at all, for there is no measure for arriving at the quantum of damages on the record in this case. Where goods are available in the market, it is the difference between the market price on the date of the breach and the contract price which is the measure of damages. The appellant therefore contends that as it is not the case of the respondent that similar canvas was not available in the market at Kanpur on or about the (late of breach, it was the duty of the respondent to buy the canvas in Kanpur and rail it for Calcutta and if it suffered any damage because of the rise in price over the contract price on that account it would be entitled to such damages. But it has failed to prove the rate of similar canvas in Kanpur on the relevant date. There is thus no way in which it can be found that the respondent suffered any damage by the breach of this contract. The two principles on which damages in such cases are calculated are well settled. The first is that, as far as possible, he who has proved a breach of a bargain . 83 658 to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed; but this principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable step" to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps: (British Westinghouse Electric and Manufacturing Company Limited vs Underground Electric Railways Company of London (1)). These two principles also follow from the law as laid down in section 73 read with the Explanation thereof If therefore the contract was to be performed at Kanpur it was the respondent 's duty to buy the goods in Kanpur and rail them to Calcutta on the date of the breach and if it suffered any damage thereby because of the rise in price on the date of the breach as compared to the contract price, it would be entitled to be reimbursed for the loss. Even if the respondent did not actually buy them in the market at Kanpur on the date of breach it would be entitled to damages on proof of the rate for similar canvas prevalent in Kanpur on the date of breach, if that rate was above the contracted rate resulting in loss to it. Bat the respondent did not make any attempt to prove the rate for similar canvas prevalent in Kanpur on the date of breach. Therefore it would obviously be not entitled to any damages at all, for on this state of the evidence it could not be said that any damage naturally arose in the usual course of things. But the learned counsel for the respondent relies on that part of section 73 which says that dam ages may be measured by what the parties knew when they made the contract to be likely to result from the breach of it. It is contended that the contract clearly showed that the goods were to be transported to and sold in Calcutta and therefore it was the price in Calcutta which would have to be taken into account in arriving at the measure of damages for the parties knew when they made the contract that the goods were to be sold in Calcutta. Reliance in this connection is placed on (1) 689. 659 two cases, the first of which is Re. R. and H. Hall Ltd. and W. H. Pim (Junior) & Co. 's Arbitration (1). In that case it was held that damages recoverable ' by the buyers should not be limited merely to the difference between the contract price and the market price on the date of breach but should include both the buyers ' own loss of profit on the resale and the damages for which they would be liable for their breach of the contract of resale, because such damages must reason ably be supposed to have been in the contemplation of the parties at the time the contract was made since the contract itself expressly provided for are sale before delivery, and because the parties knew that it was not unlikely that such resale would occur. 'That was a case where the seller sold unspecified cargo of Australian wheat at a fixed price. The contract provided that notice of appropriation to the contract of a specific cargo in a specific ship should be given within a specified time and also contained express provisions as to what should be done in various circumstances if the cargo should be resold one or more times before delivery. That was thus a case of a special type in which both buyers and seller knew at the time the contract was made that there was an even chance that the buyers could resell the cargo before delivery and not retain it themselves. The second case on which reliance was placed is Victoria Laundry (Windsor) Ltd. vs Newman Industries Ltd, (2). That was a case of a boiler being sold to a laundry and it was held that damages for loss of profit were recoverable if it was apparent to the defendant as reasonable persons that the delay in delivery was liable to lead to such loss to the plaintiffs. These two cases exemplify that provision of section 73 of the Contract Act, which provides that the measure of damages in certain circumstances may be what the parties knew when they made the contract to be likely to result from the breach of it. But they are cases of a special type; in one case the parties knew that goods purchased were likely to be resold before delivery and therefore any loss by the breach of contract eventually (1) (2) 660 may include loss that may have been suffered by the buyers because of the failure to honour the intermediate contract of resale made by them; in the other the goods were purchased by the party for his own business for a particular purpose which the sellers were expected to know and if any loss resulted from the delay in the supply the sellers would be liable for that loss also, if they had knowledge that such loss was likely to result. The question is whether the present is a case like these two cases at all. It is urged on behalf of the respondent that the seller knew that the goods were to be sent to Calcutta; therefore it should be presumed to know that the goods would be sold in Calcutta and any loss of profit to the buyer resulting from the difference between the rate in Calcutta on the date of the breach and the contract rate would be the measure of damages. Now there is no dispute that the buyer had purchased canvas in this case for resale; but we cannot infer from the mere fact that the goods were to be booked for Calcutta that the seller knew that the goods were for resale in Calcutta only. As a matter of fact it cannot be denied that it was open to the buyer in this case to sell the railway receipt as soon at it was received in Kanpnr and there can be no inference from the mere fact that the goods were to be sent to Calcutta that they were meant only for sale in Calcutta. It was open to the buyer to sell them any where it liked. Therefore this is not a case where it can be said that the parties knew when they made the contract that the goods were meant for sale in Calcutta alone and thus the difference between the price in Calcutta at the date of the breach and the contract price would be the measure of damages as the likely result from the breach. The contract was for delivery for Kanpur and was an ordinary contract in which it was open to the buyer to sell the goods where it liked. We may in this connection refer to the following observations in Chao and others vs British Traders and Shippers Ltd. (1), which are, apposite to the facts of the present case: (1) ,797. 661 "It is true that the defendants knew that the plaintiffs were merchants and, therefore, had bought for resale, but every one who sells to a merchant knows that he has bought for are sale, and it does not, as I understand it, make any difference to the ordinary measure of damages where there is a market. What is contemplated is that the merchant buys for are sale, but, if the goods are not delivered to him, he will go out into the market and buy similar goods and honour his contract in that way. If the market has fallen he has not suffered any damage, if the market has risen the measure of damages is the difference in the market price. " In these circumstances this is not a case where it can be said that the parties when they made the contract knew that the likely result of breach would be that the buyer would not be able to make profit in Calcutta. This is a simple case of purchase of goods for resale anywhere and therefore the measure of damages has to be calculated as they would naturally arise in the usual course of things from such breach. That means that the respondent had to prove the market rate at Kanpur on the date of breach for similar goods and that would fix the amount of damages, in case that rate had gone above the contract rate on the (late of breach. We are therefore of opinion that this is not a case of the special type to which the words "which the parties knew, when they made the contract, to be likely to result from the breach of it" appearing in section 73 of the Contract Act apply. This is ,in ordinary case of contract between traders which is covered by the words "which naturally arose in the usual course of things from such breach" appearing in section 73. As the respondent had failed to prove the rate for similar canvas in Kanpur on the date of breach it is not entitled to any damages in the circumstances. The appeal is therefore allowed, the decree of the High Court set aside and of the trial court restored with costs to the appellant throughout.

The appellant entered into a contract with the respondent for the sale of certain canvas at Re. 1 per yard under which the delivery was to be made through railway receipt for Calcutta for Kanpur. The cost of transport from Kanpur to Calcutta and the labour charges in that connection were to be borne by the respondent and it was agreed that the railway receipt would be delivered on August 5, 1947. The appellant was unable to deliver the railway receipt on the due date because booking from Kanpur to Calcutta was closed, and, therefore, cancelled the contract. The respondent instituted a suit for the recovery of damages for the breach of the contract and claimed that as the seller knew that the goods were to be sent to Calcutta and must therefore be presumed to know that the goods would be sold in Calcutta, any loss of profit to the buyer resulting from the difference between the rate in Calcutta on the date of the breach and the contract rate would be the measure of damages. Held: (1) that it is well settled that the two principles relating to compensation for loss or damage caused by breach of contract as laid down in section 73 Of the , read with the Explanation thereof, are (i) that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed, but (ii) that there is a duty on him of taking all reasonable steps to mitigate the loss consequent on the breach and debars him from claiming any part of the damage which is due to his neglect to take such steps. British Westinghouse Electric and Manufacturing Company, Limited vs Underground Electric Railway Company of London, , relied on. (2) that the contract in the present case was for delivery for. Kanpur in which it was open to the buyer to sell the goods where it liked, and no inference could be drawn from the mere fact that goods were to be booked for Calcutta that the seller knew that the goods were for resale in Calcutta only. The contract was therefore not of the special type to which the words "which the parties knew, when they made the contract, 654 to be likely to result from the breach of it" appearing in section 73 of the , would apply, but an ordinary contract, for which the measure of damages would be such as "naturally arose in the usual course of things from such breach" within the meaning of that section. The damages would be the difference between the market price in Kanpur on the date of breach and the contract price. But as the respondent bad failed to prove the rate for similar canvas in Kanpur on the date of breach, it was not entitled to any damages as there was no measure for arriving at the quantum. Chao and others vs British Traders and Shippers Ltd., , relied on. Re. R and H. Hall Ltd. and W.P. Pim (junior) & Co. 's Arbi tration, and Victoria Laundry (Winsdsor) Ltd.v. Newman Industries Ltd., , distinguished.

The assessee was running a business of plying buses and during its previous year ending on August 16, 1959, the buses had been plied for part of the year but were sold thereafter. The Income tax Officer assessed the difference between the sale price of the buses and their written down value to tax as profit under the second proviso to section 10(2) (vii). In appeal, the Appellate Assistant Commissioner rejected the assessee 's contention that the business had been transferred as a whole and therefore the profit in question could not be taxed. The Tribunal also dismissed an appeal taking the view that the buses had been plied by the assessee for part of the previous yea.r and the profit on the sale of these buses was taxable under the said provision. However, the High Court, upon a reference, held that the amount in question was not assessable as profit under section 10(2)(vii) on the assumption that the whole of the bus service business had been wound up during the relevant period. On appeal to this Court. HELD: allowing the appeal: Even on the assumption that the sale of the buses was a closing down or a realization sale it would nonetheless be taxable since the sale was made after the amendment of the second proviso. section 10(2)(vii) by Act 67 of 1949. [533 F G] According to the law laid down by this Court the view of the High Court would have been sustainable if the sale in the present case had been effected during the assessment year prior to the amendment of the proviso by Act 67 of 1949. The critical words which were inserted by that proviso namely, "whether during the continuance of the business or after the cessation thereof", must be given their proper meaning. It is quite plain that if the building, machinery or plant is sold during the continuance of the business or after the business ceases, the sale proceeds would be liable to tax in accordance with the proviso. When the legislature clearly provided that the proviso would apply even if the sale was made, after the cessation of the business, it is difficult to conceive that it was intended to exclude from the ambit of the proviso a sale made for the purpose of closing down the business or effecting its cessation. [535 F H] Commissioner of Income tax, Madras Iv. Express Newspapers Ltd., Madras, , 195; Commissioner of Income tax, Kerala vs West Coast Chemicals and Industries Ltd. ; Commissioner of Income tax, Kerala vs R.R. Ramakrishna Pillai, and The Liquidators of Pursa Limited vs Commissioner of Income tax, Bihar; , ; distinguished. Commissioner of Income tax vs Ajax Products Ltd., ; ; referred LI 3Sup. CI/68 3 532

The first respondent B purchased a Touzi in 24 Parganas Collectorate at a revenue sale held on 9th January, 1942. As such purchaser he acquired under section 37 of the Bengal Revenue Sales Act, 1859, the right "to avoid and annul all under tenures and forthwith to eject all under tenants" with certain exceptions which are not material here. In exercise of that right he gave notices of ejectment and brought a suit in 1946 to evict certain under tenants including the second respondent herein and to recover possession of the lands. The suit was decreed against the second respondent who preferred an appeal to the District Judge, 24 Parganas, contending that his under tenure came within one of the exceptions referred to in section 37. When the appeal was pending, the Bill which was later passed as the West Bengal Revenue Sales (West Bengal Amendment) Act, 1950, was introduced in the West Bengal Legislative ASsembly on 23rd March, 1950. It would appear, according to the "statement of objects and reasons" annexed to the Bill, that great hardship was being caused to a large section of the people by the application of section 37 of the Bengal Land Revenue Sales Act, 1859, in the urban areas and particularly in Calcutta and its suburbs where "the present phenomenal increase in land values has supplied the necessary incentive to speculative purchasers in exploiting this provision (section. 37) o/the law for unwarranted large scale eviction" and it was, therefore, considered necessary to enlarge the scope of protection already given by the section to certain categories of ,tenants with due safeguards for the security of Government revenue. The Bill was eventually passed as the amending Act and it came into force on 15th March, 1950. It substituted by section '4 the new section 37in place of the original section 37 and it provided by section 7 that all pending suits, appeals and other proceedings which had not already resulted in delivery of possession, shall abate. Thereupon B contending that section 7 was void 588 as abridging his fundamental rights under article 19(1)(f) and article 31 . moved the High Court under article 228 to withdraw the pending appeal and to determine the constitutional issue raised by him. The appeal was accordingly withdrawn and the case was heard by Trevor Harries C.J and Banerjee J. who, by separate but concurring Judgments, declared section 7 unconstitutional and void. They held that B 's right to annul under tenures and evict undertenants being a vested right acquired by him under his purchase before section 37 was amended, the retrospective deprivation of that right by section 7 of the amending Act without any abatement of the price paid by him at the revenue sale was an infringement of his fundamental right under article 19 (1)(f) to hold property with all the rights acquired under his purchase, and as such deprivation was not a reasonable restriction on the exercise of his vested right, section 7 was not saved by cl. (5) of that article and was void. The State of West Bengal preferred the present appeal to the Supreme Court: Held, per PATANJALl SASTRI C.J. Article 19 (1) (f) has no application to this case. The word "hold" in the article means own. The said sub clause (f) gives the citizen of India the abstract right to acquire, own and dispose of property. This article does not deal with the concrete fights of the citizens of India in respect of the property so acquired and owned by him. These concrete rights are dealt with in article 31 of the Constitution. Under the scheme of the Constitution all those broad and basic freedoms inherent in the status of a citizen as a free man are embodied and protected from invasion by the State under cl. (1)of article 19, the powers of State regulation of those freedoms in public interest being defined in relation to each of those freedoms by cls. (2) to (6) of that article, while rights of private property are separately dealt with and their protection provided for in article 31, the cases where social control and regulation could extend to the deprivation of such rights being indicated in para. (ii) of sub clause (b) of cl. (5) of article 31 and exempted. from liability to pay compensation under cl. Held, per PATANJALI SASTRI C.J. (MEHR CHAND MAHAJAN ' and GHULAM HASAN JJ. concurring) (i) Article 31 protects the right to property by defining the limitations on the power of the State to take away private property without the consent of the owner. Clauses (1) and (2) of article 31 are not mutually exclusive in scope and content, but should be read together and understood as dealing with the same subject, namely the protection of the right to property by means of limitations on the State 's power referred to above, the deprivation contemplated in clause (1) being no other than the acquisition or taking possession of the property referred to in cl. The words "taking of . . possession or . . acquisition" in article 31(2) and ' the words "acquisition or requisitioning" in entry 589 No. 33 of List I and entry No. 36 of List II as also the words "acquired or requisitioned" in entry No. 42 of List III are different expressions connoting the same idea and instances of different kinds of deprivation of property within the meaning of article 31(1) of the Constitution. No cut and dried test can be formulated as to whether in a given case the owner is "deprived" of his property within the meaning of article 31; each case must be decided as it arises on its own facts. Broadly speaking it may be said that an abridgement would be so substantial as to amount to a deprivation with in the meaning of article 31, .if, in effect, it withheld the property from the possession and enjoyment of the owner, or seriously impaired its use and enjoyment by him or materially reduced its value . The expression "taking possession" in art 31(2) of the Constitution can only mean such possession as the property taken possession of is susceptible to and need not be actual physical possession. ' (ii) It is difficult to hold that the abridgement sought to be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of article 31(1) and (2). No question accordingly arises as to the applicability of el. 5(b)(ii) of article 31 to the Per DAs J. (1) The abridgement of the rights of the purchaser at a revenue sale brought about by the new section 37 amounts to nothing more than the imposition of a reasonable restriction on the exercise of the right conferred by article 19(1)(f)in the interests of the general public and is perfectly legitimate and permissible under cl. (5) of that article. It is well settled that the statement of objects and reasons is not admissible as an aid to the construction of a statute but it can be referred to only for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill .to introduce the same and the extent and urgency of the. evil which he. sought to remedy. Those are matters which must enter into the judicial verdict as to the reasonableness of the restrictions which article 19(5) permits to be imposed on the exercise of the right guaranteed by article 19(1)(f). (II) The correlation between article 19(1)(f) and article 31 is that if a person loses his property by reason of its having been compulsorily acquired under article 31 he loses his right to hold that property and Cannot complain that .his fundamental right under article 19(1)(f)has been infringed. The rights enumerated in article 19(1) subsist while the citizen has the legal capacity to exercise them. A.K. Gopalan 's case ; and Chiranjit Lal 's case ; referred to. 590 For the purpose of this appeal the. matter proceeds on the footing that article 19 relates to abstract right as well as to right to concrete property. (III) The true scope and effect of cls. (1) and (2) of article 31 is that cl. (1) deals with deprivation of property in exercise of police power and enunciates the restrictions which our Constitution makers thought necessary or sufficient tO be placed on the exercise of that power, namely, that such power can be exercised only by authority of law and not by a mere executive fiat and that cl. (2)deals with the exercise of the power of eminent domain and places limitations on the exercise of that power. These limitations constitute our fundamental rights ' against the State 's power of eminent domain. (IV) Both these clauses cannot be regarded as concerned only with the State 's power of eminent domain, because then (a) cl (1) would be wholly redundant, for the necessity of a law is quite clearly implicit in cl. (2) itself; (b) deprivation of property otherwise than by taking of possession ' or acquisition of it will be outside. the pale of constitutional protection: (c) there will beno protection against the exercise of police power in respectOf property either by the executive or by the legislature. Chiranjit Lals case ; and The Bihar Zamindari case referred to. (V) The State 's police power is not confined (a) within the ambit of article 19 forto say otherwise ,will mean: (i) that there is no protection for any person, citizen or non citizen, against exercise of police power by the executive over property; (ii) that although in cls. (2) to (6) there is protection against ' (iei) legislature in respect of "restriction" there is no protection against "deprivation"; or (h) within d. (5) (b) of article 31 because to say otherwise will mean :__ (i) that the police power which is inherent in sovereignty and does not require express reservation has been unnecessarily defined and reserved; (ii) that the Constitution does not prescribe any test for the 'validity of the laws which fail within the clause and, therefore, the law failing within the clause may be as archaic, offensive and . unreasonable as the legislature may choose to make it; (iii) that the clause gives no protection against the executive; (iv) that the exercise of the police power by the legislature is confined within ' the very narrow and inelastic limits of the clause and that no beneficial or social legislation involving taking 591 of property can be undertaken by the State if the law falls outside the clause except on terms of payment of compensation; (v) that acqUiSition Of property for which compensation is Usually provided, e.g.; acquisition of land for a public park, hospital Or z 'dearing a slum area will henceforth be permissible without the law providing any compensation; (VI) The argument that if article 31(1) is read as a fundamental right against deprivation of property by the executive and article, 31(2) as laying down the Iimits of State 's power of eminent domain then there will be no real protection. whatever, for the State will deprive a person of his property without compensation by simply making a law is not tenable because (i) there will certainly be protection against the execute just as the 29th clause of the Magna Charts was a protection against the British Crown; (ii)" 'there is protection under article 31(2) against the legislature in the matter of taking of possession Or. acquisition for compensations to be given and under cl. (5) of art, 19 against unreasonable ' restraint: (iii) the absence of protection against the legislature in other cases is not greater than the absence of protection against the legislature in respect of taxation and if the legislature can be trusted in the latter case it may equally he ' trusted in the former case. (VII) Every taking of a thing into the custody of the State or its nominee does not necessarily mean the taking of possession Of that thing within the meaning of art 31(2) so as to call for compensation. The police power is exercised in the interest of the community and the power of eminent domain is exercised to . implement a public purpose and in both cases there is a taking of possession of private, property There is however a marked difference between the exercise of these two sovereign powers. It is easy to perceive, though somewhat difficult to express, the .distinction between the two kinds of taking of possession which undoubtedly exists. In view of the wide sweep of the State 's police power it is neither desirable nor possible to lay down a fixed general test for determining whether the taking of possession authorised by any particular. law falls within one category or the other. Without, therefore, attempting any such 'general enunciation of any inflexible rule it is possible to say broadly that the aim, purpose and the effect of the two kinds of taking of possession are different and that . in each "case the provisions of. the particular law in question" will have to 'be carefully scrutinised in order to determine in which category ' falls the taking of possession authorised by such law. = A consideration of the ultimate aim, the immediate purpose ::and the mode and manner of the taking 'of possession and, the duration". 'for which such possession . is taken, the effect of ' it ' on the rights of 'the person dispossessed and other such like elements must all determine the judicial verdict. 592 (VIII) Treating the right to annul under tenures and to eject under tenants .and decree for ejectment as "property" as used in article 31(2) the State has not acquired those rights for there has been no transfer by agreement or by operation of law of those rights from the respondent B to the State or anybody else. The purchase being at a Revenue sale to. which West Bengal Act VII of 1950 applies, the purchaser of the property has been deprived of this right by authority of law and the case falls within cl. (1) of article 31 and no Within cl. (2) of article 31. If the impugned section is regarded as imposing restrictions on the purchaser, such restrictions in the circumstances of the case are quite reasonable and permissible under article 19(5) and, in the premises, the _plea of unconstitutionality cannot prevail and must be rejected. Pet ' JAGANNADHADAS J. (i) On the assumption that the question raised in this case is one that arisesunder article 19(1)(f)and (5) of the Constitution, the impugned section of the West Bengal Act VII of 1950 is intra vires because the restrictions are reasonable within the meaning of article 19(5) of the Constitution; (ii) that article 19(1)(f) while probably meant to relate tot he natural rights of the citizens comprehends within the scope also concrete property rights. The restrictions on the exercise of rights envisaged in article 19(5) appear to relate normally, if not invariably to concrete property rights; (iii) that cl. (1).of article 31 cannot be construed as being either a declaration or implied recognition of the American doctrine of "police power". It comprehends within its scope the requirement of the authority of law, as distinguished from executive fiat for the exercise of the power of eminent domain, but its scope may well be wider. "Acquisition" and "taking possession" in article 31(2) cannot be taken as necessarily involving transfer of tide or possession. The words or phrases comprehend all cases where the title or possession is taken out of the owner and appropriated without his consent by transfer or extinction or by some other process, which in substance amounts to it, the possession in this context meaning such possession as the nature of the property admits and which the law recognizes as possession. (iv) In the context of article 31(2) as in the cognate context article 19(1)(f) the connotation of the word "property"is limited by the accompanying words "acquisition" and "taking possession". In the present. case the right to annul under tenures cannot in itself be treated as property for it is not capable of independent acquisition or possession. The deprivation of it can only amount to a restriction on the exercise of the fights as regards the main property itself and hence must fall under article 19(1)(f) taken with 19(5). Butchers Union etc. Co. vs Crescent City etc. Co.; , , Punjab Province vs Daulat Singh and Others ([1946] F.C.R. 1), Chiranjit Lal Chauduri vs The Union of India and Others ([1950] S.C.R. 869), A.K. Gopalan vs The State of Madras ([1950] S.C.R. 88), P.D. Shamdasani vs Central Bank of India ([1952] S.C.R. 391), Ministry of State. for the Army vs Dalziel ; , Pennsylvania Coal Co. vs Mahou , Dwarkadas Shrinivas vs Sholapur Spinning and Weaving Mills Ltd. ([1954] S.C.R. 674), ' State of Madras vs V.G. Row ([1952] S.C.R. 597), Ram Singh vs The State of Madras ([1951] S.C.R. 451), State of Bihar vs Maharajadhiraja Kameshwar Singh of Darbhanga ([1952] S.C.R. 889), Noble State Bank vs Haskeli ; , Eubank vs Richmond (226 U.S. 137), Ioseph Hurtado V. People of California (1883) (10 U.S. 516), referred to.

The appellant was using certain premises in Calcutta for storing rice flour, etc. without taking out any license under section 386(1)(a) of the Calcutta Municipal Act, 1923. The respondent filed a complaint against the appellant for a contravention of section 386(1)(a). The trial Magistrate acquitted the appellant holding that the provisions of section 386(1)(a), neither in terms nor by necessary implication bound the Government whom the appellant represented. In revision, the High Court held that the Government was bound by a statute unless the legislature excluded it expressly or by necessary implication. The High Court declined to follow the decision of the Privy Council in L. R. 73 1. A. 271 that the general principle applicable in England applied to Indian legislation also. Held, that the State was not bound by the provisions of section 386(1)(a) of the Calcutta Municipal Act, 1923, and that the appellant was not liable to be prosecuted for a contravention of this section. Per Sinha, C. J., Imam and Shah, jj. The law applicable to India before the Constitution was as authoritatively laid down by the Privy Council in L. R. 73 I. A. 271. The Constitution has not made any change in the legal position. On the other hand it has clearly indicated that the laws in force before January 26, 1950, shall continue to have validity even in the new set up except in so far as they were in conflict with the express provisions of the Constitution. The rule of interpretation of statutes that the State is not bound by a statute unless it is so provided in express terms or by necessary implication, is still good law. Province of Bombay vs Municipal Corporation of the City of Bombay, (1946) L.R. 73 I. A. 271, applied. Bell vs The Municipal Commissioners for the City of Madras, Mad. 457, disapproved. The Corporation of Calcutta vs Sub Postmaster, Dharmatala Post Office, , United States of America vs 159 United Mine Workers of America; , , United States of America vs Reginald P. Wittek, (1949) 93 L. Ed. 1406, Less Larson vs Domestic and Foreign Commerce Corporation, ; and Roberts vs Abern, (1904) I C. L. R. 406, referred to. There is nothing in the Act to indicate that the State was bound by it by necessary implication, nor is there anything in it to show that if section 386 were not held to apply to the State the law would lose it efficacy or that its working would be hampered in any way. Per Sarkar, J. The rule that the crown is not bound by the provisions of any statute unless it is directly or by necessary implication referred to is really a rule of construction of statutes and is not dependent on royal prerogatives. It has been applied by courts in India all along before the Constitution and there is no reason why it should not be applied to the interpretation of statutes after the Constitution. Attorney General vs Donaldson, ; , Coomber V ' justices of Berks; , , Roberts vs Ahern, (1904) I C.L.R. 406, United States vs United Mine Workers of America; , , United States vs The State of California, ; Bell vs The Municipal Commissioners for the City of Madras, Mad. 457, Mersey Docks vs Cameron, ; and Coomber vs Justice of Berks, , Greig vs University of Edinburgh, (1868) L. R. I H. L. (SC.) 348 and Cooper vs Hawkin section , referred to. Section 386(1)(a) does not bind the Government by necessary implication; the fact that certain provisions of the Act expressly exempt the Government does not raise the necessary implication. Nor would the purposes of the Act be defeated if the Government were not bound by it. Hornsey Urban Council vs Hennel, and Province of Bombay vs Municipal Corporation, Bombay, (1946) L.R. 73 1. A. 271, relied on. Per Wanchoo, J. The rule of construction which is based on the royal prerogative as known to the common law of England cannot be applied to India now when there is no crown in India and when the Common law of England is not applicable. The, proper rule of construction which should be applied now is that the state is bound by a statute unless it is exempted expressly or by necessasy implication. Province of Bombay vs Municipal Corporation of the City of Bombay, (1946) L. R. 73 1. A. 271, not applied. United States of America vs United Mine Workers of America, Etc., , United States of America vs Reginald P. Wittek; , , Jess Larson vs Domestic and Foreign 160 Commerce Corporation; , , H. Snowden Marshall vs People of the State of New York, (192O) 65 L. Ed. 315 and Guaranty Trust Company of New York vs United States of America, ; , referred to. The Calcutta Municipal Act, 1923, does not specifically exempt the State from its provisions, As the State cannot be sentenced to imprisonment it is exempt by necessary implication from all penal provisions providing for sentences of imprisonment or death. Further, where a statute provides for a fine and the fine goes to the State, the State is exempted from the provisions by necessary implication as it could never be the intention that such a prosecution should be launched. The prosecution in the present case is under section 488 which provides for a fine for a breach of section 386, and the fine when imposed and realised goes to the State. Consequently, the State is exempt from the penal provisions of section 488 of the Act by necessary implication.

The appellant assessee was a partnership firm carrying on business inter alia of manufacture and erection of cranes. During the assessment year 1965 66, the assessee entered into two contracts for supply and erection of 3 motion electrical overhead travelling cranes. The assessee carried out both the contracts and fabricated and erected 3 motion electrical overhead travelling cranes according to the contract specifications. A question arose in the assessment of the assessee to sales tax for the assessment year 1965 66 whether the amount of Rs. 1,34,500/ received by the assessee under the contract with M/s. Kamlapati Motilal Sugar Mills and the amount of Rs. 2,38,000/ received under the contract with M/s. Upper Doab Sugar Mills Ltd., formed part of the turnover of the assessee and was liable to sales tax. The Sales Tax Officer took the view that the contracts were essentially contracts of sale of ready made cranes and the erection of the cranes at the factory site was merely incidental to the sales and the amounts of Rs. 1,34,500/ and Rs. 2,38,000/ received under the contracts were, therefore taxable. This view was upheld by the Assistant Commissioner in appeal, but in revision the Additional Judge (Revisions) held that each of the two contracts was a works contract not involving any sale of goods and hence the amounts were not exigible to sales tax. On a reference to the High Court at the instance of the Commissioner of Sales Tax, the High Court took the view that each of the two contracts was for supply of 3 motion electrical overhead travelling cranes as a complete unit and "the predominant object was supply of crane as complete unit" and "the bestowing of labour and skill in the execution of the contract" appeared to have been incidental to the supply of the machine. " The High Court observed that in its view parties "intended the property to pass in the subject matter of the contract, namely, the completed crane as movable property" and concluded that it was a contract of sale of goods and not a contract for work and labour. The High Court accordingly answered both the questions referred to it against the assessee and in favour of the Revenue. Allowing the appeal by special leave the Court, ^ HELD: 1. The primary test to find out whether a contract is a contract of sale or a contract for work and labour is whether the contract is one whose main object is transfer of property in a chattel as a chattel to the buyer, though some work may be required to be done under the contract as ancillary or incidental to the sale or it is carrying out of work by bestowal of labour and service and materials are used in execution of such work. The Court 's have evolved some subsidiary tests to resolve the difficulty arising in the application of this primary test as there are a large number of cases which are on the 622 border line and fall within what may be called "grey area". One such test formulated by the Supreme Court in Commissioner of Sales Tax, Madhya Pradesh vs Purshottam Premji, 26 STC 38 is: "The primary difference between a contract for work or service and a contract for sale of goods is that in the former there is in the person performing work or rendering service no property in the thing produced as a whole. .In the case of a contract for sale, the thing produced as a whole has individual existence as the sole property of the party who produced it (at some time before delivery, and the property therein passes only under the contract relating thereto to the other party for price." [628 C G] Commissioner of Sales Tax, M.P. vs Purshottam Premji, 26 STC 38; State of Rajasthan vs Man Industrial Corporation 24 STC 349; Sentinel Rolling Shutters & Engineering Co. (P) Ltd. vs Commissioner of Sales Tax, Maharashtra, ; ; applied. Each of the two contracts for fabrication and erection of a 3 motion electrical overhead travelling crane is not a contract for sale but a contract for work and labour, (a) It is essentially a transaction for fabricating component parts and putting them together and erecting them at the site so as to constitute a 3 motion electrical overhead travelling crane. The transaction is no different than one for fabrication and erection of an open godown or shed with asbestos or tin sheets fixed on columns, (b) It is not as if a 3 motion electrical overhead travelling crane is fabricated by the manufacturer and then sold and delivered to the customer as a chattel, (c) The fabrication and erection of a 3 motion electrical overhead travelling crane is a highly skilled and specialised job and the component parts have to be taken to the site and they are assembled and erected there and it is only when this process is complete, then a 3 motion electrical overhead travelling crane comes into being. The process of assembling and erection requires a high degree of skill and it is not possible to say that the erection of a 3 motion electrical overhead travelling crane at the site is merely incidental to its manufacture and supply. The fabrication and erection is one single indivisible process and a 3 motion electrical overhead travelling crane comes into existence only when the erection is complete. The erection is thus a fundamental and integral part of the contract, because without it the 3 motion electrical overhead travelling crane does not come into being. The manufacturer would undoubtedly be the owner of the component parts when he fabricated them but at no stage does he become the owner of 3 motion, electrical overhead travelling crane as a unit so as to transfer the property in it to the customer. The 3 motion electrical overhead travelling crane comes into existence only when the component parts are fixed in position and erected at the site, but at that stage it becomes the property of the customer because it is permanently embedded in the land belonging to the customer. The result is that as soon as 3 motion electrical overhead travelling crane comes into being, it is the property of the customer and there is, therefore, no transfer of property in it by the manufacturer to the customer as a chattel. [630C D, 631E H 632 A] Sentinel Rolling Shutters & Engineering Co. (P) Ltd. vs Commissioner of Sales Tax, Maharashtra, [1979] 1 SCR page 644: followed.

These two appeals were preferred against the decision of the Nagpur High Court in an appeal under 'section 19(1)(f) of the Defence of India Act, 1939, modifying an award of compensation made 1178 under section 19(i)(b) of that Act in respect of certain premises requisitioned by the Government under 75(A) of the Rules framed under the Act. Both the parties applied for and obtained leave to appeal to the Federal Court under sections 109 and 110 of the Code of Civil Procedure. A preliminary objection was taken on behalf of the Government that the decision of the High Court was an award and not a judgment, decree or order within the meaning of sections 109 and 110 of the Code and as such no appeal lay therefrom : Held, that the objection must prevail and both the appeals stand dismissed. There could be no doubt that an appeal to the High Court under section 19(1)(f) Of the Defence of India Act from an award made under section 19(i)(b) of that Act was essentially an arbitration proceeding and as such the decision in such appeal cold not be a judgment, decree or order either under the Code of civil procedure or under Cl. 29 Of the Letters patent of the Nagpur High Court. Kollegal Silk Filatures Ltd. vs province, of Madyas, I. I,. R. , approved. There is a well recognised distinction between a decision given by the Court in a case which it 'hears on merits and one given by it in a proceeding for the filing of an award. The former is a judgment, decree or order of the Court appellable under the general law while, the latter is an adjudication of a private individual with the sanction of the Court stamped on it and where it does not exceed the terms of the reference, it is final and not appealable. There can be no difference in law between an arbitaration by agreement of parties and one under a statute. A referrence to arbitration under a statute to a court may be to it either as a court or as an arbitrator. If it is to it as a court, the decision is a judgment, decree or order appealable under the ordinary law unless the statute provides otherwise, while in the latter case the Court functions as a persona designata and its decision is air award not appealable under the ordinary law but only under the statute and to the extent provided by it. An appeal being essentially a continuation of the original proceedings, what *as at its inception an arbitration proceeding must retain its character as an arbitration proceeding even where the statute provides for an appeal, Rangoon Botatung Company vs The Collecter , Rangoon (1912) L.R. 39 I.A. 197 .The special officer sales the building sites Dassabhai Beznoji, Bom 506 the special officer sales the Building sites vs Dassabhai Bozanji Motiwala Manavikram Tirumalpad vs the Collector of the Nilagrie, Mad 943 and secretary of state for India in council vs Hindustan Co operative Insurance society Limited ,(1931) L.R. 58 I. A 259 relied on. National Telephone Company Limited vs Postmaster General, , explained.

The respondent had agreed to transport coal from the appel lant 's colliery to the railway station. The appellant had to keep the road in repair and arrange for petrol and had to make the payment for the actual coal despatched by the 10th of the following month. The appellant complained that he was suffering loss as the respondent had slowed down the work and the respondent complained that by not arranging for the petrol, not keeping the road in repairs and not making payments of amounts due the appellant had made it impossible to fulfil the contract. The quantity of coal transported was a fact within the knowledge of the appellant and the agreement merely provided for payment of the bills by 10th of the following month, without stating expressly that the presentation of bill was a condition precedent to the payment. The appellants contended that time was not of the essence of the contract and in any case the payment of the bills depended upon the presentation of bills in time and also challenged the award of the interest. Held, that in commercial transactions time is ordinarily of the essence of the contract and was made so in the contract and when this important condition of the agreement was broken, section 55 of the Indian Contract Act could be invoked by the aggrieved party and he was entitled to rescind the contract. In the present case by withholding the payment of the bills cl. (5) of the contract was breached by the appellant. Held, further, that interest for a period prior to the com mencement of suit is claimable either under an agreement or usage of trade or under a statutory provision or under the Interest Act for,% sum certain where notice is given These 640 conditions not being satisfied and this being not a case in which Court of Equity grants interest, interest was not awardable as damages. Held, further, that interest pendente lite being in the discretion of Court, should be fixed in accordance with the circumstances and practice of the Court and should not be too high. Bengal Nagpur Railway Co. Ltd. vs Ruttanji Ramji, (1937) L.R. 65 I.A. 66, referred to.

Under the Madhya Bharat Municipalities Act, 1954, the Municipal Corporation determined the house lax payable by the appellant in respect of his house with effect from April 1, 1954. On appeal by the appellant regarding assessment, the Additional District Judge remanded the case to the Corporation for a fresh decision after due enquiry. Ulti mately, by a notice dated October 12, 1965 issued under section 146 of the Madhya Pradesh Municipal Corporation Act, 1956 (as amended in 1961) the Corporation revised the amount of tax payable but maintained the date of liability for payment of tax as April 1, 1954. On appeal by the appellant, the additional District Judge held that the tax was payable with effect from April 1, 1965 and not April 1, 1954 for the reason that the tax was finally fixed after the notice dated October 12, 1965. The Revision Petition of the Corporation was allowed by the High Court holding that tax was payable from April 1, 1954 because the proceedings were started even before the 1956 Act came into force. In appeal to this Court the appellant contended that (1 ) as the fresh notice was issued under section 146 of the 1956 Act on October 12, 1965 after remand of the case by the District Judge, house lax could be imposed only with effect from April 1, 1965 and not retrospectively and (2) the order of the District Judge being final under section 149(2) of the 1956 Act the High Court had no jurisdiction to interfere with that order and in any event the High Court exceeded its power under section 115, C.P.C. Dismissing the appeal. HELD: The proceeding relating to the house tax was a continuous proceeding relating to the tax payable from April 1, 1954 and the notice issued by the Corporation after remand by the District Judge did not amount to notice of fresh assessment or re assessment. [874 E F] 1. There is no force in the contention .that under the 1956 Act the municipality had no power to pursue the pro ceedings regarding the levy of tax for an earlier period. The notice issued by the Corporation to the appellant made it clear that the Commissioner was proceeding to fix the value in pursuance of the remand. The appellant 's plea that the Commissioner was not authorised to determine the value and impose the tax for any period before the date of issue of the notice ignores the fact that the valuation and deter mination of tax from 1954 was pending and the proceedings related to that period. Section 3(3) of the 1956 Act pro vides that all rates, taxes and sums of money due to the Municipalities when this Act was made applicable shall be deemed to be due to the Corporation and sub section (4.) states that all suits and other legal proceedings instituted by or against a Municipality may be continued by or against the Corporation. The proceedings in the instant case were originally taken under the Madhya Bharat Municipalities Act, 1954 and the proceedings regarding the levy of the house tax were not concluded when under the new Act the Corporation became entitled to pursue the proceedings. [874F C, 875A D] 2. (a) Under section 115, C.P.C. the High Court has power to revise the order passed by Courts subordinate to it. The District Court being subordinate to 872 the High Court, is liable to the revisional jurisdiction of the High Court. Moreover, the question of want of jurisdic tion of the High Court was not raised before that Court and cannot be allowed to be raised in this Court for the first time. [875 F G] (b) The principles governing interference by the High Court trader section 115, C.I.C. have been laid down by this Court in a catena of decisions, the last of which is The Municipal Corporation of Delhi vs Suresh Chandra Jaipuria & Anr. (A.I.R. [875H, 876A B] Baldevdas Shivlal & Anr. vs Filmistan Distributors (India) (P) Ltd. & Ors. ; , M/s. D.L.F. Housing and Construction Co. (P) Ltd. vs Sarup Singh and Ors. A.I.R. 1971 S.C. 2324, The Managing, Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and Ant. vs Ajit Prasad Tarway, Manager (Purchase and Stores) Hindu stan Aeronautics Ltd. Balanagar, Hyderabad, A.I.R. 1973 S.C. 76 and The Municipal Corporation of Delhi vs Suresh Chan dra Jaipuria and Anr. A.I.R. 1976 S.C. 2621 referred to.

No. 139 of 1957. Petition under article 32 of the Constitution of India for enforcement of Fundamental rights. R. V. section Mani, for the petitioner. 689 C. K. Daphtary, Solicitor General of India, B. Sen and R. H. Dhebar, for respondent No. 2. 1961. March 30. The Judgment of the Court was delivered by WANCHOO, J. This petition challenges the constitutionality of a provision in the Constitution (Application to Jammu and Kashmir) Order, 1954 (hereinafter called the Order), made by the President under article 370(1) of the Constitution. The case of the petitioner is that he is registered as an elector in the Parliamentary Constituency of Delhi. As such he has a right to stand for election from any Parliamentary constituency in India. Six seats are allotted to the State of Jammu and Kashmir in the House of the People (Lok Sabha). Ordinarily, the election to these seats should have been by direct election from the territorial constituencies in the States as provided by article 81(l); but the President modified that Article in so far as it relates to the State of Jammu and Kashmir by Para. 5(c) of the Order in these words: "Article 81 shall apply subject to the modification that the representatives of the State in the House of the People ,hall be appointed by the President on the recommendation of the Legislature of the State." The petitioner contends that the President had exceeded his powers when he made this modification, for he thereby substituted direct election to the House of the People by nomination which he could not do. This, it is said, was alteration in article 81 as applied to the State of Jammu and Kashmir and was not justified as a modification under article 370(l). He therefore prays that the modification made may be declared unconstitutional and a writ of quo warranto be issued against the persons nominated to the House of the People on the recommendation of the Legislature of the State of Jammu and Kashmir prohibiting them from acting as members of Parliament. Apart from the question whether the petitioner has any fundamental right to maintain this petition under 87 690 article 32, we are of opinion that there is no force in it. The relevant part of article 370 with which we are concerned is in these words: "Notwithstanding anything in this Constitu tion, . . . . . . . (d) such of the other provisions of this Constitution shall apply in relation to that State (i.e., the State of Jammu and Kashmir) subject to such exceptions and modifications as the President may by order specify. " Article 370 clearly recognises the special position of the State of Jammu and Kashmir and that is why the President is given the power to apply the provisions of the Constitution to that State subject to such exceptions and modifications as the President may by order specify. The President thus has power to say by order that certain provisions of the Constitution will be excepted from application to the State of Jammu and Kashmir and 'on such order being made those provisions would not apply to that State. Besides this power of making exceptions by which certain provisions of the Constitution were not to apply to that State the President is also given the power to apply the provisions of the Constitution with such modifications as he thinks fit to make. The contention on behalf of the petitioner is that the modification envisaged in article 370(l) did not mean amendment of the Constitution for the purpose of application to that State and would not certainly include such amendment as would make a radical alteration in the provisions of the Constitution. In this connection he relies on the observations of Kania, C.J., and Mahajan, J., in In re The (1). Kania, C.J., after dealing with the meaning of the word " modify" seems to have held that the word "modify" as used in the context in which he was speaking only implied alteration without radical transformation. Mhajan, J., also said that the word "modification" Use in the context before him did not involve "any material or substantial alteration". The petitioner therefore urges (1) ; 691 that as the Order substituted direct election by nomination there has been a radical alteration in article 81 by the President in its application to the State of Jammu and Kashmir and therefore is not justified by the word 'modification" used in article 370(l) and the President had exceeded his power under that Article in making this radical alteration. Before we consider what the word "modification" means in the context of article 370(l), let us see what the President has actually done in the matter of modification of article 81. The modification prescribes that the six seats in the House of the People from the State of Jammu and Kashmir would be filled by nomination by the President on the recommendation of the Legislature of that State. Now in form the seats will be filled by nomination by the President; but in reality what the modification provides is indirect election in place of direct election to these seats in the House of the People. The modification lays down that the President will nominate members to these six seats on the recommendation of the Legislature of the State. The President must therefore nominate only those who have been recommended by the Legislature of the State, which is elected on adult suffrage. Now the only way the Legislature can make a recommendation for this purpose is by voting. Therefore, in effect the modification made by the President is that the six seats to the House of the People from the State of Jammu and Kashmir will be filled by indirect election and not by direct election. The element of election still remains in the matter of filling these seats, though it has been made indirect. In these circumstances it may not be possible to say that there has been a radical alteration in article 81 by the modification effected by the Order. But even assuming that the introduction of indirect election by this modification is a radical alteration of the provisions of article 81(l), the question still remains whether such a modification is justified by the word "modification" as used in article 370(1). We are here dealing with the provision of a Constitution which cannot be interpreted in any narrow or pedantic sense 692 The question that came for consideration in In re Delhi Laws Act case( ') was with respect to the power of delegation to a subordinate authority in making subordinate legislation. It was in that context that the observations were made that the intention of the law there under consideration when it used the word "modification" was that the Central Government would extend certain laws to Part C States without any radical alteration in them. But in the present case we have to find out the meaning Of the word "modification" used in article 370(l) in the context of the Constitution. As we have said already the object behind enacting article 370(l) was to recognise the special position of the State of Jammu and Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. If therefore the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir, it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If be could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word "modification" in article 370(l) the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and Kashmir. In the Oxford English Dictionary (Vol. VI) the word 'modify" means inter alia "to make partial changes in; to change (as object) in 693 respect of some of its qualities; to alter or vary without radical transformation". Similarly the word "modification" means "the action of making changes in an object without altering its essential nature or character; the state of being thus changed; partial alteration". Stress is being placed on the meaning "to alter or vary without radical transformation" on behalf of the petitioner; but that is not the only meaning of the words "modify" or "modification". The word "modify" also means "to make partial changes in" and "modification" means "partial alteration". If therefore the President changed the method of direct election to indirect election he was in essence making a partial change or partial alteration in article 81 and therefore the modification made in the present case would be even within the dictionary meaning of that word. But, in law, the word "modify" has even a wider meaning. In "Words and Phrases" by Roland Burrows, the primary meaning of the word "modify" is given as "to limit" or "restrict" but it also means " 'to vary" and may even mean to "extend" or "enlarge". Thus in law the word "modify" may just mean "vary", i.e., amend; and when article 370(l) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify it means that he may vary (i.e., amend) the provisions of the Constitution in its application to the State of Jammu and Kashmir. We are therefore of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word 'modification" used in article 370(l) and in that sense it includes an amendment. There is no reason to limit the word "modifications" as used in article 370(1) only to such modifications as do not make any "radical transformation". We are therefore of opinion that the President had the power to make the modification which he did in article 81 of the Constitution. The petition therefore fails and is hereby dismissed with costs. Petition dismissed.

Six seats are allotted to the State of Jammu and Kashmir in the House of People (Lok Sabha) and election to those seats should ordinarily have been by direct election under article 81(1) of the Constitution but the President modified that Article under article 370(1) by Para. 5(c) of the Constitution (Application to Jammu and Kashmir) Order, 1954, to the effect that "the representatives of the State in the House of People shall be appointed by the President on the recommendations of the Legislature of the State". The petitioner who claimed to be a registered elector and as such eligible for election from any Parliamentary constituency in India contended that the President had exceeded his powers when he made this modification for he thereby substituted direct election to the House of People by nomination which he could not do, and that the said modi fication amounted to radical alteration in article 81 and was not justified under article 370(1). Held, that the word "modification" used in article 370(I) must be given the widest meaning in the context of the Consti tution and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any "radical transformation". The modification lays down that the President will make the nomination on the recommendation of the State Legislature which can do so only by voting, and in effect it provides that the seats will be filled by indirect election and not direct election. The element of election being thus still present there was no radical alteration in article 81 and the President had the power to make the modification which he did. In re ; , , distinguished.

The appellants were detained under r. 30(l) of the Defence of India Rules made by the Central Government under section 3 of the Defence of India Ordinance, 1962. They applied to the Punjab and Bombay High Courts under section 491(1)(b) of the Code of Criminal Procedure and their case was that sections 3(2)(15)(i) and 40 of the Defence of India Act, 1962, and r. 30(1)(b) of the Defence of India Rules, which were continued under the Act, were unconstitutional and invalid inasmuch as they contravened their fundamental rights under articles 14, 21, 22(4), (5) and (7) of the Constitution and that, therefore, they should be set at liberty. The High Courts held that the Presidential Order which had been issued on November 3, 1962, under article 359(1) of the Constitution, after a declaration of emergency under article 352, consequent on the Chinese invasion of India, barred their right to move the said petitions and dismissed them. These appeals raised two common questions in this Court, (1) what was the true scope and effect of the Presidential Order issued under article 359(1), and (2) did the bar created by the Order operate in respect of the applications under section 491(1)(b) of the Code. The Presidential Order was as follows: "G.S.R. 1464 In exercise of the powers conferred by cl. (1) of article 359 of the Constitution, the President hereby declares that the right of any person to move any court for the enforcement of the right conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of article 352 thereof on the 26th October 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder. " By a later amendment of the Order article 14 was incorporated into it. 798 Held:(per Gajendragadkar, Sarkar, Wanchoo, Hidayatullah, Das Gupta and Shah, JJ.) that the proceedings taken by the appellants in the High Courts under section 491(1)(b) of the Code were hit by the Presidential Order and must be held to be incompetent. Article 359 of the Constitution was not capable of two interpretations and it was, therefore not necessary to decide the controversy raised by the parties as to whether that Article should be interpreted in favour of the President 's power granted by it or the fundamental rights of the citizens. The King (At the Prosecution of Arthur Zadig) vs Halliday, ; , Liversidge vs Sir John Anderson, ; , Keshav Talpade vs The King Emperor, [1943] F.C.R. 49, Nakkuda Ali vs M. F. De section Jayaratne, and King Emperor vs Vimalabal Deshpande, L.R. 73 1. A. 144, considered. The words 'any court ' in article 359(1), construed in their plain grammatical meaning, must mean any court of competent jurisdiction including ' the Supreme Court and the High Courts before which the rights specified in the Presidential Order can be enforced. It was not correct to say that the use of the words was necessary so as to include such other courts as might be empowered in terms of article 32(3). Nor was it correct to say that the words could not include a High Court as its power to issue a writ under article 226(1) was discretionary. In judging whether a particular proceeding fell within the purview of the Presidential Order the determining factor was not its form nor the words in which the relief was couched but the substance of it. If in granting the relief the court had to consider whether any of the fundamental rights mentioned in the Presidential Order, had been contravened, the proceeding was within the Order, whether it was under article 32(l) or 226(1) of the Constitution. The right to move the court for writ of habeas corpus under section 491(1)(b) of the Code of Criminal Procedure was now a statutory right and could no longer be claimed under the common law. Girindra Nath Banerjee vs Birendra Nath Pal I.L.R. 54 Cal. 727, District Magistrate, Trivandrum vs K. C. Mammen Map pillai, I.L.R. , Matthen vs District Magistrate, Trivandrum L.R. 66 I.A. 222 and King Emperor vs Sibnath Banerji, L.R. 72 I.A. 241, referred to. Since the promulgation of the Constitution the two methods by which a citizen could enforce his right of personal freedom were (i) by a writ under article 226(1) or article 32(l), or (ii) under section 491(1)(b) of the Code of Criminal Procedure. Whichever method he adopted if the right he sought to enforce was a fundamental right guaranteed by the Constitution the matter must, come within article 359(1) of the Constitution. That the court could exercise its power under section 491(1)(b) suo motu could make no 799 difference and articles 372, 225 or 375 could provide no valid ground of attack. The suspension of the right to move any court, as under the Presidential Order, must necessarily suspend the Court 's jurisdiction accordingly. The right to challenge a detention order under section 491(1)(b) of the Code had been enlarged by the fundamental rights guaranteed by the Constitution and when a detenu relied upon such rights in his petition under that section he was in substance seeking to enforce his fundamental rights. The prohibition contained in article 359(1) and the Presidential Order must, therefore, apply. The expression "right to move any court" in article 359(1) and the Presidential Order takes in all legal actions, filed or to be filed, in which the specified rights are sought to be enforced and covers all relevant categories of jurisdictions of competent courts under which the said actions would other wise have been normally entertained and tried. Sree Mohan Chowdhury vs Chief Commissioner Union Territory of Tripura, ; , referred to. Even though the impugned Act may be invalid by reason of contravention of articles 14, 21 and 22, as contended by the appellants, that invalidity could not be challenged during the period prescribed by the Presidential Order and it could not be said that the President could not because of such invalidity issue the order. Where, however, the challenge to the validity of the detention order was based on any right other than those mentioned in the Presidential Order, the detenu 's right to move any court could not be suspended by the Presidential Order because the right was outside article 359(1). Where again the detention was challenged on the ground that it contravened the mandatory provisions of the relevant act or that it was malafide and was proved to be so and in all cases falling under the other categories of section 491(1) of the Code excepting those under section 491(1)(b), the bar of the Presidential Order could have no application. So also the plea that the operative provision of the law under which the order of detention was made suffered from the vice of excessive delegation, was an independent plea not relatable to the fundamental rights mentioned in the Presidential Order and its validity had to be examined. The plea that section 3(2)(15)(i) and section 40 of the impugned Act suffered from excessive delegation must fail. The legislative policy was broad stated in the preamble and the relevant provisions of sections 3(1) and 3(2) gave detailed and specific guidance to the rule making authority and it was not correct to say that the Act had by the impugned sections delegated essentially legislative function to that authority. Rule 30(1)(b) which was consistent with the operative provisions of the Act could not also be challenged on that ground. 800 In " The etc. ; , Harishankar Bagla vs The State of Madhya Pradesh, , Bhatanagars and Co. Ltd., vs The Union of India, ; , relied on. The impugned Act could not also he struck down as a piece of colourable legislation because the , was already on the Statute book. The Parliament had power under Entry 9, List I of the Seventh Schedule to the Constitution and if in view of the grave threat to the security of India it passed the Act, it could not be said to have acted malafide. If the Parliament thought that the executive would not be able to detain citizens reasonably suspected of prejudicial activities by a recourse to the , which provided for the required constitutional safeguards and the impugned Act which it enacted did not, it could not be suggested that it was acting malafide. Even if the impugned Act contravened articles 14 and 22 and the detentions thereunder were invalid, article 359(1) and the Presidential Order, which were precisely meant to meet such a situation, barred investigation on the merits during the period prescribed by the Order. The proceeding under section 491(1)(b) of the Code is one pro ceeding and the sole relief that can be claimed under it is release from the detention. If that could not be claimed because of the Presidential Order it was unreasonable to say that a mere declaration that the impugned Act and the detention thereunder were invalid could be made. Such a declaration is clearly outside the purview of section 491(1)(b) of the Code as also of articles 226(1) and 32(l) of the Constitution. The period for which the emergency should continue and the restrictions that should be imposed during its continuance are matters that must inevitably be left to the executive. In a democratic state the effective safeguard against any abuse of power in peace as also in emergency is the existence of enlightened, vigilant and vocal public opinion. Liversidge vs Sir John Anderson, [19421 A.C. 206, referred to. The inviolability of individual freedom and the majesty of law that sustains it are equally governed by the Constitution which has made this Court the custodian of the fundamental rights on the one hand and, on the other, provided for the declaration of the emergency. Consequently, in dealing with the right of a citizen to challenge the validity of his detention, effect must be given to article 359(1) and the Presidential Order issued under it. The right specified in that Article must be held to include such right whether constitutional or constitutionally guaranteed and the words "any court" must include the Supreme Court and the High Court. The Punjab and the Bombay High Courts were, therefore right in their decision that the applications under section 491(1)(b) of 801 the Code were incompetent in so far as they sought to challenge the validity of the detentions on the ground that the Act and the Rules under which the orders were made contravened articles 14, 21 and 22(4)(5) and (7) of the Constitution. Per Subba Rao, J. It was clear that section 3(2)(15)(i) of the Defence of India Act, 1962, and r. 30(1)(b) made under the Act contravened the relevant provisions of article 22 of the Constitution and were, therefore, void. Deep Chand vs The State of Uttar Pradesh, [1959] Supp. 2 S.C.R. 840, Mahendra Lal vs State of U.P., A.I.R. 1963 S.C. 1019, A. K. Gopalan vs State of Madras, ; , referred to. Under the Constitution, every person has a right to move the Supreme Court, the High Courts or any other court or courts constituted by the Parliament under article 32(3) for the enforcement of fundamental rights in the manner prescribed. But while the right to move the Supreme Court is a guaranteed right, the right to move the others is not so. Article 359, properly construed, meant that the bar imposed by the Presidential Order applied not only to the guaranteed right to move the Supreme Court but also the rights to move the other courts under article 32 and article 226 of the Constitution. There is no new rule of construction peculiar to war measures. It is always the same, whether in peace or in war. The fundamental rule is that the courts have to find out the expressed intention of the Legislature from the words of the enactment itself. Words must be given their natural and ordinary meaning unless there is ambiguity in the language in which case the court has to adopt that meaning which furthers the intention of the Legislature. A constitutional provision such as article 359, however, cannot be given a strained construction to meet a passing phase such as the present emergency. Rex vs Halliday, L.R. [19171 A.C. 260, Liversidge vs Sir John Anderson; , , Nakkuda A1i vs jayaratna, , Gibbon vs Ogden, (1824) 6 L. Ed. 23, discussed. Section 491 of the Code of Criminal Procedure is wide in its terms and gives a discretionary power to the High Courts. Unlike articles 32 and 226, the exercise of the power is not channelled through procedural writs or orders and their technicalities cannot circumscribe the court 's discretion. Girindra Nath Banerjee vs Birendra Nath Pal, (1927) I.L.R. , District Magistrate, Trivandrum vs Mammen Mappillai, I.L.R. , Matten vs District Magistrate, Trivandrum, L.R. (1939) 66 I.A. 222, referred to. Section 491 is continued by article 372 and article 225 preserves 802 the jurisdiction of the High Court. The power it confers on the High Court is not inconsistent either with article 32 or article 226 or any other Article of the Constitution and the section cannot, therefore, be said to have been impliedly superseded even to the extent article 226 empowers the High Court to give relief in cases of illegal detention. Though remedial in form the section postulates the existence of the substantive right that no person can be deprived of his liberty except in the manner prescribed by law. It assumes the existence of the rule of law and empowers High Court to act suo motu. The rights, substantive and procedural conferred by it arc different from those under articles 32 or 226 of the Constitution. It places the onus on the custodian to prove that the detention is legal and although in scrutinising the legality of the detention the court may have to consider whether the law offends any fundamental rights, that cannot make the proceeding one for the enforcement of fundamental rights or the decision anything but one on the unconstitutionality of a law because of infringement of fundamental rights generally. The mode of approach to the High Court under section 491 of the Code or the nature of the relief given thereunder cannot be equated with those under the Constitution. The absolute discretionary jurisdiction under it cannot be put on a par with the jurisdiction under article 226 which is hedged in by constitutional limitations. Alam Khan vs The Crown, Lahore 274, Ramji Lal vs The Crown, I.L.R. (1949) 11 E.P. 28, King Emperor vs Vimlabai Deshpande, (1946) L.R. 73 I.A. 144, referred to. While section 491 gives no right to enforce fundamental rights, operating as it does as a check on arbitrary action, article 359 is concerned not with statutory powers but deals with the constitutional right and the constitutional enforcement of it. It was not, therefore, correct to say that article 359 would be frustrated if section 491 was allowed to stand for Parliament might amend that section any time it liked. The expression "right to move any court for enforcement of such of the rights conferred by Part 111" in article 359 must refer only to the right to move under article 32 or article 226 for the said specific relief and could not be applied to the exercise of the statutory power of the High Courts under section 491 of the Code and, consequently, the expression "all proceedings pending in any court for the enforcement of the rights" must refer to the proceedings initiated in exercise of that right. The detenus could not, therefore, enforce their fundamental rights under articles 21, 32 and 14 while the Presidential Order lasted, but that did not affect the High Court 's power under section 491 of the Code. The President 's Order cannot bar the detenus from proving even under articles 32(l) and 226 that the detentions were not made 803 under the Defence of India Ordinance or the Act as they were outside the Ordinance or the Act or in excess of the power conferred by them or that the detentions were made malafide or in fraudulent exercise of power.

The respondents, who lost the State Assembly elections as candidates of the Mezo National Front(MNF) from different constituencies of Mizoram, challenged the election of the Congress (I) candidates on the ground of corrupt practices in the High Court. The appellants the returned candidates raised certain preliminary objections regarding the maintainability of each petition. On the basis therefore two preliminary issues were raised for consideration. The appellants moved for striking off the pleadings. Thereupon, the original petitioners the respondents applied for amendment of their election petitions which was strongly opposed by the appellants. The preliminary objections, the applications for striking off the pleadings and the amendment applications were heard together. The two preliminary issues raise were (i) whether the election petitions were in conformity with the requirements of Section 81 and 83 753 of the Representation of the Peoples Act, 1951 and the Rules framed thereunder by the High Court and (ii) whether rule 1 and the other related rules and notes thereto enabling the filing of the Election Petition before the Stamp Reporter assigned to the election court by the Chief Justice were ultra vires Article 329 of the Constitution and Section 169 read with Sections 80, 80A and 81 of the R.P. Act. The appellants contended that the election petitions being photo copies, could not be treated as election petitions as contemplated by law; that the copies of petitions served on them were not attested to be true copies of the original petitions as required by Section 81(3); that the election petitions were not signed and verified in the manner laid down by the Code of Civil Procedure inasmuch as the source of information had not been disclosed in the verification or in the affidavit in Form 25 as required by rule 94A of the Conduct of Election Rules, 1961 (the Rules); that no schedule of material particulars of corrupt practice had been annexed to the affidavit purporting to be under Form 25, and that the presentation of the election petitions before the Stamp Reporter was inconsistent with Sections 80, 80A and 81 of the R.P. Act and Article 329 of the Constitution. The averments in each election petition were identical. The High Court rejected the preliminary objections and party allowed the applications for striking off the averments in the election petitions and partly permitted certain amendments to the election petitions, against which order the present appeals are filed in this Court under Article 136 of the Constitution. The returned candidate the appellant contended that paragraph 3 of the election petition was the most crucial paragraph inasmuch as it disclosed the names of towns and villages as well as the period during which the alleged corrupt practices were committed had been deliberatedly omitted from the verification clause and the affidavit; that failure to mention paragraph 3 of the election petition in both the verification clause of the petition and the affidavit was fatal and cannot be cured after the expiry of the limitation period of 45 days; that the affidavit was not in Form No. 25 prescribed under Rule 94A of the Rules and since Section 83 of the R.P. Act is mandatory and failure to adhere to Form No. 25 was fatal, as the doctrine of substantial compliance had no place in election law but even if that doctrine could be invoked, the respondent failed to make substantial compliance; that the election petitions being photocopies could not be entertained as valid 754 election petitions; that copies of the election petitions served on the returned candidates were not attested as true copies of the original as required by Section 81(3); that the election petitions and the schedule and annexures were not signed and verified as required by the Code; that an election dispute founded on the allegation of corrupt practice being quasi criminal in nature calls for strict adherence to the requirements of election law as was evident from Section 86(I) of R.P. Act which provided for dismissal of an election petition which failed to comply with the requirements of Section 81, 82 or 117 of the statute; and that if the Code did not apply to Mizoram, it applied to an election petition because section 83(I)(c) obligates that an election petition `shall be signed by the petitioner and verified in the manner laid down in the Code for the verification of pleadings '. This Court partly allowing the appeals, HELD: 1. Our election law being statutory in character must be strictly complied with since an election petition is not guided by ever strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character it is essential that it must conform to the requirements of our election law. But at the same time the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation. If the returned candidate is shown to have secured his success at the election by corrupt means he must suffer for his misdeeds. [772B D] 2. A charge of corrupt practice has a two dimensional effect; its impact on the returned candidate has to be viewed from the point of view of the candidate 's future political and public life and from the point of view of the electorate to ensure the purity of the election process. There can, therefore, be no doubt that such an allegation involving corrupt practice must be viewed very seriously and the the High Court should ensure compliance with the requirements of Section 83 before the parties go to trial. [783D E] 3. What is essential is that the petitioner must take the responsibility of the copy being a true copy of the original petition and sign in token thereof. No particular form of attestation is prescribed; all that the sub section enjoins is that the petitioner must attest the copy under his own signature to be a true copy of the petition. By certifying the same as true copy and by putting his signature at the foot thereof, the petitioner of each election petition had clearly complied with the letter and spirit of section 81(3) of the R.P. Act. [786A B] 755 4. Section 86(I) mandates that the High Court `shall ' dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the R.P. Act. The language of this sub section is quite imperative and commands the High Court, in no uncertain terms, to dismiss an election petition which does not comply with the requirements of section 81 of section 82. [773B D] 5. Election of a returned candidate can be rendered void on proof of the alleged corrupt practice. In addition thereto he would incur a subsequent disqualification also. This harshness is essential if we want our democratic process to be clean, free and fair. Eradication of corrupt practice from our democratic process is essential if we want it to thrive and remain healthy. Our democratic process will collapse if unhealthy corrupt practices like appeals to voters on basis of caste, creed, community religion, race, language, etc., are allowed to go unchecked and unpunished. Use of corrupt practices in elections to secure short term gains at the cost of purity of our democratic process must be frowned at by every right thinking citizen. [773D F] 6. It is for that reason that the law has provided for double jeopardy to deter candidates, their agents and others from indulging in such nefarious practices, their agents and others from indulging in such nefarious practices. But while there is sufficient justification for the law to be harsh with those who indulge in such practices, there is also the need to ensure that such allegations are made with a sense of responsibility and concern and not merely to vex the returned candidate. It is with this in view that the law envisages that the particulars of such allegations shall be set out fully disclosing the name of the party responsible for the same and the date and place of its commission. A simple verification was considered insufficient and, therefore, the need for an affidavit in the prescribed form. These procedural precautions are intended to ensure that the person making the allegation of corrupt practice realises the seriousness thereof as such a charge would be akin to a criminal charge since it visits the party indulging in such practice with a two fold penalty. [773E H] 7. If full particulars of an alleged corrupt practice are not supplied, the proper course would be to give an opportunity to the petitioner to cure the defect and if he fails to that opportunity that part of the charge may be struck down. [775F G] 8. Once the amendment sought falls within the purview of section 86(5), the High Court should be liberal in allowing the same unless, in the facts and circumstances of the case, the Court finds it unjust and 756 prejudicial to the opposite party to allow the same. Such prejudice must, however, be distinguished from mere inconvenience. [775G H] 9. The power conferred by section 86(5) cannot be exercised to allow any amendment which will have the effect of introducing a corrupt practice not previously alleged inthe petition. If it is found that the proposed amendments are not in the nature of supplying particulars but raise new grounds, the same must be rejected but if the amendments are sought for removing vagueness by confining the allegations to the returned candidate only such an amendment would fall within the parameters of section 86(5) of the R.P. Act. [789B D] 10. Clause(c) of sub section 83 provides that an election petition shall be signed by the petitioner and verification of the pleadings. Under section 83(2) any schedule or annexure to the pleading must be similarly verified. Order 6 Rule 15 is the relevant provision in the Code. Sub rule (2) of Rule 15 says that the person verifying shall specify with reference to the numbered paragraphs of the pleading, what he verifies on his own knowledge and what he verifies upon information received and believed to be true. The verification must be signed by the person making it and must state the date on and the place at which it was signed. The defect in the verification can be (i) of a formal nature and not very substantial (ii) one which substantially complies with the requirements and (iii) that which is material but capable of being cured. [776A C] 11. The object of requiring verification of an election petition is clearly to fix the responsibility for the averments and allegations in the petition on the person signing the verification and at the same time discouraging wild and irresponsible allegations unsupported by facts. [776C D] 12. In cases where corrupt practice is alleged in the petition, the petition shall also be supported by an affidavit in the prescribed form, i.e. Form No. 25 prescribed by Rule 94A of the Rules. [776D E] 13. While defective verification or a defective affidavit may not be fatal, the High Court should ensure its compliance before the parties go to trial so that the party required to meet the charge is not taken by surprise at the actual trial. [783E F] 14. The charge of corrupt practice has to be proved beyond reasonable doubt and merely preponderance of probabilities. 757 Allegation of corrupt practice being quasi criminal in nature, the failure to supply full particulars at the earliest point of time and to disclose the source of information promptly may have an adverse bearing on the probative value to be attached to the evidence tendered in proof thereof at the trial. Therefore, even though ordinarily a defective verification can be cured and the failure to disclose the grounds or sources of information may not be fatal, failure to place them on record with promptitude may lead the court in a given case to doubt the veracity of the evidence ultimately tendered. If, however, the affidavit of the schedule or annexure forms an integral part of the election petition itself, strict compliance would be insisted upon. [783G 784B] 15. The requirements of section 81(3) are mandatory and failure to comply with them would render the petition liable to summary dismissal under section 86(I) of the R.P. Act. [784G] 16. If a document does not form an integral part of the election petition but is merely referred to in the petition or filed in the proceedings as evidence of any fact, failure to supply a copy thereof will not prove fatal. Therefore the maintainability of an election petition will depend on whether the schedule or annexure to the petition constitutes an integral part of the election petition or not. If it constitutes an integral part it must satisfy the requirements of section 81(3) and failure in that behalf would be fatal. But if it does not constitute an integral part of the election petition, a copy thereof need not be served along with the petition to the opposite party. [787A C] 17. The High Court is directed to issue directions to the election petitioner of each petition to remove the defects within such time as it may allow and if they or any of them fail to do so, pass appropriate consequential orders in accordance with law. [789A B] Gurumayam section Sarma vs K. Ongbi Anisija Devi, Civil Appeal No. 659 of 1957 dated 9.2.1961; State of Nagaland vs Rattan Singh; , ; V.L.Rohlus vs Deputy Commissioner, Aizawal, ; Raj Narain vs Indira Gandhi; , at 1307: ; ; Manphul Singh vs Surinder Singh, [1973] 2 SCC 599 at 608; K.M. Mani vs P.J. Antony, ; ; Samant N. Bal Krishna vs George Fernandez, ; ; D.P. Mishra vs Kamal Narayan Sharma, ; ; Balwan Singh vs Lakshmi Narain, ; Murarka Radhey Shyam vs Roop Singh Rathore; , ; State of Bombay vs Purushottam Jog Naik; , ; The Barjum Chemicals Ltd. The Company Law 758 Board, [1966] Supp. SCR 311; K.K. Nambiar vs Union of India, ; at 125; Jadav Gilua vs Suraj Narain Jha, AIR 1974 Patna 207; M/s Sunder Industries Ltd. vs G.E. Works, AIR 1982 Delhi 220; K.K. Somanathan vs K.K. Ramachandran, AIR 1988; Kerala 259; Kamalam vs Dr. Syed Mohammad, ; ; M/s. Sukhwinder Pal vs State of Punjab, ; ; Z.B. Bukhari vs Brij Mohan, ; Prabhu Narayan vs K.K. Srivastava, ; ; Satya Narain vs Dhuja Ram, ; ; M. Karunanidhi vs Dr. H.V. Hande, ; Mithlesh Kumar Pandey vs Baidyanath Yadav, [1984] 2 SCR 278; Rajender Singh vs Usha Rani, [1984] 3 SCC 339; U.S. Sasidharan vs K. Karunakaran; , and Ch. Subba Rao vs Member, E.T. Hyderabad, Referred to. When by the same statute the words `Election Commissioner ' were substituted by the expression `High Court ' with effect from December 14, 1966. Even though by the said Amendment Act jurisdiction was conferred on High Court in place of the Election Commission, surprisingly the title of chapter II continues to read `Presentation of election petitions to Election Commission '. Parliament will well to correct this slip by substituting the words `High Court ' for the expression `Election Commission ' to bring it in conformity with the changes introduced by Act 47 of 1966. [768E F]

The petitioner describing himself as an intending candidate for the Presidential Election filed a petition in the Supreme Court under article 71 (1) of the Constitution of India impugning the election of the President, but it was returned by the Registrar of the Court on the ground that it was not in conformity with the provisions of the Presidential and Vice Presidential Elections Act, 152, and the Rules of the Supreme Court contained in Or. XXXVII A. On appeal to the Court it was contended for the appellant that (1) the petition was founded upon doubts as to the validity of the election and, in consequence, was not covered either by the Act or the Rules of the Supreme Court, (2) the Act and the Rules in question were void on the ground that they derogate from the jurisdiction conferred on the Supreme Court under article 71(1) and (3) in any case, the petitioner has a right as a citizen to approach this Court for relief whenever an election has been held in breach of the constitutional provisions. Held that article 71(1) merely prescribes the forum in which doubts and disputes in connection with the election of the President and Vice President would be enquired into, but the right to move the Supreme Court as well as the procedure therefor, are determined by the Act of Parliament as authorised by article 71 (3). Accordingly the Act and the Rules in question are valid, and the petitioner has no rights apart from those given by the statute to file an application for setting aside an election.

HELD: The order of detention was passed by the respondent No. 2. District Magistrate, on the basis of two Criminal Cases in respect of two incidents which had occurred on October 2 and 3, 1986. So far as the case being G.D. No. 38 was concerned, the report of this incident was made by the picket employed at police station, Kydganj. It appeared from this report that there were no particulars about the shopkeepers who had been terrorised and threatened for payment of money, as alleged in the grounds of detention, nor were mentioned at all the names of any of the witnesses in whose presence the threat or terror was used and money was demanded. The report was absolutely vague and it was not possible for the detenu to give an effective representation 127 against the ground, which is one of the Constitutional requirements enjoined in Article 22(5) of the Constitution of India. The second ground, which led to crime case No. 248/86 under section 307, I.P.C., and crime case No. 249/86 under section 4/5 of the Explosives Act and which occurred on October 3, 1986, registered on the complaint of Sub/Inspector Yatendra Singh through special court, Allahabad, also did not disclose any particulars as to the shop keepers in whose presence the bombs alleged were thrown by the appellant, and who were terrified and panic stricken, etc., nor were mentioned the names of any witnesses in respect of the said incident. [133F, 134A D] The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon the Society, as held by this Court in Kanu Biswos vs State of West Bengal, ; , while determining the meaning of 'public order '. Public order is what the French Call "order Publique" and is something more than ordinary maintenance of law and order. From the observations of this Court made in many cases, it is evident that whether an act amounts to a breach of law and order or a breach of public order, solely depends upon its extent and reach to the society. If the act is restricted to particular individuals or a group of individuals, it breaches the law and order problem, but if the effect and reach and potentiality of the act are so deep as to affect the community at large and/or the even tempo of the community, then, it becomes a breach of the public order. An act, which may not at all be objected to in certain situations is capable of totally disturbing the public tranquillity. When communal tension is high, an indiscreet act of no significance is likely to disturb or dislocate the even tempo of the life of the community. An order of detention made in such a situation has to take note of the potentiality of the act objected to. Thus, whether an act relates to law and order or the public order depends upon the impact of the act on the life of the community, or, in other words, the reach and effect and potentiality of the act, if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect the public order . [134D E,137A B. 138B D] In this case, so far as the first incident which occurred on 2.10.1986 was concerned, the ground was vague inasmuch as the names of the witnesses in whose presence the threat was given and the incident occurred, had not been mentioned. As regards the second incident which occurred on 3. 10.1986, the Crime Case No. 248/86 under section 307, I.P.C. and the Crime Case No. 249/86 under section 4/5 of the Explosive Act, were pending trial. [138E F] 128 A case crime No. 200 of 1985 under sections 323/504/506/426, l. P.C., read with section 2/3 of the U.P. Gangsters and Anti Social Activities Act No. 4 of 1986 was registered against the appellant by the police. That case was challenged by an application under section 482 Cr. P.C. in the High Court. The said application was admitted on 2.6.1986 and had been pending. The High Court had, while admitting the case, granted stay of arrest of the appellant. The appellant had been taken into custody and was in jail as an undertrial prisoner on October 10, 1986, when the impugned order of detention was clamped upon him. The appellant stated in this Appeal that till date he had not applied for bail in case crime No. 248/86 and case crime No. 249/86 as well as the case registered in report No. 38 dated October 2, 1986 at the police station Kydganj. The question was whether there was a possibility of the detaining authority to be satisfied that the appellant was likely to indulge in activities prejudicial to the maintenance of public order as there was no likelihood of his being released from the jail custody immediately. There was nothing in the case to show that in consideration of his previous conduct and acts, there was a likelihood of the appellant 's indulging in activities prejudicial to the maintenance of public order if he was set free and/or released from custody. [138F H, 139A B, 140B C] The detaining authority District Magistrate respondent No. 2, had not filed an affidavit stating whether he had taken into consideration the fact that the appellant had already been in the judicial custody and on considering his past activities he had been subjectively satisfied that if set free or released from jail custody on bail, there was a likelihood of his indulging in criminal activities endangering public order. On the other hand, the Station officer of Kydganj police station, had filed a counter stating that the District Magistrate had passed the impugned detention order when the appellant was already in jail, on the p apprehension that the appellant was likely to be released on bail in the near future and if he was bailed out, the public order would become worse. This clearly showed that the police officer had arrogated to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the Act. The affidavit filed by the station officer of police implied that he had access to the file of the District Magistrate or he influenced the decision of the District Magistrate for making the detention order. There was nothing to show that there was awareness in the mind of the District Magistrate, the detaining authority, of the fact that the appellant was in jail at the time of the clamping of the order of detention, and the detaining authority was satisfied, in considering his antecedents, that there was a likelihood of his indulging in criminal activities, jeopardising public order if he 129 was released on bail and that there was every likelihood of his being A enlarged on bail within a short time. On this ground alone, the detention order was invalid. It might be said in this connection that the respondents could very well oppose the bail application when it came up for hearing, and if at all the appellant was released on bail, the respondents were not without a remedy. They could file an application for cancellation of the bail. In the circumstances, it could not but be held that the passing of the order of detention of the appellant who was already in custody was fully bad and invalid in law. The respondents could very well proceed with the criminal case under section 307, I.P.C., and get the appellant punished if the case was proved beyond doubt against him. The police officers, who witnessed the hurling of the bombs and the Sub Inspector of police who recorded the F.I.R., could come forward to give evidence. In the circumstances, the open statement in the affidavit of the Sub Inspector that the witnesses were afraid of disclosing their names and giving evidence, was wholly incredulous and could not be accepted. [141G H, 142A G, 143G 144A] The clamping of the order of detention was not in accordance with the provisions of the Act. The history sheet did not at all link to the proximity of the two incidents on the basis of which the detention order had been passed. [144C D] The impugned order of detention was illegal and invalid. [144G] E Kanu Biswas vs State of West Bengal, [1972] 3 S.C.C. 831; Haradhan Saha vs The State of West Bengal and Anr. ; ; Kanchanlal Maneklal Chokshi vs State of Gujarat & ors. ; , ; Dr. Ram Manohar Lohia vs State of Bihar & ors.; , ; Arun Ghosh vs State of West Bengal, ; Nagendra Nath Mondal vs State of West Bengal, 11972] 1 S.C.C. 498; Nand Lal Roy alias Nonda Dulal Roy vs State of West Bengal, ; S.K. Kedar vs State of West Bengal, ; Ashok Kumar vs Delhi Administration, ; State of U.P. vs Hari Shankar Tewari, ; ; Masood Alam vs Union of India, A.I.R. 1973 S.C. 897; Rameshwar Shaw vs District Magistrate Burdwan State of Andhra Pradesh & ors. ; , ; Ramesh Yadav vs District Magistrate, Etah and others, A.I.R. 1986 S.C. 315; Abdul Gaffer vs State of West Bengal, A.I.R. 1975 S.C. 1496 and Sudhir Kumar Saha vs Commissioner of Police, Calcutta, ;

Presidential Orders dated 27th April 1960 and the var ious orders and circulars issued pursuant thereto by the Home Ministry, P & T Department and Railway Board, compel ling attendance in "Hindi in service training" as part of duty and providing for penal consequences for non attendance were quashed by the Madras High Court as being inconsistent with section 3 of the as amended by Act 1 of 1968 which was law made by Parliament under article 343(3) of the Constitution. In appeals to this Court on certificates, the appellant Union contended: (i) The instructions were aimed at promoting the policy of the constitutional revisions that Hindi should be the official language of the Union; (ii) No employee was placed at a disadvantage even if one could not qualify oneself in Hindi because no penalty was prescribed for an employee who did not attain any particular standard; and (iii) The Government was within its rights to issue orders obliging its employees to take training in Hindi language, so that ultimately when Hindi became the language of the Union they could perform their duty in an efficient and smooth manner. The respondents reiterated their stand, namely, (i) Article 343 of the Constitution is transitional and directions of the President are limited to the period of 15 years from the commencement of the Constitution in view of the provision in Articles 343, 344(1), 344(2)(a) and (b), 344 (3), 344 (6) indicating that directions should relate to purposes of subclauses (a) to (e) of Article 344(2); (ii) When the embodied the field covered by Parliamentary legislation, the Presidential Order would not have any effect; (iii) The Presidential Order is inconsistent with section 9 (4) of the as amended in 1968 and to that extent void; and (iv) Under section 3(4) of the , persons were not to be placed at a disadvantage on the ground that they do not have proficiency in both the languages, namely, English and Hindi. Dismissing the writ petitions and allowing the appeals, HELD: (1) The Presidential Orders dated 27th April 1960 and the various orders and circulars issued by Home Minis try, P & T Department and Railway Board pursuant thereto are valid. [323H] (2) The Presidential Order was validly made and there has been and can be no challenge to it. The President Order keeps in view the ultimate object to make the Hindi language as official language, but takes into note the circumstances prevailing in our country and considers it desirable that the change should be a gradual one and due regard should be given to the just claims and the interests of persons belonging to the non Hindi speaking areas. The purpose of the Presidential Order is to promote the spirit of the Hindi language and to provide the Central Government employees the facilities to take training in Hindi language when they are in service. [322F G] (3) The provisions in article 344 indicate that if there is a Second Commission at the expiration of ten years from the commencement of the Constitution, the President, may after consideration of the report, issue directions at the end of fifteen years. The provisions contained in article 344(6) are not exhausted by using it once. The President can use it on more than one occasion. Further the effect of the power used cannot be said to be exhausted on the expiry of fifteen 315 years. The Presidential Order which was issued in 1960 continues to be in force and cannot be said to have exhaust ed itself at the end of fifteen years from the commencement of the Constitution. It would be strange that the steps necessary for the change should be given up at the. expiry of fifteen years because what is said to be a switch over from English to Hindi has not been possible and Parliament provided by law for the continued use of the English lan guage for particular purposes specified in that law. [322D F] (4) Article 344 is enacted for the purpose of achieving the object of replacing English by Hindi within a period of 15 years. The ultimate object is provided in article 351 which fulfils the object of the spirit and development of the Hindi language and enlargement of the composite culture of India, Articles 343 and 344 deal with the process of transi tion. Article 343(3) provides merely for extension of time for the use of English language after the period of 15 years. The progressive use of the Hindi language is thereby not to be impaired. Extending the time for the use of the English language does not amount to abandonment of progress in the use of Hindi as the official language of the Union. [321G H, 322A B] (5) Article 344(6) provides that notwithstanding any thing in article 343, the President may after consideration of the report of the committee issue directions. The non obstante clause in article 344(6) does not operate only against article 344(1) and (2) but against the entire article 344 for the reason that so far as transition is concerned, the direc tions under article 344(6) may continue. Article 344(6) takes this objective and is intended to determine the pace of progress and to achieve the same. [322B C] (6) The High Court failed to see the sequences of the Presidential Order and the . It is erroneous to suggest that the Presidential Order of 1960 became invalid after the passing of the Act. The Act merely continues the use of English language in addition to Hindi. The Act does not provide anything which can be interpreted as a limitation on the vower of the President to issue directions under article 344(6) of the Constitution. The Presidential Order has no inconsistency with the Act. The non obstante provision in article 344(6) empowers the Presi dent. [322G H, 323A B] (7) Parliament is legislating in a different field. The field is the permissible use of English language in addition to Hindi during the period following 15 years because the change to Hindi could not be complete. The trasitional period has exceeded 15 years. The Presidential Order keeps in view the steps to replace the use of English in Hindi and the application of the Act and the Presidential Order is in different fields and has different purposes. The Offi cial Languages Act is to continue the use of English lan guage after the expiry of 15 years, but Presidential Order, on the other hand is, to provide for the progressive use of Hindi language. It confers an additional qualification on those who learn Hindi and does not take away anything from the Government employees. Prizes are offered and there may be increase in pay. These are incentives. The measures taken for enforcement of provisions for learning Hindi by providing for absence from classes as breach of discipline and insisting on appearance at the examinations are steps in aid of fulfilling the object of what is described as in service, training in Hindi language. Such enforcement of attendance in examinations for proficiency if necessary for completion of training. The contention that the Presiden tial. Order conflicts with section 3(4) of the Act is unsound. The "In service training" of the employees is during hours of duty and free of cost. Even if they fail, there is no penalty. There is no treatment of unequals alike.[323 B H] [323B F] Murasoli Maran etc. vs Union of India & Ors. 1972 Madras 40 reversed.

The appellants and the petitioners challenged the vires of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, on the ground that it was violative of articles 14, 19, and 31 of the Constitution. Their case was that their lands in the Gudalur Taluk, in the State of Tamil Nadu, were previously Janmam estates, but, subsequently became ryotwari estates, especially after the Resettlement of 1926,and as such, the provisions of the Act were not applicable to these lands; that so far as the forest areas in the Janmam lands in question were concerned they did not constitute "estate"; and that the acquisition of the lands was not for implementing agrarian reforms and, therefore, did not get the protection of article 31A. HELD : that the provisions of section 3 of the Act in so far as they related to the transfer of forests 'in Janmam estates to the government were not protected by article 31A, and, being violative of the Constitution had to be struck down; and that the vires of the Act in other respects had to be upheld. (i) The effect of the Resettlement of 1926 was to retain the Janmam estates and not to abolish the same or to convert them into ryotwari estates. There was merely a change of nomenclature. Government Janmam lands, were called the new holdings while private Janmam lands were called the old holdings. In respect of Janmabhogam (Janmi 's share) relating to government Janmam lands, the order further directed that the amount to be paid to the government should include both the taram assessment and Janmabhogam. It is difficult to infer from these that Janmam rights in the, lands in question were extinguished and converted into ryotwari estates. The use of the word Janmabhogam, on the contrary, indicates that the rights of Jenmis were kept in tact. [271B] Kottarathil Kochuni and Others vs The State of Madras and Others, , Karimbil Kunhilkoman vs State of Kerala, [1962] 1 Supp. S.C.R. 847 and Secretary of State vs Ashtamurthi, I.L.R. 13 Madras 89, referred to. The grant of a right of relinquishment to a Janmi would not by itself convert janmam rights in the lands into ryotwari estate. [272A B] 259 (Khanna, J.) Further, apart from the lands in question, there are no janmam estates in the State of Tamil Nadu (Madras). To hold that the Janmam rights in the lands ceased to exist after the Resettlement of 1926 would have the effect of rendering the words, in clause (2)(a)(i) of article 31A, wherein there is a reference to Janmam rights in the State of Madras meaningless and without any purpose. [272 D] (ii)As Janmam lands fall under clause (2) (a) (i) of article 31A it is not essential to show that the requirements of clause (2)(a)(iii) too are satisfied for such lands and it would make no difference whether forests are a part of the Janmam lands. All lands which are part of a Janmam estate of a Janmi in the State of Madras and Kerala would constitute "estate" as mentioned in Clause (2) (a) (i) of Article 31A. [273 E] (iii)The object and general scheme of the Act is to abolish intermediaries between the state and the cultivator and to help the actual cultivator by giving him the status of directs relationship between himself and the State. The Act, as such, in its broad outlines,, should be held to be a measure of agrarian reform and would consequently be protected by article 31A of the Constitution. Therefore, it is immune from attack on the ground of being violative of articles 14, 19 or 31. [274 A] Vajrayelu Madaliar vs Special Deputy Collector, Madras & Anr. ; , referred to. (iv)But, the acquisition of forests in Janmam estates is not in furtherance of the objective of agrarian reform, and, as such, is not protected by article 31A. In the absence of anything in the Act to show the purpose for which the forests are to be used by the Government, it cannot be said that the acquisition of the forests in Janmam land would be for a purpose related to agrarian reform. The mere fact that the ownership of forests would stand transferred, to the State would not show that the object of the transfer is to bring about agrarian reform. Augmenting the resources of the State by itself, and in the absence of anything more re garding the purpose or utilisation of those resources cannot be held to be a measure. of agrarian reform. There is no material on the record to indicate that the transfer of forests from the Janmi to the Government is linked in any way with a scheme of agrarian reform or betterment of village ceremony. [274 H] State of Uttar Pradesh vs Raja Anand Brahma, [1967] 1 S.C.R. 362, held inapplicable.

The respondent challenged the appellant selection to the Madras Legislative, Council from the Madras District Graduates ' Constituency on the grounds, (1) that, the purpose of article 171 of the Constitution was to confer a right of functional representation upon persons possessing certain educational or other qualifications so that the appellant who was not a graduate could not be elected to the Legislative Council from the Graduates ' Constituency; (2) that, it would be absurd and destructive of the concept of representation that an individual, who did not possess the essential or basic qualification of the electors, should be their representative, and (3), that, the Constitution, being an organic instrument, must be interpreted in a broad and liberal manner so as to give effect to the underlying principles and purposes of the system of representation sought to be embodied in it. The High Court set aside the election. Allowing the appeal to this Court, HELD: (1) (a) Graduates are not an occupational or vocational group, but merely a body of persons with particular educational qualifications. It would, therefore, not be correct to describe the additional representation sought to be given to them in the Legislative Council as an attempt to introduce functional or vocational representation. [181B] (b) The qualifications of the elector constituting the electorate, and of those who can represent each electorate, contemplated by the Constitution and supplemented by Parliament, are separately set out for each House. As regards the Legislative Council, the qualifications for the four electorates are indicated in article 171 (3) (a), (b), (c) and (d). The plain and ordinary meaning of the term "electorate is that it is the body of persons who elect. It does not take in the extended notion of a body of persons electing representatives from amongst themselves. It does not impose a requirement that the person to be chosen must also be a member of the electorate. [177D F] (c) The qualifications of candidates for seats in the Council are given in section 6 of the Representation of the People Act, 1951. While a member of the Legislative Assembly should also be an elector in the constituency from which he stands, the member of the Legislative Council is not so required to be a member of the electorate. All that is required is that the person to be chosen as a member of the Legislative Council should be an elector for an Assembly constituency in the State to whose Legislative Council he is chosen. [179E] (d) Whatever may have been the opinions of the Constitution makes or their advisors it is not possible to say, on a perusal of article 171, that the Second Chamber found here were meant to provide for functional 173 or vocational representation. AR that can be inferred is that additional representation or weightage was given to persons possessing special types of knowledge and experience by enabling them to elect their special representatives. The concept of such representation does not carry with it the further notion that, the representative must also possess the very qualifications of those he represents. The High Court erroneously travelled outside the four corners of the statutory provisions when there was no ambiguity at all in the language, and by resorting to a presumed legislative intent, it added a qualification to those expressly laid down in the Constitution and other statutory provisions. [1 80F] Davies Jankins & Co. vs Davies, 1967 (2) W.L.R. p. 1139 (a_) 1156, inferred to. 2(a) Article 171 is designed only to give a right to choose their representatives to those who have certain types of presumably valuable knowledge and education. If the presumption of their better competence to elect a suitable representative is there, it would be for the members of such a constituency themselves to decide whether a person who stands for election from their constituency possesses the right type of knowledge , experience and wisdom. The Constitution makers, acting on such a presumption, may have intentionally left the educational qualifications of candidate for election from the Graduates Constituency unspecified. [181C] (b) It could not possibly be said that the question to be dealt with was not known to the legislators. The provisions of law show that the qualifications of the electors as well as of those to be elected were matters to which the attention of the law makers, both in the Constituent Assem bly and in Parliament, was specifically directed. Hence, the omission must have been deliberate. [181G] R. vs Cleworth, (1864) 4 BSS 927 and Craies on Statute Law6th Edn. 1963 72, referred to. (c) The legislative history of the Article also shows that the omission by the Constitution makers or by Parliament, to prescribe graduation as a qualification of the candidate from the Graduates ' constituency, was deliberate. The provisions of the Government of India (Provincial Legislative Assemblies) Order, 1936, prescribing the qualifications of persons to be chosen from special constituencies set up for representation in the Legislative Councils under the Government of India Act, 1935, indicate that it was invariably expressly provided where it was so intended, that a necessary qualification of a candidate for a seat was that he should be entitled to vote for the choice of a member to fill it. Such a qualification was not left to mere implication. [181H 182E] (3) It is true that a constitution should be interpreted in a broad and generous spirit, but the rule of "plain meaning" or "literal" interpretation could not altogether be abandoned. The object of interpretation is to discover the intention of the law makers, and this object can obviously be best achieved by first looking at the language used in the relevant provisions. A logical corollary of the rule of literal interpretation is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made; and an application of this rule necessarily involves that addition to, or modification of, words used in statutory provisions is not generally permissible. Courts may depart from this rule only to avoid a patent absurdity. [175D] Sri Ram Narain Medhi & Ors. vs The State of Bombay, A.I.R. ; British India General Insurance Co. Ltd. vs Captain 174 itbar Singh & Ors., ; R. C. Jacob vs Union of India; , ; State of Madhya Pradesh vs M/s. Azad Bharat Finance Co. & Anr. A.I.R. 1967 S.C. 276; Hira Devi vs District Board, Shabiahanpur, ; & 365, referred to. From the language as well as the legislative history of articles 171 and 173 of the Constitution and section 6 of the Representation of the People Act, 1951, it could be presumed that the omission of the qualification that the representative of graduate should also be a graduate was deliberate. By presuming such an intention of the law makers, no absurdity results. By adding 'deemed to be necessary ' or 'implied ' qualification of a representative of the graduates, which the Constitution makers or Parliament could easily have imposed, the Court would be invading the legislative sphere. [183F]

145 and 149 to 158 of 1959. Writ Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. Sardar Bahadur, for the petitioners. C. K. Daphtary, Solicitor General of India, R. Ganapathy Iyer and T. M. Sen, for the respondents. March 30. The Judgment of the Court was delivered by WANCHOO, J. These eleven petitions raise a common point and will be disposed of together. The brief facts necessary for present purposes are these. The petitioners are dealers in motor spirit in Hyderabad. In 1949 the Hyderabad Sales of Motor Spirit Taxation Regulation, No. XXIV of 1358 Fasli (hereinafter called the Regulation) was passed and the petitioners were registered as retail dealers of petroleum products under the Regulation. In 1957 the petitioners and others filed writ petitions in the High Court of Andhra Pradesh questioning the validity of the Regulation. There was also a prayer for stay of the levy and collection of the tax and the High Court ordered that all further proceedings in the matter of levy, demand and collection of tax including cancellation of registration certificate and threatened attachment of property and the launching of criminal proceedings in pursuance of the Regulation be stayed. The petitioners allege that on this stay being granted by the High Court, they thought that section 3 of the Regulation was suspended during the period of stay and therefore they stopped collecting the tax from consumers. While these petitions were pending in the High Court, the Madras Sales of Motor Spirit Taxation (Andhra Pradesh Extension and Amendment) Act, No. V of 1958 (hereinafter called the Act), was passed by which 696 the Madras Sales of Motor Spirit Taxation Act, No. VI of 1939 was applied to Andhra Pradesh with some modifications and the Regulation was repealed. This Act, like the Regulation, had provisions for registration of dealers and in consequence fresh registration certificates were issued to the petitioners as well as to all other dealers in the State. In August 1958 the petitions challenging the validity of the Regulation were dismissed. In September 1958 notice& were issued to the petitioners informing them that they had failed to submit returns showing sales of motor spirit from March 1957 to March 1958 and they were required to submit returns within seven days, failing which best judgment assessments would be made under the relevant provision of the Regulation. The petitioners made repre sentations against this order and their main case was that they had not collected any tax from consumers during this period and it would therefore be harsh to demand tax from them in the circumstances. Thereupon it is said that best judgment ' assessments were made against the petitioners and they were required to pay the tax, though liberty to pay in installments was granted to them for this purpose. As however the petitioners failed to deposit the tax even in installments, the registration certificate of one of the petitioners was cancelled and other petitioners were threatened with cancellation of their registration certificates about October 1959. Consequently, the present petitions were filed soon after challenging the provisions of the Act relating to cancellation of registration certificates on the ground that such cancellation was not a reasonable restriction on the fundamental rights of the petitioners to carry on business under article 19 (1) (g) of the Constitution. The petitioners therefore pray for a declaration that sub sections (1) and (6) of section 4 of the Act and r. 14 purported to be framed thereunder are ultra vires as being violative of article 19 (1) (g) of the Constitution and for consequential orders against the respondents, namely, the State of Andhra Pradesh and its officers, from enforcing the said provisions. The petitions have been opposed by the respondents 697 and their case is that the provisions in question are reasonable restrictions on the right guaranteed under article 19 (1) (g) and are therefore perfectly valid and constitutional. The respondents also say that the allegation of the petitioners that they did not collect the tax during the period of the stay orders from consumers is false. In order to decide the constitutionality of the provisions which have been challenged it is necessary to look into the purpose and object of the Act in which those provisions appear. The Act was passed in order to levy and collect tax on retail sales of motor spirit in the interest of the general revenues of the State. Section 2 of the Act is the definition section. Section 3 is the charging section and provides the rates at which the tax is to be levied on all retail sales of motor spirit. Section 4 (1) which is being challenged is in these terms: "No person shall, after the commencement of this Act, carry on business in motor spirit as an importer or as a wholesale or retail dealer at any place in the State unless he has been registered as such under this Act. " Sub sections (2) and (3) make certain ancillary provisions and sub section (4) is in these terms: "Registration may be made subject to such conditions, if any, as may be prescribed including in the case of an applicant for registration as a retail dealer, the making of such deposit or the furnishing of such security as the registering authority may consider necessary to ensure the due payment of the tax which may from time to time be payable by him." Sub section (5) is unnecessary for our purpose, and sub section (6) is in these terms: "Any registration under sub section (1) may be suspended or cancelled by such authority, for such reasons, and in such manner, as may be prescribed. " It is not necessary to refer to other sections which make various provisions necessary for the enforcement of the Act till we come to section 26 which gives power to 88 698 the State Government to make rules to carry out the purposes of the Act. Rule 14 which has been attacked has been made under the power conferred under section 26 and it is not being disputed that if the main provisions contained in section 4 are constitutional, the rule is within the ambit of the Act and the rule making power of the State Government. It will be clear from this analysis of the impugned provisions of the Act that the purpose and object of the Act is to levy and collect tax for purposes of the general revenues of the State and the liability for payment is placed under section 3 upon the person effecting the sale. He is required by section 5 of the Act to keep books of account in the prescribed form and to submit to the Commercial Officer and to such other officers as may be prescribed, a I return in such form, 'containing such particulars and at such intervals, as may be prescribed. Along with the return, under section 6 he is required to pay the amount of tax due in respect of the motor spirit sold by him in retail during the preceding month according to the return. In order therefore that the State may have a check on the person from whom the tax is due section 4(l) provides for registration of dealers who carry on the business in motor spirit. Without such registration it would be impossible for the State to know the persons who are selling motor spirit and from whom the tax is due. The provision therefore under section 4(l) for registration of dealers is an eminently reasonable provision in order to carry out the object of the Act, namely, the levy and collection of this tax for purposes of the State. It is really no restriction on carrying on business in motor spirit; any one who carries on such business is free to do so and all that he has to do is to ask for registration, which he will get subject to the provisions of sub section That sub section has not been challenged in these petitions and therefore we proceed on the assumption that it is constitutional. It follows therefore that all that anyone who wants to carry on business in motor spirit has to do is to ask for registration which he will get under the rules, and the purpose behind registration is that those on whom the liability to pay tax 699 that it may realise the tax from them. The challenge therefore to the constitutionality of section 4(1) must fail. Then we turn to sub section (6), which provides that any registration under sub section (1) may be suspended or cancelled by such authority, for such reasons, and in such manner, as may be prescribed. The main attack of the petitioners is on this sub section. They contend that this sub section authorises the State to cancel a registration. The effect of such cancellation read with sub section (1) is that a person whose registration is cancelled cannot carry on business in motor spirit as he was doing before the cancellation. It is said that cancellation results in the total extinction of the business of the person whose registration is cancelled and thus the provision as to cancellation is an unreasonable restriction on the fundamental right to carry on business. There is no doubt that if a registration is cancelled under sub section (6) it will not be possible for the person whose registration is so cancelled to carry on his business in motor spirit. Rule 14 provides conditions under which the registration may be cancelled and we are in the present case concerned with two of them, namely, where the holder of at. registration certificate (a) fails to pay the tax or any other amount payable under the Act and (b) fraudulently evades the payment of the tax. The reasonableness of this provision as to cancellation of registration certificate has to be judged in the background of what we have already said about the purpose of the levy and its liability on the seller. It is true that there are other provisions in the law for realisation of public dues from those who default in making payments; but generally speaking cancellation of registration in cases like these is one more method of compelling payment of tax which is due to the State. Collection of revenue is necessary in order that the administration of the State may go on smoothly in the interest of the general public. The State has therefore armed itself with one more coercive method in order to realise the tax in such cases. It is true 700 that cancellation of registration may result in a dealer being unable to carry on the business, but the same result may even follow from the application of other coercive processes for realisation of dues from a trader, for his assets may be sold off to pay the arrears of tax and lie may thereafter be not in a position to carry on the business at all. Therefore the provision for cancellation of registration for failure to pay the tax or for fraudulently evading the payment of it is an additional coercive process which is expected to be immediately effective and enables the State to realise its revenues which are necessary for carrying on the administration in the interest of the general public. The fact that in some cases restrictions may result in the extinction of the business of a dealer would not by itself make the provision as to cancellation of registration an unreasonable restriction on the fundamental right guaranteed by article 19(1)(g). We may in this connection refer to Narendra Kumar vs The Union of India (1), where it was held that: "the word 'restriction ' in articles 19(5) and 19(6) of the Constitution includes cases of 'prohibition ' also; that where a restriction reaches the stage of total restraint of rights special care has to be taken by the Court to see that the test of reasonableness is satisfied by considering the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, the beneficial effect reasonably expected to result to the general public, and whether the restraint caused by the law was more than was necessary in the interests of the general public. " Applying these tests we are of opinion that the cancellation of registration will be justified even though it results in the extinction of business as such cancellation is in respect of a tax meant for the general revenues of the State to carry on the administration in the interest of the general public. (1) ; 701 Besides, there is another consideration to which we may advert in the end, though even otherwise the cancellation is justified. Though there is no provision in the Act or the Rules specifically authorising the seller to pass on the tax to the consumer, what actually happens is that the seller includes the tax in the price and thus passes it oil to the consumer. Then in his turn the seller pays the tax to the State. In effect by thus passing on the tax to the consumer through the price, the dealer has already collected the tax. Therefore the compulsion of payment which arises because of the provision for cancellation of registration is under the circumstances justified and there is no reason why he should fail to pay it to the State or evade payment thereof fraudulently. The fault for failure to pay the tax or fraudulent evasion in payment thereof lies in the circumstances entirely on the dealer and he cannot be heard to complain that cancellation of registration in such a case is a disproportionate restriction on the right to carry on business which cannot be justified in the interests of the general public. Under the circumstances we are of opinion that the ratio of Narendra Kumar 's case (1) applies fully to the present case and the provision contained in sub section (6) of section 4 is a reasonable restriction within the meaning of article 19(6) of the Constitution. The petitions therefore fail and are hereby dismissed with costs; there will be one set of hearing costs only. Petitions dismissed.

The Madras Sales of Motor Spirit Taxation Act (Mad. VI of 1939) was made applicable to the, State of Andhra Pradesh by the Madras Sales of Motor Spirit Taxation (Andhra Pradesh Extension and Amendment) Act (Andhra Pradesh V of 1958). The purpose and object of the Act was to levy and collect tax on retail sales of motor spirit and the liability for payment was placed upon the person effecting the sale. In order that the State may know the persons from whom tax was due section 4(1) provided for registration of dealers and section 4(6) provided for the suspension of such registration in the event of some contraventions. All that any one who wanted to carry on business had to do was to ask for registration which he would get under the rules. The petitioners who were dealers in motor spirit in Hyderabad filed writ petition challenging the provisions of the said section 4 Of sub sections (1) and (6) on the ground that such registration and cancellation were not reasonable restrictions on the fundamental rights of the petitioners to carry on business under article 19(1)(g) of the Constitution particularly as the cancellation of registration resulted in the total extinction of the business and was an unreasonable restriction and prayed that sub sections (1) and (4) Of section 4 Of the Act and r. 14 framed under section 26 of the Act be declared ultra vires. Held, that the provisions of section 4(1) of the Act were consti tutional. Registration of dealers under section 4(1)was an eminently reasonable provision in order to carry out the object of the Act, the purpose behind the registration being that those on whom the liability to pay tax under section 3 of the Act lay, were known to the State, so that it could realise the tax from them. The provision Of section 4(6) for cancellation of registration for failure to pay the tax or for fraudulently evading the payment of it was an additional coercive process which was expected to be immediately effective and enabled the State to realise its revenue. The fact that in some cases restriction might result in the extinction of the business of a dealer would not by itself 695 make the provision as to cancellation of registration an un reasonable restriction on the fundamental right guaranteed by article 19(1)(g) of the Constitution. Narendra Kumar vs The Union of India, ; , referred to.

The respondent was a registered dealer under the Assam Sales Tax Act, 1947. The Sales tax Officer assessed the respondent to Sales tax in respect of the containers of hydrogenated oil and other exempted goods. Appeals to the Assistant Commissioner of Taxes failed as also second ap peals to the Assam Board of Revenue. In reference the High Court held that the value of the containers was not assessable to sales tax "unless separate price has been charged for the containers. " This finding was based on the view that there was no evidence to show that actually separate price was paid for the containers and hence there was no sale and there could not be any tax on the containers. In appeal to this Court by the Commissioner of Taxes it was urged that the parties may have intended in the circumstances to sell the hydrogenated oil apart from the containers the mere fact that the price of the containers was not separately fixed would make no difference HELD : The question as to whether there is an agreement to sell packing material is a pure question of fact depending upon the circumstances found in each case. The High Court was in error when it answered the question of law referred to it without addressing itself to the question whether there was an express or implied agreement for the sale of the containers of hydrogenated oil in the present case. [963 HI Hyderabad Deccan Cirgrette Factory vs State of Andhra Pradesh, 17 S.T.C. 624, relied on.

The petitioner was a company manufacturing Indian made foreign liquor in Himachal Pradesh and Uttar Pradesh. It had depots for sale of its products at Patna and Ranchi in the State of Bihar. Before October 13, 1967 it .imported foreign liquor into the State of Bihar from Himachal Pradesh and Uttar Pradesh for purposes of sale at its Patna and Ranchi depots on payment of duty at the then current rate. Duty on liquor from Himachal Pradesh was paid upon or before importation by making deposits in the State Bank of India at Patna and Ranchi. Duty on liquor from Uttar Pradesh was paid on importation by making deposits with the government of that State. By notification dated October 13, 1967 duty on foreign liquor was enhanced with. effect from November 1, 1967. The Superintendent of Excise, Patna directed the company to pay the, difference in duty on the opening balance of Indian made foreign liquor in its stock on November 1, 1967. The company challenged the demand in a writ petition under article 32 of the Constitution. Apart from sections 27 and 28 of the Act the respondent State relied on the proviso to r. 147 of the Rules made under section 90 of the Act. HELD i (i) The foreign liquor was imported before November 1, 1967 on payment of duty at the current rate in the manner indicated in section 28(a)(i). Duty on imported foreign liquor was enhanced with effect from November 1, 1967. Sections 27 and 28 did not authorize the levy of the enhanced duty on the liquor imported before November 1, 1967 but lying with the importer on that date. (ii) A close scrutiny of r. 147 reveals that the main part and the proviso deal with the same subject matter. The expression "an excisable article" in the proviso means foreign liquor imported under .bond and other articles on which duty is payable. before removal from the excise warehouse or distillery where they are kept. It is for this reason that under the proviso the difference of duty is realised from or credited to the licensee to whom the article has been issued from the excise warehouse or distillery on payment of duty prior to such revision. The proviso does not apply to all imported foreign liquor. It applies only to foreign liquor imported under bond, that is to say, foreign liquor on which duty has been levied under section 28(a)(ii) by payment upon issue, for sale from an excise warehouse. It does not apply to foreign liquor not imported under bond upon which duty has been levied under section 28(a)(i). The petitioner 's foreign liquor was not imported under bond. The petitioner was therefore not liable to pay under the proviso 3 Sup. C.I./69 12 458 to r. 147 the difference of duty in respect of its stock of foreign liquor on November 1, 1967. The demand for payment of the difference of duty in respect of this stock was not authorized by the Act or the proviso to r. 147. [460 C F]

The respondents brought a suit for a mandatory injunction directing the removal of certain masonry structure on suit site and for a permanent injunction restraining the appellants from encroaching upon the suit property and from causing obstruction to the right of way of the residents of the village. They claimed that the suit property formed part of a public street and the appellants had no right to encroach upon it. The appellants claimed the suit property as absolute owners and as such, they were entitled to use it in any manner they pleased. The trial. Court decreed the suit. On appeal, the learned Subordinate Judge set aside the decree. On challenge of this decree by the respondents in second appeal before the High Court, the learned single Judge passed a decree in their favour. All that the learned Judge stated in his judgment was that "after a careful consideration of all the issues that arise for decision in this second appeal, I am of the opinion that the best form in which a decree could be given to the plaintiffs is in the following terms" and then he proceeded to set out the terms of his decree. On appeal by Special Leave the appellants contended that the method adopted by the learned Judge in disposing of the second appeal before him clearly shows that the judgment delivered by him cannot be sustained. The respondents, raised a preliminary objection that since the appellants did not avail themselves of the remedy available to them under the Letters Patent of the High Court either the special Leave granted by this Court should be revoked, or the appeal should be dismissed. Held: It would not be possible to lay down an unqualified rule that special leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case special leave has been granted, it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this Court under article 136, it is not possible and, indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this Court under article 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case. 50 Raruha Singh vs Achal, A.I.R. 1961, S.C. 1097, referred to. In the present case, the learned Judge passed an order which reads more like an award made by an arbitrator who, by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by the High Court in dealing with second appeals, it must obviously be corrected and the High Court must be asked to deal with the matter in a normal way in accordance with law. Therefore, the decree passed in second appeal, must be set aside on the ground that the judgment delivered by the learned Judge did not satisfy the basic and legitimate requirements of a judgment under the Code of Civil Procedure.

Through this petition filed under Article 32 of the Constitution the petitioner prayed for the issue of a writ in the nature of quo worranto to the respondent K.P. Tewari who had been appointed in November, 1984 as a Minister of the Government of Uttar Pradesh under Article 164(1) of the Constitution by the Governor of the State of Uttar Pradesh even though Shri Tewari was not a member of either House of the State Legislature. The petitioner contended (i) that in the judgment of Har Sharan Verma vs Shri Tribhuvan Narain Singh, Chief Minister of U.P. and Anr., (AIR where it had been held that the appointment of a person as Chief Minister could not be challenged on the ground that he was not a member of the Legislature of a State at the time of appointment, this Court had not considered the effect of the amendment of Article 173 (a) of the Constitution by the Constitution (Sixteenth) Amendment Act, 1963; (ii) that after the amendment of Article 173 of the Constitution by the Constitution (Sixteenth) Amendment Act, 1963 it was not open to the Governor to appoint a person who was not a member of the Legislature of the State as a Minister and that Article 164(4) of the Constitution would only be applicable to a person who had been a Minister but who ceased to be a member of the Legislature for some reason such as the setting aside of his election in any election petition; and (iii) that the debates of the Constituent Assembly suggested that a person should be a member of the Legislature at the time of his being chosen as a Minister. Dismissing the petition, ^ HELD: (I) By the Sixteenth Amendment clause (a) of Article 173 of the Constitution is amended by the addition of a clause which requires a candidate at an election to the Legislature to make and subscribe before some person authorised in that behalf by the Election Commission an oath or affirmation 548 according to the form set out for the purpose in the Third Schedule to the Constitution. Earlier it was only after a person was elected or nominated as a member of the Legislature of a State that he was required by Article 188 of the Constitution to make and subscribe an oath or affirmation before taking his seat as such member in the form mentioned in the Third Schedule to the Constitution. The above requirement has to be complied with by an elected or nominated member of the State Legislature even after the Sixteenth Amendment. [550H; 551A; E;H] (2) The object of introducing the amendment in clause (a) of Article 173 of the Constitution was to provide that not only before taking his seat shall a member of the Legislature take the oath prescribed by the Third Schedule as required by Article 188 of the Constitution but that even before standing for election, a candidate must take the same oath. This is to ensure that only a person having allegiance to India shall be eligible for membership of the Legislature. [552C D] (3) Article 177, ensures the implementation of the constitutional principle contained in clause (2) of Article 164 of the Constitution which provides that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. A Minister in a State under our Constitution discharges that responsibility by virtue of the provisions contained in Article 177 of the Constitution which enables him to participate in the proceedings of the Legislative Assembly even though he may not be its member with the right to vote.[553F;G] (4) It does not appear that the debates of the constituent Assembly suggest that a person shall be a member of the Legislature at the time of his being chosen as a Minister. An amendment was proposed to that effect in the Constituent Assembly to the draft Constitution but was not accepted: [553H; 554A C] (5) The fear expressed by the petitioner that a person who does not owe his allegiance to the Constitution and is not willing to uphold the sovereignty and integrity of India would have an opportunity to become a Minister if he is not required to become a member of the Legislature after having made and subscribed an oath or affirmation as prescribed by Article 173(a) of the Constitution is not well founded because under clause (3) of Article 164 of the Constitution a Minister for a State is required to take an oath of allegiance to the Constitution and to undertake to uphold his office in the from prescribed in the Third Schedule. [554C E] (6) No material change has been brought about by reason of the amendment of Article 173(a) of the Constitution in the legal position that a person who is not a member of the State Legislature may be appointed as a Minister subject, of course, to clause (4) of Article 164 of the Constitution according to which a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister. [554H; 555A] (7) By enacting Article 164(4) of the Constitution the makers of the Constitution provided for a situation where a Minister may lose a seat in the 549 Legislature after appointment as the result of an election petition for example A Or may not be a member when he is appointed.[555B C] Har Sharan Verma vs Shri Tribhuvan Narain Singh, Chief Minister of U.P. and Anr., ; , Constitution Assembly Debates dated June 1 1949, Vol. VIII at p. 521 and Har Sharan Verma vs Chandra Bhan Gupta & Ors. , A.l.R. 1962 Allahabad 30], referred to.

On 30th June, 1969, State Government issued a notifica tion under Section 8A of the Karnataka Sales Tax Act, 1957, providing a package of reliefs and incentives including one concerning relief from payment of sales tax. A further notification dated 11th August, 1975 was issued, envisaging certain modified procedures for effectu ating the reliefs contemplated by the exemption notification of 30th June, 1969. For the assessment year 1976 77, the appellant made an application to the Respondent No. 1 on 10th November, 1976 for adjustment of the refunds against sales tax due and permission was granted with retrospective effect from 1st May, 1976 validating the adjustments, which the appellant had made during the interregnum. For the three subsequent years, viz., 1977 78, 1978 79 and 197980, similar applications, which were made on 29th March 1977, 20th March 1978 and 8th March 1979 respectively, remained undisposed of. In anticipation of the permission, appellant adjusted the refund against tax payable for these years and filed its monthly returns setting out adjustments so effected. 337 There was no dispute that the appellant was entitled to the benefit of the notification dated 30th June, 1969 and that the refunds were eligible to be adjusted against sales tax payable for respective years. The respondent No. 1 in his letter dated 27.3.1979 informed the appellant that the orders on appellant 's appli cation for permission would be passed only on receipt of the clarification from the Government on the matters. On 9th January, 1980, the appellant was issued three demand notices by the Commercial Tax Officer demanding payment of the sales tax, stating that as prior permission to adjust sales tax had not been considered by the respond ent No. 1, he was obliged to proceed to recover the taxes. Steps for recovery of the penalties were also initiated. The appellant moved the High Court for issue of writ of mandamus to quash the demand notices and the proceedings initiated for recovery of penalty under section 13 of the Act. The High Court dismissed the writ petition, against which the present appeal was filed. The appellant urged that indisputably the permission for the three years had been sought well before the commencement of the respective years but had been withheld for reasons, which were demonstrably extraneous; that the basic eligibil ity was conditioned by the notification of 30th June, 1969, which required a certificate from the Department of Indus tries and Commerce; that the requirement of the annual permission for adjustment envisaged by the notification of 11th August; 1975 was merely procedural, as clause 3 of the notification stipulated; and that if the conditions were satisfied, it was deemed that permission was given. The respondents contended that it was not as if the right to the refund was denied or defeated by the inaction of the Deputy Commissioner but only one mode of the refund by adjustment became unavailable; that the benefit envis aged by the notification of 11th August, 1975 was in the nature of a concession and that the appellant in order to avail itself of its benefit had to show strict compliance with conditions subject to which it was available; that where exemptions were concerned, the conditions thereof ought to be strictly construed and strict compliance with them exacted before a person could lay claim to the 338 benefit of the exemptions; and that if, in the meanwhile, the period itself expired, no relief was possible as quite obviously, the requirements of 'prior permission ' became impossible of compliance. Allowing the appeal, this Court, HELD: 1. The main exemption is under the 1969 notifica tion. The subsequent notification which contains condition of prior permission clearly envisages a procedure to give effect to the exemption. [347E F] 2. Clause 3 of the notification leaves no discretion to the Deputy Commissioner to refuse the permission, if the conditions are satisfied. The words are that he "will grant". There is no dispute that appellant had satisfied the conditions. Yet the permission was withheld not for any valid and substantial reason, but owing to certain extrane ous things concerning some interdepartmental issues. Appel lant had nothing to do with those issues. [347F H] 3. There was no other disentitling circumstance which would justify the refusal of the permission. Appellant did not have prior permission, because it was withheld by the Revenue without any justification. The High Court took the view that after the period to which the adjustment related had expired no permission could at all be granted. A permis sion of this nature was a technical requirement and could be issued making it operative from the time it was applied for. [349C D] 4. A distinction between the provisions of statute which are of substantive character and were built in with certain specific objectives of policy on the one hand and those which are merely procedural and technical in their nature on the other must be kept clearly distinguished. [347E G] 5. The choice between a strict and a liberal construc tion arises only in case of doubt in regard to the intention of the Legislature manifest on the statutory language. Indeed, the need to resort to any interpretative process arises only where the meaning is not manifest on the plain words of the statute. If the words are plain and clear and directly convey the meaning, there is no need for any inter pretation. [348F G] Assistant Commissioner of Commercial Taxes (Asstt.), Dharwar & Ors. vs Dharmendra Trading Co. & Ors., ; ; Wells vs Minister of Housing and Local Government, at 1007 339 and Union of India & Ors. vs M/s. Wood Papers Ltd. & Ors., [1991] JT (1) 151 at 155, referred to. Kedarnath Jute Manufacturing Co. vs Commercial Tax Officer, Calcutta & Ors., ; at 630 and Col lector of Central Excise, Bombay and Anr. vs Messrs Parle Exports (P) Ltd., ; , distinguished. Francis Bennion: "Statutory Interpretation", 1984 edi tion at page 683, referred to.

Petitioners firms were registered sales tax dealers. They manufactured and sold handicraft items. As they purchased raw material within the State against declaration forms ST 15 prescribed under Rule 21 of the Haryana general Sales Tax Rules read with Section 24 of the Haryana General Sales tax Act, purchase tax was not paid. The petitioners sold the items of handicrafts to dealers in Delhi who exported the same out of India. As the Delhi dealers issued Form H, prescribed under the Cectral Sales Tax Rules, they did not pay tax on the said sale/purchase. Following the High court decision in M/s. Murli Manohar and company, Panipat & ors. vs State of Haryana & Ors. C.W. P. No. 1227 of 1980. The Sales Tax Authorities levied purchase tax u/s 9 of the Haryana General Sales Tax Act for the assessment years in question on the purchase of raw material made by the petitioners, computing the tax with reference ' to the purchase value of the goods exported against Form H. Hence the present writ petition before this Court was filed challenging 454 155 the impugned order of levying purchase tax. Meanwhile this court allowed the appeals preferred against the decision of the High Court in Murli Manohar and Company 's case, setting aside the judgment of the High Court. As a common question arose in this batch of writ petitions, all petitions heard together. The petitioners contended that in view of the decision of this Court in Murli Manohar 1991 [1] SCC 377, the writ petitions were to be allowed. Disposing of the writ petitions, this Court, section HELD: 1.1,. The decision in Murli Manohar says that there can be only three types of sales, namely, intra state sales, inter state sales and export sales a nd no other. A sale to an exporter would be either at% intrastate sale or an inter state sale; in either case, the decision says, it does not attract the purchase tax(on raw material) under Section 9 of the Haryana General Sales Tax Act. However, in the light of the decision in Hotel Balaji, it must be held that there is one more category in addition to the three categories mentioned above. The fourth category is where a dealer in Haryana takes his goods (out of Haryana (without effecting a sale, within the State), and effects the sale in the other State. According to Section 9 of the Haryana Act, as explained in Hotel Balaji, purchase tax can be levied and collected on the raw material purchased by the manufacture within Haryana, which was utilised for manufacturing the goods so sold in the other State. (458 D F) Murli Manohar case. ; , followed. Good year India Lid. and Ors. vs State of Haryana and Anr. ; , referred to. Hotel Balaji and Ors. vs State of Andhra Pradesh & ors. J.T. explained 2.1. In a petition under article 32 of the Constitution it is not the province of the Supreme Court to go into facts. As repeatedly emphasised by this Court, the question whether a particular sale is an intra state sale, an inter state sale, an export sale within the meaning of Section 5(1) or a 456 penultimate sale within the meaning of section 5(3), or otherwise, is always a question of fact to be decided by the appropriate authority in the light of the principles enunciated by Courts. (459 C) 2.2. In these circumstances, it is directed that the matters be disposed of by the authorities under the Act in the light of the law declared by this Court in Murli Manohar, Hotel Balaji and in this judgment. (459 D)

On the surrender of the licence for the manufacture and supply of bottled arrack for the Chingleput District for the financial year ]982 83 by the then existing licensee, the Commissioner of Prohibition and Excise called for fresh applications from intending persons for the grant of licence under the Tamil Nadu Arrack (Manufacture) Rules, 1981 framed under the Tamil Nadu Prohibition Act, 1937. Two firms, namely, Majestic Bottling Company and Chingleput Bottlers, filed there applications and an enquiry with regard to them was held by the Assistant Commissioner. The Commissioner considered the report of enquiry, gave separate oral hearing to the two applicants and passed an order rejecting both the applications. As regards Majestic Bottling Company the Commissioner held that they did not satisfy the requirements of rr. 5(a) and 5(e). In the case of Chingleput Bottlers, he held that they did not satisfy the requirements of rr. 5(a), 5(c) and 5(e). While recording the finding in respect of Chingleput Bottlers, the Commissioner relied on a report of the Collector and other material gathered by him during the course of the enquiry, which included a representation from. Majestic Bottling Company against the application of Chingleput Bottlers. Both the applicants filed petitions under Article 226 of the Constitution questioning the orders passed by the Commissioner. A Single Judge of the High Court issued a writ of certiorari quashing the order of the Commissioner insofar as he rejected the application of Majestic Bottling Company and also issued a writ of mandamus ordaining the Commissioner to grant the licence to Majestic Bottling Company. As regards Chingleput Bottlers, the Single Judge rejected their contention that the Commissioner had acted in breach of rules of natural justice by his failure to furnish them the report of the Collector and observed that nothing precluded them from seeking perusal of the records or from making a demand for a copy of the same. 191 Both the applicants preferred appeals to the Division Bench. The State Government which was in possession of material adverse to the two partners of Majestic Bottling Company did not initially file a separate counter affidavit but only did so at the conclusion of the hearing. The Division Bench ruled that the order passed by the Commissioner must be adjudged by the reasons stated by him and those reasons cannot be supplemented by fresh reasons provided by the State Government in its belated affidavit and upheld the judgment of the Single Judge. The State Government and Chingleput Traders filed appeals against the judgment of the Division Bench. It was contended on behalf of the State Government that the grant of licence under r. 7 was subject to the prior approval of the State Government, that if the High Court was satisfied that the impugned order of the Commissioner was liable to be quashed on the ground that there was an error apparent on the face of the record, the proper course for it to adopt was to issue a writ of mandamus to the Commissioner to re determine the question of grant of such privilege and that the High Court had no power to issue a writ of mandamus directing the Commissioner to grant the licence in favour of Majestic Bottling Company. It was contended on behalf of Chingleput Bottlers that the Commissioner had acted in breach of rules of natural justice in not furnishing them a copy of the report submitted by the Collector and other material gathered by him during the course of the enquiry. Allowing the appeal of the State Government and dismissing the appeal of Chingleput Bottlers. ^ HELD: 1. No mandamus will lie where the duty sought to be enforced is of a discretionary nature nor will a mandamus issue to compel the performance by a public body or authority of an act contrary to law. [198H 199A] (a) In the instant case the Commissioner was under no legal duty to grant a licence to Majestic Bottling Company till he received the prior approval of the State Government under r. 7. Even assuming that the Commissioner recommended the grant of a licence to them under r. 7, tho State Government were under no compulsion to grant such prior approval. The grant or refusal of such licence was entirely in the discretion of the State Government. The High Court had no jurisdiction to issue a writ of mandamus to the Commissioner to grant a licence to Majestic Bottling Company contrary to the provisions of r. 7. [199 A C] de Smith: Judicial Review of Administrative Action, 4th Ed. 341 and 544: H.W.R. Wade: Administrative Law. 5th ed. p. 638; referred to. (b) Absence of a specific plea in the nature of demurrer would not invest the High Court with jurisdiction to issue a writ of mandamus ordaining the Commissioner to grant a licence under r. 7 without the prior approval of the 192 State Government which is a condition pre requisite for the grant of such privilege. The High Court was unduly technical in applying the rules of pleading and short circuited the whole procedure upon a wrongful assumption of its own powers. The view taken by it is manifestly erroneous; otherwise, the statutory requirements of such prior approval of the State Government under r. 7 would be rendered wholly otiose. [201 C E] K.N. Guruswamy vs Stare of Mysore,[1955] 1 S.C.R. 305; and P. Bhooma Reddy vs State of Mysore, ; ; distinguished. (c) It is not possible to accept the contention that no useful purpose would have been served by the High Court remitting the matter for the reconsideration of the Commissioner since it had already found that all the reasons that could be given for upholding the validity of the Commissioner 's order were bad and unsustainable. This was not a case where it could be said that there was nothing for the State Government to consider while examining the question whether it should accord or refuse prior approval to the grant of licence to Majestic Bottling Company under r. 7. One of the relevant factors that the State Government had to take into consideration was whether the partners of that Company were persons who would abide by the provisions of the Act and the rules. The facts disclosed in the counter affidavit of the State Government lay a serious charge against the partners of that Company and it was permissible for the State Government to take those facts as justification for refusal to grant prior approval under r. 7. [202C, 203A B, E F] (d) The proper course for the High Court to adopt was to issue a writ of mandamus directing the Commissioner to redetermine the question after following the procedure of r. 7 and in case he came to a decision to grant the licence in favour of Majestic Bottling Company, to refer the matter to the State Government for its prior approval. [206A B] M/s Hochtief Gammon vs State of Orissa, [1976] 1 S.C.R. 667; Padfield vs Minister of Agriculture, Fisheries and Food; , referred to. Gujarat State Financial Corpn. vs M/s. Lotus Hotels Pvt. Ltd., ; distinguished. State of Tamil Nadu vs C. Vadiappan, [1982] 2 Mad. L.J. 30; and K. Ramaswamy vs Government of Tamil Nadu (Writ Appeal No. 368 of 1981); overruled. It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. Strict adherence to the rules of natural justice is required where a public authority or body has to deal with rights. The audi alteram partem rule may not apply to cases which relate not to rights or legal expectation but to mere privilege or licence. An authority or body need not observe the rules of natural justice where its decision, although final, relates not to a 'right ' but to a 'privilege ' or 'licence '. All that is emphasised in such 193 cases is that the applications for grant of privilege or licence must be considered fairly. There are no inflexible rules of natural justice of universal application. Each case depends on its own circumstances. Rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act. [209C D G, 213D E G] The right to know the case to be met does not necessarily involve any right to know the source of adverse information or to confront the informants, for, in some cases it would be quite proper for the authority to employ confidential sources. [210B C] Ridge vs Baldwin: ; ; R. vs Gaming Board for Great Britain, ; ; R. Surinder Singh Kanda vs Government of the Federation of Malaya, L R. ; ; Breen vs Amalgamated, Engineering Union, ; Mac Innes vs Onslow Fane & Anr., Kishan Chand Arora vs Commissioner of Police, ; ; and Nakkuda Ali vs M.F. De section Jayaratne referred to. In the instant case there is nothing in the language of r. 7 to suggest that in refusing to grant the privilege, the Commissioner is obliged to act 'judicially '. The order refusing a licence under r. 7 is purely an administrative or executive order and is not open to appeal or revision. There is no lis between the Commissioner and the person who is refused such privilege. The power of refusal of licence unlike the power to grant is not subject to any pre condition. The grant of a liquor licence under r. 7 does not involve any right or expectation but it is a matter of privilege. The Commissioner was under no obligation either to disclose the sources of information or the gist of the information that he had. All that was required was that he should act fairly and deal with the applications without any bias, and not in an arbitrary or capricious manner. The Commissioner was entitled to act on the report of the Collector and also on other material gathered by him during the course of the enquiry. It cannot be said that the Commissioner in dealing with the applications did not act fairly in not furnishing a copy of the report of the Collector or in taking a representation from Majestic Bottling Company. There is also no suggestion of any mala fides on the part of the Commissioner or the State Government. [213G H, 214A B, C E, G H]

Appeal No.180 of 1959. Appeal from the judgment and order dated June 30, 1955 of the former Nagpur High Court in Misc. First Appeal No. 162 of 1949. 80 634 N. C. Chatterjee and B. P. Maheshwari, for the appellant. G. C. Mathur, for the respondents. March 29. The Judgment of the Court was delivered by HIDAYATULLAH, J. This appeal, by certificate under articles 132(l) and 133(l)(c) of the Constitution, has been filed against an order of the High Court at Nagpur dated June 30, 1955. Though the facts necessary to decide the appeal lie within a comparatively narrow compass, the case itself has had a long and somewhat unique history. In July, 1922, the Municipal Committee, Khandwa, resolved to impose a tax on the trade of ginning and pressing cotton by means of steam, or mechanical process, and after sundry procedure, a notification was published on November 25, 1922 in the Central Provinces and Berar Gazette, imposing the tax. Certain traders including the appellant, affected by the tax, filed suits seeking injunction against the Municipal Committee on the ground that the tax was invalid and illegal. Meanwhile, the Municipal Committee had served notices on the present appellant, and demanded and recovered the tax for 1923 24. The appellant then filed a second suit for refund of the tax paid by her on the ground that the imposition of the tax was illegal and ultra vires. The suits had varying fortunes in the Courts in India, till they reached the Privy Council. The Judicial Committee by its first decision remitted the cases for additional evidence, while the appeals were kept pending. The decision of the Judicial Committee is reported in Radhakrishan Jaikishan vs Khandwa Municipal Committee (1). After the additional evidence was received, the Judicial Committee pronounced its decision, which is reported in Badhakishan Jaikishan vs Municipal Committee, Khandwa (9). The Judicial Committee held that the tax was not validly imposed by the Municipal Committee, and reversing the decree of the Judicial Commissioner, decreed the suits. (1) (1933) L.R. 611 A. 125. (2) 635 The Provincial Legislature then passed the Khandwa Ginning and Pressing Cotton Tax Validating Act 8 of 1938, validating, the tax. The Act contained only one operative section, which read as follows: "2. Notwithstanding anything contained in the Central Provinces Municipal Act, 1903, or the Central Province Municipalities Act, 1922, or any decree or order of a civil court, the tax on the trade of ginning and pressing cotton by means of steam or mechanical process within the limits of the Khandwa municipality which was imposed by Notification No. 2639 1298 VIII, dated the 21st November, 1922, shall be deemed to have been legally imposed from the date of its imposition to the date on which this Act comes into force. Explanation. All decrees or orders of a civil court directing a refund of the tax already recovered by the committee of the said municipality or restraining the committee from recovering the tax shall be deemed to have no legal effect. " The appellant had, in the meanwhile, applied for the execution of the decrees, and the Validating Act was pleaded in bar. This plea was upheld by the executing Court, but the High Court at Nagpur, on appeal, rejected it and ordered the executions to proceed. The decision of the High Court is reported in Firm Radhakishan vs Municipal Committee, Khandwa (1). The reason given by the High Court was that the Explanation, though not the operative part of the Validating Act, conflicted with 0. 45 R. 15 of the Code of Civil Procedure, and that the assent of the Governor General had not been obtained, as required by is. 107(2) of the Government of India Act, 1935. Meantime, the Provincial Legislature had been dissolved, and the Governor had assumed all the powers of the Provincial Legislature under section 93 of the Government of India Act,. The Governor, with the assent of the Governor General enacted the second Validating Act intituled the Khandwa Municipality (Validation of Tax) Act, 1941,(16 of 1941), which received the assent of the Governor Genera I on June (1) (1940) N.L.J. 638. 636 30, 1941, and was published in the C. P. and Berar Gazette on July 11, 1941. That Act, omitting parts not relevant here, read as follows: "2. The tax the imposition of which purported to be sanctioned in the Notification of the Local Government (Ministry of Local Self Government) No. 2639 1298 VIII, dated the 21st November 1922, shall be, and shall be deemed always to have been, validly recoverable by the Municipal Committee of Khandwa in respect of the period from the 21st November 1922 to the 31st March 1938 (both dates inclusive). Where the net sum recovered from any person before the commencement of this Act on account of the said tax is less than the aggregate of the sum recoverable from such person, the balance shall be payable to the said Municipal Committee on demand made at any time after the commencement of this Act and, if not paid within fifteen days from the date of the demand, shall be recoverable by any method available under the Central Provinces Municipalities Act,, 1922, for the recovery of a tax imposed thereunder or by such other method as the Provincial Government may by rule prescribe. For the purposes of section 3 the net sum recovered from any person means the aggregate sum recovered from such person less any sum refunded to him and less so much of the amount of any decree or order for the payment of money executed by him against the said Municipal Committee as represents an amount previously paid by him on account of the said tax. Nothing in this Act shall preclude the execution against the said Municipal Committee of any decree or order for the payment of money arising out of a payment on account of the said tax but upon the execution of such decree or order so much of the amount thereof as represents a sum previously paid on account of the said tax shall be payable to and recoverable by the said Municipal Committee in accordance with section 3. 6. The Khandwa Ginning and Pressing Cotton Tax Validating Act, 1938, is hereby repealed. " 637 The Provincial Government framed a rule, which, shortly stated, provided for the recovery of the IV amount by way of execution application made to the very Court, which executed the decree. The Municipal Committee deposited the decretal amount in Court, which was withdrawn by the appellant on furnishing security. On August 7, 1947, the Municipal Committee filed its application under the rule for execution of the decree. Objections were raised by the appellant, but were disallowed, and the Municipal Committee realised the amount of the tax from the surety. The appellant had raised many objections, but we are concerned with one only, viz., that the Act was ultra vires the Provincial Legislature and consequently the Governor, being repugnant to a. 142 A, which was introduced in the Government of India Act, 1935, and which imposed a limit of Rs. 50 on taxes on professions, trades and callings after March 31, 1939. On November 16,1949, an appeal was taken by the present appellant to the High Court at Nagpur. This appeal was heard by Sinha, C. J., and Mudholkar, J. (as they then were). Mudholkar, J. held that by the second Validating Act which was passed after March 31, 1939, the limit of Rs. 50 per annum imposed by the second sub section of section 142 A was exceeded, 'and that the Act was thus ultra vires, the Governor. Sinha C., J., was of the contrary opinion. The case was then laid before Deo, J., who agreed with Sinha, C. J., and the appeal was dismissed. The appellant then obtained the certificate, and filed this appeal. Section 142 A of the Government of India Act, 1935, is as follows: "142 A. (1) Notwithstanding anything in section one hundred of this Act, no Provincial Law relating to taxes for the benefit of a Province or of a municipality, district board, local board or other local authority therein in respect of professions, trades," callings or employments shall be invalid on the ground that it relates to a tax on income. (2) The total amount payable in respect of any 638 one person to the Province or to any one municipality, district board, local board, or other local authority in the Province by way of taxes on professions, trades, callings, and employments shall not, after the thirty first day of March nineteen hundred and thirty nine, exceed fifty rupees per annum: Provided that if in the financial year ending with that date there was in force in the case of any Province or any such municipality, board or authority a tax on professions, trades, callings, or employments the rate, or the maximum rate, of which exceeded fifty rupees per annum, the preceding provisions of this sub section shall, unless for the time being provision to the contrary is made by a law of the Federal Legislature, have effect in relation to that Province, municipality, board or authority as if for the reference to fifty rupees per annum there were substituted a reference to the rate or maximum rate, or such lower rate, if any, (being a rate greater than fifty rupees per annum) as may for the time being be fixed by a law of the Federal Legislature; and any law of the Federal Legislature made for any of the purposes of this proviso may be made either generally or in relation to any specified Provinces, municipalities, boards or authorities. (3) The fact that the Provincial Legislature has power to make laws as aforesaid with respect to taxes on professions, trades, callings and employments, shall not be construed as limiting, in relation to professions, trades, callings and employments, the generality of the entry in the Federal Legislative List relating to taxes on income." Simultaneously with the introduction of section 142 A, Entry No. 46 in the Provincial Legislative List, which had till then stood as "Taxes on professions, trades, callings and employments" was amended by the addition of the words "subject, however, to the provisions of section 142 A of this Act". The impugned Act was passed by the Governor under section 90 of the Government of India Act, 1935. Under sub section (3) of that section, it had the same force and 639 effect and was subject to disallowance in the same manner as an Act of the Provincial Legislature assent led to by the Governor. The impugned Act was enacted with the concurrence and assent of the Governor General and thus complied with all the formalities required for such enactment. The powers of the Provincial Legislatures under the Legislative Lists have been the subject of numerous decisions by the Federal Court and also by this Court. It has been pointed out that these powers are as large and plenary as those of Parliament itself. These powers, it has been held, include within themselves the power to make retrospective laws; and as pointed out by Gwyer, C.J. in The United Provinces vs Atiqa Begum (1), the burden of proving that Indian Legislatures "were subject to a strange and unusual prohibition against retrospective legislation lay upon those who asserted it". This has not been asserted in this case, as, indeed, it could not be, after the decision of the case cited by us. In the case before the Allahabad High Court, out of which the appeal before the Federal Court had arisen [sub nom Mst. Atiqa Begum vs U. P. (2)], it was held that retrospective legislation was not possible in view of the provisions of section 292 of the Government of India Act, 1935, which continued all law in force in British India immediately before the commencement of Part III of the Act, until altered or repealed or amended by a competent Legislature or other competent authority. This view was not accepted by the Federal Court, which held that section 292 of the Act did not prevent Legislatures in India from giving retrospective effect to measures passed by them. There have been numerous occasions on which retrospective laws were passed, which were upheld by the Federal Court and also by this Court. It is not necessary to cite instances, but we refer only to the decision in M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh (3), where this Court approved the dictum of the Federal Court. Retrospective legislation being thus open to the (1) (2) A.I.R. (1940) All. 272. (3) ; 640 Provincial Legislatures, the Act of the Governor had the same force. Retrospective laws, it has been held, can validate an Act, which contains some defect in its enactment. Examples of Validating Acts which rendered inoperative, decrees or orders of the Court or alternatively made them valid and effective, are many. In Atiqa Begum 's case (1), the power of validating defective laws was held to be ancillary and subsidiary to the powers conferred by the Entries and to be included in those powers. Later, the Federal Court in Piare Dusadh,v. King Emperor (2) considered the matter fully, and held that the powers of the Governor General which were conterminous with those of the Central Legislature included the power of validation. The same can be said of the Provincial Legislatures and also of the Governor acting as a Legislature. The only question thus is whether the power to pass a retrospective and validating law was taken away by the enactment of section 142 A and the amendment of the Entry in the Government of India Act. It is on this point that the difference in the High Court arose. The amendment of the Entry is of no special significance, because it only subjects the otherwise plenary powers to the provisions of section 142 A. Apart from the implications arising from that section, the supremacy of the Legislature to pass retrospective and validating laws was unaffected. We have thus to see what section 142 A enacted and to what extent it trenched upon the powers of the Provincial Legislature and the Governor. Mr. N. C. Chatterjee, in arguing the case, adopted the line of reasoning of the minority view in the High Court. He pointed out that a. 142 A was enacted to achieve three purposes. The first was that it removed doubts whether the charge of tax on professions, etc., would be regarded as income tax. The second was that it put a limit upon the powers of the Provincial Legislature to enact a law imposing a tax in excess of rupees fifty after March 31, 1939;and thirdly it preserved only existing valid laws already in force, which imposed a tax in excess of the amount indicated. He (1) (2) 641 contended that the second sub section and the proviso covered the entire field, and a law passed after March 31, 1939, could not freshly impose a tax in excess of the limit and this was such a law. Under the scheme of the Government of India Act, 1935, income tax, though a Central levy, was, under section 138 (1), distributable among the Provinces and for which an elaborate scheme prepared by Sir Otto Niemyer was accepted and embodied in the Government of India (Distribution of Revenues) Order in Council, 1936. The Centre could levy a surcharge for federal purposes. Taxes on trades, professions and callings, which were taxes already leviable by the Provinces under Schedule 11 of the Rules made by the Governor General in Council under .s. 80A(3)(a) of the Government of India Act, were also included in the Provincial Legislative List as a source of revenue for the Provinces. It was, however, felt that these taxes might come into clash with tax on income in the Federal List, and also if unlimited in amount, might become a second tax on income to be levied by the Provinces. It was to remove these contingencies that section 142 A was enacted. Sub section (1) provided I ,hat, a tax on professions, etc., would not be invalid on the ground that it related to a tax on income. Sub section (3) was a counterpart of sub section (1), and provided that the, generality of the Entry in the Federal Legislative List relating to taxes on income would not be construed as in any way limited by the power of the Provincial Legislature to levy a tax on professions, etc. The fields of the two taxes were thus demarcated. No other implication arises from these two sub sections. It was also apprehended that under the (guise of taxes on professions, etc., the Provincial Legislatures might start their own scheme of a tax on income, thus subjecting incomes from professions etc., to an additional tax of the nature of income tax. A limit was therefore placed upon the amount which could be collected by way of tax on professions, etc., and that limit, was Rs. 50 per annum per person. The, second 642 sub section achieved this result. It was, however, realised that the tax being an old tax, there were laws under which the limit of Rs. 50 was already exceeded in relation to a Province, municipality, board or like authority, and the imposition of such a limit might displace their budgets after March 31, 1939. A proviso was, therefore, added to the second sub section that if in the financial year ending with the thirty first day of March, nineteen hundred and thirty nine there was in force in the case of any Province, etc., a tax on professions, trades, callings or employments the rate or the maximum rate of which exceeded Rs. 50 per annum, the provisions of the second sub section shall have effect, (unless for the time being provision to the contrary was made by a law of the Federal Legislature) as if instead of Rs. 50 per annum there was substituted a reference to the rate or maximum rate exceeding Rs. 50. Where no such law was passed by the Federal Legislature, the tax even in excess of Rs. 50 continued to be valid. There can be no doubt that if a law was passed after the amendment and sought to impose taxes on professions etc., for any period after March 31, 1939, it had to conform to the limit prescribed by section 142A (2). The prohibition in the second sub section operated to circumscribe the legislative power by putting a date line after which a tax in excess of Rs. 50 per annum per person for a period after the date line could not be collect id unless it came within the proviso. But neither sub section (2) nor the proviso speaks of a period prior to March 31, 1939. The sub section speaks only of "the total amount payable. after the thirty first day of March, nineteen hundred and thirty. nine". These words are important. They create a limit on the amount leviable as tax for a period after that date. But if a law was passed validating another which imposed a tax for a period prior to the date indicated, it would be taxing professions etc., in excess of Rs. 50 not after March 31, 1939, but before it. Neither the Entry nor the section either directly or indirectly prohibited this, nor did they create any limit for the prior period. The Validating Act, though 643 passed in 1941, can be read only as affecting a period for which there was no limit. If the sub section said that tax shall not be payable in excess of Rs. 50 without indicating the period or date, the argument would have some support, but it puts in a date, and the operation of the prohibition is confined to a period after that date. The Validating Act, being thus completely within the powers of the Governor, could remove retrospectively the defect in the ' earlier Act. Though it reimposed the tax from the date of the earlier Act, it took care to impose the tax for a period ending with March 31, 1938. The impugned Act did not need the support of the proviso, because it did not fall within the ban of the second sub section. In our opinion, the Validating Act of 1941 was within the powers of the Governor, and was a valid piece of legislation. The appeal fails, and is dismissed with costs. Appeal dismissed.

In 1922, the Municipal Committee, Khandwa imposed a tax on the trade of ginning and pressing cotton by means of steam or mechanical process. Certain suits were filed challenging the validity of the tax and ultimately in 1937, the Privy Council held that the tax had not been validly imposed. In 1941, the Governor enacted the Khandwa Municipality (Validation of Tax) Act, 1941, which sought to validate the tax imposed in 1922. In the meantime, section I42 A was introduced in the Government of India Act, 1935, sub section (2) Of which provided that the 'total amount payable in respect of any one person by way of taxes on professions, trades, callings and employments shall not, after March 31, 1939, exceed Rs. 50 per annum '. The appellant contended that the validating Act was hit by section 142 A(2) and to the extent that it imposed a tax above Rs. 50 per person per annum it was invalid. Held, that the Validating Act was not hit by section I42 A (2) Government of India Act, 1935. The powers of the Indian Legislatures included a power to pass retrospective and validating laws. Section 142 A(2) which put a limit on the amount of tax did not affect laws relating to a period prior to March 31, 1939, but affected only those relating to periods after that date. It circumscribed the legislative power by putting a date line after which a tax in excess of Rs. 50 for a period after the dateline could not be collected unless it came within the proviso. The Validating Act imposed the tax in excess of Rs. 5o not after March 31, 1939, but before it. The United Provinces vs Atiqa Begum, and Piare Dusadh vs King Emperor, [1944] F.C . R. 61, referred to.

To avoid the decision of this Court in A. B. Abdul Khadir vs The State of Kerala, , wherein rules framed for the issue of licences and payment of fee for storage of tobacco were 'held to be invalid, the appellant State promulgated Ordinance I of 1963 which was later replaced by Luxury Tax on Tobacco (Validation) Act 9 of 1964. Consequently the appellant State made a demand on the respondent to repay the amount which had been refunded to the respondent in accordance with the aforesaid judgment. Thereupon, the respondent filed a writ petition in the High Court. The High Court relying upon the decision of this Court in Kalvani Stores vs State of Orissa, [1966] 1 S.C.R. 865, held that in the absence of any production of tobacco inside the appellant State it was not competent for the State Legislature to impose a tax on tobacco imported from outside the State and therefore, the provisions of the Act (9 of 1964) violated the guarantee contained in articles 301 and 304 of the Constitution. HELD: The High Court had not correctly appreciated the import of the decision in Kalyani Stores ' case. The decision was based on the assumption that the notifications therein enhancing duty on foreign liquor infringed the guarantee under article 301 and may be saved if it fell within the exceptions contained in Art 304 of the Constitution. As no liquor was produced or manufactured within the State the protection of article 304 was not available. This Court did not intend to lay down the proposition that the imposition of a duty or tax in every case would be tantamount per se to an infringement of article 301. Only such restrictions or impediments which directly and immediately impede the free flow of trade, commerce and intercourse fall within the prohibition imposed by article 301. A tax may in certain cases directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and in its own setting of time and circumstance. In the present case the High Court had not gone into the question whether the provisions of the Act and the notifications constituted such restrictions or impediments as directly and immediately hamper the free 701 flow of trade, commerce and intercourse, and, therefore, fell within the prohibition. imposed under article 301 of the Constitution. Unless the High Court first comes to the finding whether or not there is the infringement of the guarantee under article 301 of the Constitution the further question as to whether the statute is saved under article 304(b) does not arise and the principle laid down in Kalyani Stores ' case cannot be invoked. This case, therefore must go back to the High Court. [709 E 710 E] Atiabari Tea Ca., Ltd. vs The State of Assam, ; , Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan, [1963] 1 S.C.R. 491, Andhra Sugars Ltd. vs State of Andhra Pradesh; , and State o/Madras vs K. Nataraja Mudaliar; , , referred to.

The appellant filed a suit against the respondent for a decree for Rs. 8339/ on the ground that the said amount had been illegally recovered from it under the Madras General Sales Tax Act, 1939, for the years 1952 54. The respondent 753 resisted the claim on the ground that the suit was incompetent under section I 8 A of the Act. On the merits, it was contended that the transactions in regard to groundnuts on which sales tax was levied and recovered from the appellant were transactions of purchase and not of sale, and it was urged that the appellant having voluntarily made the return and paid the taxes, it was not open to it to contend that the transactions were not taxable under the Act. Besides it was argued that the appellant had not preferred an appeal either to the Deputy Commissioner of Commercial Taxes or to the Sales Tax Appellate Tribunal against the assessments and bence the suit was not maintainable. The suit was decreed by the trial court but the High Court reversed that decision and dismissed the suit on the ground that in view of the provisions of section 18 A of the Act, the suit was incompetent. Alternatively. it was found on merits that the claim made by the appellant was not justified. The appellant came to this Court by special leave. Held, that section 18 A excludes the jurisdiction of Civil Courts to set aside or modify any assessment made under the Act. There is no express provision in the Act under which the suit can be said to have been filed and it falls under the prohibition contained in this section. The prohibition is express and unambiguous and no suit can be entertained by a Civil Court, if by instituting the suit. the plaintiff wants to set aside or modify any assessment made under the Act. Where an order of assessment has been made by an appropriate authority under the provisions of the Act, any challenge to its correctness and any attempt either to have it set aside or modified must be made before the appellate or revisional forum prescribed by the relevant provisions of the Act. A suit instituted for that purpose is barred under section 18 A. When the appellant made its voluntary returns and paid the tax in advance to be adjusted at the end of the year from time to time, it treated the groundnut transactions as taxable. The appellant having conceded the taxable character of the transactions in question, no occasion arose for the taxing authorities to consider whether the said transactions could be taxed or not. Even after the impugned orders of assessment were made, the appellant did not choose to file an appeal and urge before the appellate authority that. the transactions were sale transactions and as such were outside the purview of section 5A (2). If an order made by a taxing authority under the relevant provisions of the Act in a case where the taxable character of a transaction is disputed, is final and cannot be challenged in a civil court by a separate suit, the position is just 754 the same where the taxable character of the transactions is not even disputed by the dealer who accepts the order for the purposes of the Act and then institutes a suit to set aside or modify it. The expression "any assessment made under this Act" is wide enough to cover all assessments made by the appropriate authorities under this Act whether the said assessments arc correct or not. It is the activity of the assessing officer acting as such officer which is intended to be projected and as soon as it is shown that exercising his jurisdiction and authority under this Act, an assessing officer has made an order of assessment, that clearly falls within the scope of section 18 A. The fact that the order passed by the assessing authority may in fact be incorrect or wrong does not affect the position that in law the said order has been passed by an appropriate authority and the assessment made by it must be treated as made under this Act. Whether or not an assessment has been made under this Act will not depend on the correctness or accuracy of the order passed by the assessing authority. There is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and such a remedy could be held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of jurisdiction of civil courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to the effect or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute. There is no justification for the assumption that if a decision has been made by a taxing authority under the provisions of a taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on merits and as such it can be claimed that the provisions of the said statute have not been complied with. Non compliance with the provisions of the statute must be non compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. If an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and that infirmily may affect the validity of the order passed by the authority in question. It is cases of this character where the 755 defect or infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute. Secretary of State vs Mask & Co., (1940) 67 I.A. 222 and Reliegh Investment Co. Ltd. vs Governor General in 'Council, (1947) 74 I.A. 50, relied on. State of Andhra Pradesh vs Sri Krishna Coconut Co. (1960) 1 Andhra W.R. 279, overruled.

% The Deputy Assessor and Collector of the Assessment and Collection Department of the Municipal Corporation of Delhi, issued an order to the petitioners, demanding payment of Rs.14,07,328 as composite arrears of the property tax, fire tax, water tax, scavenging tax and education tax. The petitioners moved this Court under Article 32 of the Constitution for the issuance of a writ of certiorari, quashing the demand order. Disposing of the Writ Petition, without expressing any opinion on the merits of the case, and allowing liberty to the petitioners to file, if so advised, a writ petition before the High Court under Article 226 of the F. Constitution, the Court, ^ HELD: The scope of the powers of the High Courts under Article 226 of the Constitution is wider than the scope of the powers of this Court under Article 32 of the Constitution. The relief prayed for in the petition is one which may be granted by the High Court. Any party aggrieved by the decision of the High Court can appeal to this Court. That some case involving the same point of law is pending in this Court, is no ground for this Court to entertain a petition, by passing the High Court. If the parties get relief in the High Court, they need not come to this Court, and, to that extent, the burden on this Court is reduced. This Court has no time today even to dispose of cases which have to be decided by it alone. A large number of cases have been pending in this Court for ten to fifteen years. If no fresh cases are filed in this Court thereafter, this Court, with its present strength of Judges, may take more than 15 years to dispose of all the pending cases. If the cases, which can be filed in the High Courts, are filed there and not in this Court, the work of this Court in its original Jurisdiction, which is a time consuming process, can be avoided, and the time saved by this 733 Court by not entertaining the case which may be filed in the High Courts, can be utilized to dispose of the old matters, [734E H; 735A E] This Court will also have the benefit of the decisions of the High Courts when it deals with an appeal against such a decision. The High Courts have judges of eminence, who have initiative, skill and enthusiasm. Their capacity should be harnessed to deal with every type of cases, arising from their respective areas, which they are competent to dispose of. If the cases, which may be filed in the High Courts are filed in this Court, this will affect the initiative of the High Courts. The dignity, majesty and efficiency of the High Courts should be preserved. The taking over by this Court of the work which the High Courts can handle, may undermine the capacity and efficiency of the High Courts, which should be avoided. [735E F] The hearing of a case at the level of a High Court is also more convenient from several angles and will be cheaper to the parties. That saves a lot of time too. It is easier for the clients to give instructions to the lawyers. There are eminent lawyers practising in the High Courts, with wide experience in handling different kinds of cases. The lawyers there are fully aware of every legislation in their States. [734G]

The respondent Board realised terminal tax on goods experted by the appellants. In suits filed by the appellants for refund of the amounts which they claimed were collected without authority of law, the respondent Board pleaded that the levy was in accordance with law and that the suits where barred by limitation. The trial court decreed the suits and on appeal the District Judge affirmed the trial Court 's decrees. In second appeal the High Court held that the levy was illegal. The High Court, however, allowed the appeals in respect of those amounts which were found to be within limitation under section 179(2) of the Act and dismissed the others. On the question whether the levy could be said to be a thing done or purported to be done under the Act. Allowing the appeal, ^ HELD: The suits did not fall within the purview of section 179 of the Act and were not barred by limitation. [172 D] 1. (a) It is well established that if levy of a tax is prohibited by an Act and is not in pursuance of it, it could not be said to be purported to be done in pursuance of the execution or intended execution of the Act. [172 B] Poona City Municipal Corporation vs Dattatraya Nagesh Deodhar, ; followed. (b) The terminal tax could not be imposed under any of The provisions of the Act. The High Court was right in holding that the amounts ` paid by the appellants by way of terminal tax were recoverable by the suits. [173 F G 174 Al 2. The Bikaner State Municipal Act, 1923 (which was the predecessor of the present Act) authorised the levy of terminal tax and the Board accordingly levied the tax until January 26, 1950. With the coming into force 12 SCI/78 170 of the Constitution, by virtue of article 277 it was permissible for the Board to continue to levy the terminal tax until provision to the contrary was made by Parliament by law. But with effect from December 22, 1951 the Bikaner Act was repealed and the present Act was brought into force. the repeal, however, did not affect the validity of those taxes which had already been imposed and which could be "deemed` ' to have been imposed under the Act. But the provisions of the Act the clear that the terminal tax in question could not be imposed thereunder. The levy could not, therefore, be saved by cl. (b) of the proviso to section 2. on the other hand it is clear that the State Legislature had decided to discontinue the levy by excluding it from the purview of the saving clauses. The further levy of the tax, therefore, became illegal and it was not permissible to continue it any longer under article 277 which merely gave the authority concerned the option to continue to levy if it so desired. [173A, F G]

Under section 22A(2) of the Saurashtra Ordinance No. 2 of 1948, an appeal lay to a Division Bench of the Saurashtra High Court Tom a judgment of a single Judge of that High Court in the exercise of its appellate jurisdiction, if the Judge certified that the, case was a fit one for appeal. The , merged the Part 'B ' State of Saurashtra into the State of Bombay, abolished the High Court of Saurashtra as from November 1, 1956, and transferred the proceedings pending before the High Court of Saurashtra to the High Court of Bombay. Section 52 of the Act conferred upon the High Court of Bombay, after November 1, 1956, the original, appellate and other jurisdiction which was exercised by the High Court of Saurashtra immediately prior to that date in respect of the territories in the State of Saurashtra. The Saurashtra Ordinance No. 2 of 1948 was repealed with effect from November 1. 1956. by the Saurashtra (Adaptation of Laws on Union Subjects Order, 1957. and the Rules and orders relating to practice and procedure framed by the High Court of Saurashtra were abrogated as from November 1, 1956 by rules of the High Court of Bombay made under section 54 of the State Reorganisation Act. The effect of section 57 of the is that the powers of a Division Bench of the High Court for the new State of Bombay shall be the same as the powers of the Division Bench under the law in force immediately before November 1, 1956, in the State of Bombay. Clause 15 of the Letters Patent of the High Court of Bombay, which was law in force immediately before November 1. 1956, in the State of Bombay, provides that an appeal from the judgment of a single Judge of the Bombay High Court, in a first appeal from a judgment of the Subordinate Court, could be filed without a certificate of the Judge hearing the first appeal. Clause 15 of the Letters Patent of the Bombay High Court applied also to the Gujarat High Court which was established as a result of the Bombay Reoganisation Act. A first appeal against a decree of a subordinate court in Saurashtra, pending in the Saurashtra High Court on November 1, 1956, was transferred to the High Court of Bombay, and disposed of by a single Judge of the Bombay High Court. 'An appeal to the Division Bench under CI. 15 of the Letters Patent of the High Court of Bombay, was transferred to the Gujarat High Court after its establishment, but the Gujarat High Court held that the appeal was incompetent under section 22A of the Saurashtra Ordinance No. 2. of 1948 without a certificate from the single Judge. 435 In appeal to this Court, HELD: (1) It was only in the absence of any provision to the contrary, that a right attached to the action when it was commenced in the subordinate court in Saurashtra that an appeal against the decision of the single Judge of the High Court of Saurashtra in appeal, shall lie only if the single. judge certified that it was a fit case for appeal to a Division Bench. Garikapatti Veerayya vs N. Subbiah Choudhury; , , referred to. [443 A B]. (2) But, from November 1, 1956, the Saurashtra High Court was abolished, the Saurashtra Ordinance No. 2 of 1948 was repealed, and the jurisdiction of the High Court of Saurashtra was conferred upon the Bombay High Court. Therefore, the single Judge of the High Court who heard the first appeal, heard it not as a Judge of the Saurashtra High Court, but as a Judge of the Bombay Court. [443 B C] (3) Section52 of the does not mean that the jurisdiction conferred upon the Bombay High Court in respect of the territories within the State of Saurashtra was to be regulated with reference to the law which was in force on November 1, 1956 in Saurashtra. Therefore, it does not incorporate either expressly or by implication the limitations prescribed by section 22A(2) of the Saurashtra Ordinance into the Letters Patent of the High Court. [443 G H; 444 C D] (4) Since the restriction placed by section 22A of the Ordinance applied only to a judgment of a single Judge of the High Court of Saurashtra and could not apply to a judgment of a single Judge of the Bombay High Court, and could not operate to restrict a right of appeal exercisable under CI. 15 ' of the Letters Patent, the judgment of the single Judge of the Bombay High Court was, under section 57 of the , subject to appeal to a Division Bench without a certificate of the single Judge. [443 D F]

Respondent No. 1 acquired tenancy rights in five plots in the villages of Biknaur and Samahuta situated in the area known as Lower Murli Hill in District Shahabad, Bihar. In 1949 he filed a plaint in the Court of the Subordinate Judge Sasaram, against the State of Bihar and others, claiming inter alia that as a tenant he had a customary right to quarry limestone for trade purposes from the Lower Murli Hill. The claim was based mainly on certain entries in the Custom sheets prepared at the time of the Cadastral Survey in 1913 under section 102 of the Bihar Tenancy Act, 1885. The trial court rejected the claim but the High Court held the custom to be established by the evidence of the Customs sheets. The defendants appealed. Held The High Court was in error in holding that the plain tiff had established the custom pleaded by him or that it was reasonable. (i) There was nothing to show that the practices and privileges recorded in the Custom Sheets were exercised as a matter of right. The record has presumptive value. But the revenue authorities were concerned to ascertain the existing state of affairs and not to determine whether the practices and privileges were ancient, certain, reasonable and continuous. As evidence of local custom, the custom sheets had therefore not much value. On the other hand there were indications that the exercise of the privileges recorded therein was permissive. Even on the most liberal interpretation they did not provide evidence of the exercise of the privilege of commercial exploitation of limestone from the area in question. [317D; 319G] (ii) Even granting that the Custom sheets recorded a local custom that the tenants in the villages of Baknaur and Samahuta excavated stones from the hills near the villages for purposes of trade, a claim of right founded on that custom must be held unreasonable and incapable of enforcement by the sanction of a court 's verdict, [320B] A claim in the nature of a profit a prendre operating in favour of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid custom. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality. To the extent to which it is inconsistent with the general law undoubtedly the custom prevails. But to be valid a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. A right in the nature of a profit a prendre in the exercise of which the residents of a locality are entitled to excavate stone for trade purposes would ex facie 313 314 be unreasonable, because the exercise of such a right ordinarily tends to the complete destruction of the subject matter of the profit. The custom, if exercised in its amplitude as claimed, may also lead to breaches of the peace, for it would be open to all tenants to work any quarry simultaneously for trade purposes. [321B D; 324D] Lord Rivers vs Adams, L.R.3 exhibit Div. 361, Harris & Anr. vs Earl of Chesterfield and Anr. , , Alfred F. Beckett Ltd. vs Lyons , referred to Lutchhmeeput Singh vs Sadaulla Nushyo & Ors., I.L.R. 9 Cal. 698 and Arjun Kaibarta vs Manoranjan De Bhoumick, I.L.R. , approved. Henry Goodman vs The Mayor and Free Burgesses of the Borough of Saltash. 7 A.C. 633 and Mercer vs Denne, , 557 distinguished.

The respondent State Government was exercising powers delegated to it by the Central Government under the . It introduced an 'Incentive Export Scheme ' under which, millers, who delivered 50% of their purchases to the Food Corporation of India towards mill levy, would be eligible for exporting rice either within the State from one block to another or to States outside. On payment of administrative charges. On the representation of the millers (appellants) that they could not sell rice locally because there was no demand, and that unless they were allowed to move rice outside the blocks or outside the State there would be deterioration of stocks resulting in loss to both trade and the consuming public, the State passed orders permittion the export of rice subject to the fulfilment of their commitments to the Food Corporation and the payment of administrative charges; and also set up the necessary administrative machinery for ensuring such export. Permits were accordingly granted on terms and on condition of payment of the surcharge fixed. and the millers paid the surcharge and received the benefits under the permits. Thereafter, they claimed refund of the administrative surcharge on the ground that the State had no right to collect it and that they made the payments under mistake of law. Where the State collected administrative charges but could not grant permits, the State refunded the money, but, where millers obtained permits and had taken advantage thereof, the State contended that there was no mistake on the part of the millers and that the payments were made voluntarily with full knowledge of facts and in discharge of their contractual obligations. The millers filed writ petitions praying for directions to the State to refund the administrative surcharges collected from them, but the High Court held that they were not entitled to the relief on the grounds of delay, insufficiency of particulars regarding expenses and charges incurred by the Government, and the payments being voluntary. Dismissing the appeals to this Court, ^ HELD: The petitions were rightly dismissed by the High Court. Also, since various question of fact are involved as to whether there was really a mistake, or whether it was a case of voluntary payment pursuant to contractual rights and obligations. the remedy under article 226 is not appropriate in the present cases. [396C D] (a) A mandamus will go where there is a specific legal right. If there is no other means of obtaining justice, the writ of mandamus is granted to enable justice to be done. A writ of mandamus for recovery of money could be issued only when the petitioner was entitled to recover that money under some statute. An order for payment of money may sometimes be made to enforce a statutory obligation. A mandamus for refund of tax could be issued when the assessments were held to be illegal; but contractual obligations cannot be enforced through a writ of mandamus. Normally, the parties are relegated to a suit of enforce civil liability arising out of a breach of contract or a tort, to pay an amount of money. Mandamus may also be refused where there is an alternative remedy which is equally convenient, beneficial and effectual [395F 396C] 388 R. V. Bristol and Exeter Railway Co. 1845(3) Ry. & Can. Cas. 777; Lekh Raj v Deputy Custodian, ; Har Shankar & ors. vs Deputy Excise and Taxation Commissioner & Ors., ; ; Sales Tax officer Banaras & ors. vs Kanhaiya Lal Mukundalal Saraf, ; Suganmal vs State of Madhya Pradesh & ors., A.I.R. 1965 S.C. 1740; Burmah Construction Co. vs State of Orissa, [1962] Supp. 1 S.C.R 242 and State of Kerala vs Aluminium Industries Ltd., 16 S.T.C. 689, referred to. (b) The ground of delay on which the High Court, in the exercise of its discretion, refused to grant a mandamus is not confined purely to the period of limitation. Though some of the petitions were filed within 3 years from the date of payment, the delay is bound up with matters relating to the conduct of parties in regard to payments pursuant to agreements between the parties. [395B C] (c) In the present cases, several petitioners have joined in the writ petitions. Since each has an individual and independent cause of action, such a combination would be open to the objection of misjoinder even in a suit. [395C D] (d) The issues regarding limitation, estoppel and questions of fact in ascertaining the expenses incurred by the Government for administrative purposes of the scheme and allocating the expenses with regard to the quality as well as quantity of rice covered by the permits, are triable more appropriately in a suit. [395D] (e) The plea of mistake is a bare averment in the writ petition. The payments did not disclose the circumstances under which the alleged mistake occurred nor the circumstances in which the legal position became known to the millers. Whether there was a mistake in paying the amounts and when exactly the mistake occurred, are also issues triable in a suit. [1396D E] (f) The Government did not support its demand for administrative charges either as a tax or a fee, but as a condition of the permit and as a term of agreement between the parties to meet the maintenance and supervision ex penses for the Scheme of export permits. Under section 72, Contract Act, 1872 if one party, under a mistake of law, pays to another money which is not due by contract or otherwise, that money has to be repaid. The mistake is material only so far as it leads to the payment being made without consideration. But if a mistake of law had led to the formation of a contract. section 21 of the Contract Act enacts that such a contract is not, for that reason, voidable; and if money is paid under that contract, it cannot be said that the money was paid under mistake of law. It was paid because it was due under a valid contract, and if it had not been paid, payment could have been enforced. [396E 397A] The State of Kerala etc. vs K. P. Govindan Tapioca Exporter etc. ; ; State of Madhya Pradesh vs Bhailal Bhai ; and Shiba Prasad Singh vs Srish Chandra Nandi, 76 I.A. 244, referred to. (g) Where the High Court has, in the exercise of its discretion refused to grant a writ of madamus, this Court does not ordinarily interfere [394E] Municipal Corporation of Greater Bomboy vs Advance Builders (India) Private Limited. [1972] I S.C.R. 408 at p. 420 and D. Cawasji d Co. vs State of Mysore [1975] 2 S.C.R. 511 at p. 527, referred to.

Appeals Nos. 25 and 26 of 1958. Appeals from the judgments and orders dated August 7, 1956, of the Allahabad High Court in Special Appeals Nos. 151 and 152 of 1955. C. B. Agarwala, A. N. Goyal and Mohan Lal Agarwala, for the appellant. Gopi Nath Dikshit and C. P. Lal, for the respondents. March 30. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. These two appeals arise out Gajen, of two writ petitions filed by the appellant Raja Harish Chandra Raj Singh against the respondents the Deputy Land Acquisition Officer and another in the Allahabad High Court and they were based on the same facts and asked for the same relief. Both of them raise a short common question of limitation the decision of which would depend upon the determination of the scope and effect of the provisions of the proviso to section 18 of the Land Acquisition Act I of 1894 (hereafter called the Act). Since the facts in both the appeals are substantially the same we would refer to the facts in Civil Appeal No. 25 of 1958. The decision in this appeal would govern the decision of the other appeal, Civil Appeal No. 26 of 1958. The appellant Raja Harish Chandra Raj Singh was the proprietor of a village Beljuri in the District of Nainital. It appears that proceedings for compulsory acquisition of land including the said village for a public purpose were commenced by respondent 2, the State of Uttar Pradesh; notifications under sections 4 and 6 of the Act were issued in that behalf, and the 678 provisions of section 17 were also made applicable. Accordingly, after the notice under section 9(1) of the Act was published possession of land was taken by the Collector on March 19, 1960. Thereupon the appellant filed his claim to compensation for the land acquired in accordance with section 9(2), and proceedings were held by the Deputy Land Acquisition Officer, respondent 1, for determining the amount of compensation. It appears that in these proceedings an award was made, signed and filed in his office by respondent I on March 25, 1951. No notice of this award was, however, given to the appellant as required by section 12(2) and it was only on or about January 13, 1953 that he received information about the making of the said award. The appellant then filed an application on February 24, 1953 under a. 18 requiring that the matter be referred for the determination of the Court, as, according to the appellant, the compensation amount determined by respondent I was quite inadequate. Respondent I took the view that the application thus made by the appellant was beyond time under the proviso to section 18 and so he rejected it. The appellant then filed a writ petition in the Allahabad High Court on December 21,1953 in which he claimed appropriate reliefs in respect of the order passed by respondent I on his application made under a. 18. This petition was heard by Mehrotra, J. and was allowed. The learned Judge directed respondent 1 to consider the application made by the appellant on the merits and deal with it in accordance with law. He held that in dealing with the said application respondent 1 should treat the application as filed in time. Against this decision the respondents preferred an appeal to a Division Bench of the said High Court. Mootham, C. J. and Chaturvedi, J., who heard this appeal took the view that the application filed by the appellant under section 18 of the Act was barred by time, and so they allowed the appeal, set aside the order passed by Mehrotra, J. and dismissed the writ petition filed by the appellant. The appellant then moved for and obtained a certificate from the said High Court and it is with this certificate that he has come to this 670 Court in the present appeal; and so the short question which the appellant raises for our decision is whether the application filed by him under section 18 of the Act( was in time or not. Before proceeding to construe the material provisions of section 18 it is necessary to refer very briefly to, some other sections of the Act which are relevant in( order to appreciate the background of the scheme in relation to land acquisition proceedings. Section 4 deals with the publication of the preliminary notification and prescribes the powers of the appropriate officers. Whenever it appears to the appropriate Government that land in any locality is needed for any public purpose a notification to that effect shall be published in the official gazette and a public notice of its substance shall be given at convenient places in the said locality; that is the effect of section 4(1). Sec tion 4(2) deals with the powers of the appropriate authorities. Section 5 A provides for the hearing of objections filed by persons interested in any land which has been notified under section 4(1). After the objections are thus considered a declaration that land is required for a public purpose follows under section 6(1). Section 6(2) provides for the publication of the said declaration; and section 6(3) makes the declaration conclusive evidence that the land is needed for a public purpose. Section 9 requires the Collector to give public notice in the manner specified stating that the Government intend to take possession of the land and calling for claim,% to compensation in respect of all interests in such land. Section 9(2) prescribes the particulars of such notice, and section 9(3) an 4) provide for the manner of serving such notice. Section II deals with the enquiry and provides for the making of the award by the Collector. Section 12(l) then lays down that the award when made by the Collector shall be filed in his office, and shall, except as otherwise provided, be final and conclusive evidence as between the Collector and the persons interested whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation 680 among the persons interested. Section 12(2) is important. It makes it obligatory on the Collector to give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made. It is common ground that no such notice was given by respondent 1 to the appellant. That briefly is the scheme of the relevant provisions of Part II of the, Act which deals with acquisition. Part III which deals with reference to Court and procedure thereon opens with section 18. Section 18(1) provides that any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by him for determination of the Court, inter alia, whether the amount of compensation is adequate or not. It is under this provision that the appellant made an application from which the present appeal arises. Section 18(2) requires that the application shall state the grounds on which objection to the award is taken. These grounds have been stated by the appellant in his application. The proviso to section 18 deals with the question of limitation. It prescribes that every such application shall be made (a) if the person making it was present or represented before the Collector at the time when he made his award within six weeks from the date of the Collector 's award; (b) in other cases within six weeks of the receipt of the notice from the Collector under section 12(2), or within six months from the date of the Collector 's award whichever shall first expire. The appellant 's case falls under the latter part of el. (b) of the proviso. It has been held by the Allahabad High Court that since the application made by the appellant before respondent I was made beyond six months from the date of the award in question it was beyond time. The view taken by the High Court proceeds on the literal construction of the relevant clause. As we have already seen the award was signed and delivered in his office by respondent 1 on March 25, 1951 and the application by the appellant was made under section 18 on February 24, 1953. It has been held that the effect of the relevant 681 clause is that the application made by the appellant is plainly beyond the six months permitted by the said clause and so respondent I was right in rejecting it as barred by time. The question which arises for our decision is whether this literal and mechanical way of construing the relevant clause is justified in A law. It is obvious that the effect of this construction is that if a person does not know about the making of the award and is himself not to blame for not knowing about the award his right to make an application under section 18 may in many cases be rendered ineffective. If the effect of the relevant provision unambiguously is as held by the High Court the unfortunate consequence which may flow from it may not have a material or a decisive bearing. If, on the other hand, it is possible reasonably to construe the said provision so as to avoid such a consequence it would be legitimate for the Court to do so. We must therefore enquire whether the relevant provision is capable of the construction for which the appellant contends, and that naturally raises the question as to what is the meaning of the expression "the day of the Collector 's award". In dealing with this question it is relevant to bear in mind the legal character of the award made by the Collector under section 12. In a sense it is a decision of the Collector reached by him after holding an enquiry as prescribed by the Act. It is a decision, inter alia, in respect of the amount of compensation which should be paid to the person interested in the property acquired; but legally the award cannot be treated as a decision; it is in law an offer or tender of the compensation determined by the Collector to the owner of the property under acquisition. If the owner accepts the offer no further proceeding is required to be taken; the amount is paid and compensation proceedings are concluded. If, however, the owner does not accept the offer section 18 gives him the statutory,, right of having the question determined by Court, and ' it is the amount of compensation which the Court may determine that would bind both the owner and 86 682 the Collector. In that case it is on the amount thus determined judicially that the acquisition proceedings would be concluded. It is because of this nature of the award that the award can be appropriately described as a tender or offer made by the Collector on behalf of the Government to the owner of the property for his acceptance. In Ezra vs The Secretary of State (1). It has been held that "the meaning to be attached to the word "award" under section 11 and its nature and effect must be arrived at not from the mere use of the same expression in both instances but from the examination of the provisions of the law relating to the Collector 's proceedings culminating in the award. The considerations to which we have referred satisfy us that the Collector acts in the matter of the enquiry and the valuation of the land only as an agent of the Government and not as a judicial officer; and that consequently, although the Government is bound by his proceedings, the persons interested are not concluded by his finding regarding the value of the land or the compensation to be awarded. " Then the High Court has added that such tender once made is binding on the Government and the Government cannot require that the value fixed by its own officer acting on its behalf should be open to question at its own instance before the Civil Court. The said case was taken before the Privy Council in Ezra vs Secretary of State for India (2 ), and their Lordships have expressly approved of the observations made by the High Court to which we have just referred. Therefore; if the award made by the Collector is in law no more than an offer made on behalf of the Government to, the owner of the property then the making of the award as properly understood must involve the communication of the offer to the party concerned. That is the normal requirement under the contract law and its applicability to cases of award made under the Act cannot be reasonably excluded. Thus considered the date of the award cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office; it must (1) Cal. 36, 86. (2) Cal. 683 involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position then the literal and mechanical construction of the words "the date of the award" occurring in the relevant section would not be appropriate. There is yet another point which leads to the same conclusion. If the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the ' rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, 'is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it can be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly if without notice of the date of its pronouncement an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later. The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression "the date of the award" used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to 684 construe the words "from the date of the Collector 's award" used in the proviso to section 18 in a literal or mechanical way. In this connection it is material to recall the fact that under section 12(2) it is obligatory on the Collector to give immediate notice of the award to the persons interested a,, are not present personally or by their representatives when the award is made. This requirement itself postulates the necessity of the communication of the award to the party concerned. The Legislature recognised that the making of the award under section 11 followed by its filing under section 12(1) would not meet the requirements of justice before bringing the award into force. It thought that the communication of the award to the party concerned was also necessary, and so by the use of the mandatory words an obligation is placed on the Collector to communicate the award immediately to the person concerned. It is significant that the section requires the Collector to give notice of the award immediately after making it. This provision lends support to the view which we have taken about the construction of the expression "from the date of the Collector 's award" in the proviso to section 18. It is because communication of the order is regarded by the Legislature as necessary that section 12(2) has imposed an obligation on the Collector and if the relevant clause in the proviso is read in the light of this statutory requirement it tends to show that the literal and mechanical construction of the said clause would be wholly inappropriate. It would indeed be a very curious result that the failure of the Collector to discharge his obligation under section 12(2) should directly tend to make ineffective the right of the party to make an application under section 18, and this result could not possibly have been intended by the legislature. It may now be convenient to refer to some judicial decisions bearing on this point. In Magdonald vs The Secretary of State, for India in Council (1) Rattigan and Shah Din, JJ. held that under the proviso to section 18 until an award is announced or communicated to the parties concerned it cannot be said to be legally made. (1) (1005) 4 Ind. C. 914. 685 An award under the Act, it was observed in the judgment, is in the nature of a tender and obviously no tender can be made unless it is brought to the( , knowledge of the person to whom it is made. The learned Judges observed that this proposition seemed to them to be self evident. The same view has been expressed by the Oudh Judicial Commissioner in Hari Das Pal vs The Municipal Board, Lucknow (1). On the other hand, in Jehangir Bomanji vs G. D. Gaikwad (2) the Bombay High Court has taken the view that the element of notice is only an essential ingredient of the first part of cl. (b) of the proviso to s.18 which prescribes the period of limitation as six weeks from the date of the receipt of the notice from the Collector, not of the second part which prescribes the maximum period of six months from the date of the Collector 's award in absolute terms. According to that decision, as far as the limitation under the latter part is concerned it runs from the date of the award and the date of the award has nothing whatever to (lo with the notice which the Collector has to give under section 12(2). In our opinion this decision is based on a misconstruction of the relevant clause in the proviso to section 18. The same comment falls to be made in regard to the decision of the Kerala High Court in State of Travancore Cochin vs Narayani Amma Ponnamma (3). It may, however, be pertinent to point out that the Bombay High Court has taken a somewhat different view in dealing with the effect of the provision as to limitation prescribed by section 33A(2) of the Indian Income tax Act. This provision prescribes limitation for an application by an assessee for the revision of the specified class of orders, and it says that such an application should be made within one year from the date of the order. It is significant that while provid ing for a similar period of limitation section 33(1) specifically lays down that the limitation of sixty days therein prescribed is to be calculated from the date on which the order in question is communicated to the (1) (1914) 22 Ind. C. 652. (2) A.I.R. 1954 Bom. 419, (3) A.I.R. (1958) Kerala 272. 686 assessee. In other words, in prescribing limitation section 33(1) expressly provides for the commencement of the period from the date of the communication of the order, whereas section 33A(2) does not refer to any such communication; and naturally the argument was that communication was irrelevant under section 33A(2) and limitation would commence as from 'the making of the order without reference to its communication. This argument was rejected by the Bombay High Court and it was hold that it would be a reasonable interpretation to hold that the making of the order implies notice of the said order, either actual or constructive, to the party affected by it. It would not be easy to reconcile this decision and particularly the reasons given in its support with the decision of the same High Court in the case of Jehangir Bomanji (1). The relevant clause under section 33A(2) of the Indian Income tax Act has also been similarly construed by the Madras High Court in O.A.O.A.M. Muthia Chettiar vs The Commissioner of Income tax, Madras (2). "If a person is given a right to resort to a remedy to get rid of an adverse order within a prescribed time", observed Rajamannar, C.J., "limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order, and therefore must be presumed to have the knowledge of the order". In other words the Madras High Court has taken the view that the omission to use the words "from the date of communication" in section 33A(2) does not mean that limitation can start to run against a party even before the party either knew or should have known about the said order. In our opinion this conclusion is obviously right. A similar question arose before the Madras High Court in Annamalai Chetti vs Col. J. G. Cloete(3). Section 25 of the Madras Boundary Act XXVIII of 1860 limited the time within which a suit may be brought to set side the decision of the settlement officer to two months from the date of the award, and (1) A.I.R 1954 Bom. (2) I.L.R. (3) Mad. 687 so the question arose as to when the time would begin to run. The High Court held that the time can begin to run only from the date on which the decision is communicated to the parties. "If there was any decision at all in the sense of the Act", says the judgment, "it could not date earlier than the date of the communication of it to the parties; otherwise they might, be barred of their right, of appeal without any knowledge of the decision having been passed". Adopting the same principle a, similar construction has been placed by the Madras High Court in K. V. E. Swaminathan alias Chidambaram Pillai vs Letchmanan Chettiar (1). On the limitation provisions contained in sections 73(1) and 77(l) of the Indian Registration Act XVI of 1908. It was held that in a case where an order was not passed in the presence of the parties or after notice to them of the date when the order would be passed the expression "within thirty days after the making of the order" used in the said sections means within thirty days after the date on which the communication of the order reached the parties affected by it. These decisions show that where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. Therefore, we are satisfied that the High Court of Allahabad was in error in coming to the conclusion that the application made by the appellant in the present proceedings was barred under the proviso to section 18 of the Act. In the result we allow the appeal, set aside the orders passed by Mootham, C. J. and Chaturvedi, J., and restore those of Mehrotra, J. In the circumstances of this case there would be no order as to costs. Appeal allowed. (1) Mad 491.

Certain lands belonging to the appellant were compulsorily acquired. The Collector made an award with respect to the amount of compensation, signed and filed it in his office as required by section 12(1) Land Acquisition Act on March 19, 1950. But no notice of the award, as required by section 12(2), was given to the appellant. The appellant came to know of the award on or about January 13, 1953, and on February 24, 1953, he filed an application under section 18 requiring that the matter be referred for the determination of the Court. The proviso to section 18 prescribes that in cases where a person was not present or represented at the time of the making of the award the application under section 18 shall be made within six weeks of the receipt of the notice from the Collector under section 12(2), or "within six months from the date of the award", whichever shall expire first. The appellant 's application was dismissed as time barred on the ground that it was made beyond six months of the date of the award. Held, that the application made by the appellant under section 18 of the Act was not beyond time. The award of the Collector was not a decision but an offer of compensation on behalf of the Government to the owner of the property and it was not effective until it was communicated to the owner. The making of the award did not consist merely in the physical act of writing the award or signing it or filing it in the office of the Collector; it also involved the communication of the award to the owner either actually or constructively. Consequently, the expression "the date of the award" in the proviso to section 18 meant the date when the award was communicated to the owner or is known by him either actually or constructively. The application in the present case was made within six months of the date when the appellants came to know of the award and was within the period prescribed. Ezra vs The Secretary of State, Cal. 36 and Ezra vs Secretary of State for India, Cal, 605, applied. Magdonald vs The Secretary of State for India in Council, (1905) 4 Ind. C. 914 and Hari Das Pal vs The Municipal Board, Lucknow, (1914) 22 Ind. C. 652, approved. 677 Jahangir Bemanji vs G. D. Gaikwad, A.I.R. 1954 Bom. 419 and State of Travancore Cochin vs Narayani Amma Ponnamma, A.I.R. 1958 Kerala 272, disapproved. O. A. O. A. M. Muthia Chettiar vs The Commissioner of Income tax, Madras, I.L.R. , Annamalai Chetti vs Col. T. G. The Cloeta, Mad. 189. and E. V. E. Swaminathan. The Alias Chidambaram Pillai vs Letchmanan Chettiar, (1930) I.L.R.Acqu , referred to.

A suit (No. 1262/53) Challenging the notification under Section 4 of the Land Acquisition Act dated 10 10 1952 issued by the former Government of Bombay and later another notification under Section 6 of the Act dated 14 8 1953 (issued during the pendency of the suit), notifying that the final plots Nos. 41. 42 and 43 were required for public purpose viz. State Transport was dismissed by the Trial Court on 28 1 1959. The first and the second appeals having failed, the respondents came up to this Court. This Court in its decision inter partes, Valji Bhai 's case struck down Section 6 notification on the ground that the acquisition being for the benefit of a Corporation, though for a public purpose was bad beeause no part of the compensation was to come out of the public revenue and the provisions of Part VII of the Act had not been complied with. After the bifurcation of the erstwhile State of Bombay, the land acquisition proceedings came within the cognizance of Gujarat State. The State by its letter dated 22 8 1966 decided to contribute towards compensation a sum of Re. 1/ which was subsequently raised to Rs. 500/ . The Government felt that as long time has elapsed since the earlier report under Section 5A was submitted by the Collector, a fresh enquiry should be made. Accordingly the Additional Special Land Acquisition Officer issued a notice dated 1 8 1966 intimating to the respondents that if they so desired they might submit their further objections on or before 16 8 1966. Complying with this notice, the respondents submitted further objections on 31 8 1966 and they were also given a personal hearing. After examining the enquiry report submitted by the enquiry officer the Government of Gujarat issued a notification under Section 6 on 10 10 1967. The respondents questioned the validity and legality of this notification in the writ petition filed by them on 14 2 1968 on the only ground that it was issued more than 15 years after the date of Section 4 notification. The High Court was of the opinion that if the power to make a declaration under Section 906 6 is exercised after an unreasonable delay from the date on which notification under Section 4 is issued such exercise of power would be invalid and it accordingly struck down the notification under Section 6 of the Act. Hence the two appeals one by the State of Gujarat and the other by the Gujarat State Road Transport Corporation. Allowing the appeals by certificate, the Court ^ HELD: 1. The impugned section 6 notification was issued within the prescribed period introduced by the 1967 Amendment Act and, therefore could not be struck down on the only ground that the power to issue second section 6 notification was exercised after an unreasonable and unexplained delay. Section 6 notification, dated 10th october 1967, therefore is valid and legal.[918G H, 919A] 2. A combined reading of the provisions contained in sub section (2) of Section 4 with the one contained in the proviso to sub section (1) of Section 6 introduced by the Land Acquisition (Amendment and Validation) Act, (Central Act 13 of 1967) with effect from 20 1 1967 would make it clear that the Government would be precluded from making a declaration under section 6 after the expiry of a period of three years from the date of issue of a notification under Section 4 which may be issued after the Amendment Act came into force. And in respect of those section 4 notifications which were issued prior to the commencement of the Ordinance i.e. 20 1 1967, any notification which is required to be issued under section 6 must be made within a period of two years whereafter as a necessary corollary all section 4 notifications issued prior to 20th January 1967 would stand exhausted and would not provide either a source of reservoir for issuing section 6 notification. Consequently the mischief sought to be set at naught by the High Court by reading by necessary implication in the scheme of sections 4, 5A, and 6 the concept of exercise of statutory power within a reasonable time has been statutorily remedied. The apprehensions of the High Court that if not checkmated by implying that such statutory power must be exercised within a reasonable time to curb arbitrary exercise of power to the detriment of a citizen have been taken note of by the legislature and fully met. Absence of any decided case on the subject of which High Court took note could not permit an inference as has been done by the High Court that in the absence of a decided case the legislature would not remedy the possible mischief. Legislature often does take note of a possible abuse of power by the executive and proceed to nip it in the bud by appropriate legislation and that has been done in this case. There is now no more possibility of a gap of more than three years from the date on which section 4 notification is issued, otherwise it would be invalid as being beyond the prescribed period. [916 G H, 917 A D] In the instant case, the notifications under section 4 was prior to the commeneement of the ordinance. Therefore, the provision contained in sub section (2) of section 4 of the 1967 Amendment Act would be directly attracted. The Government could, therefore, make a declaration within a period of two years from 20th January 1967. The Government has in fact issued the impugned notification under section 6 on 10th October 1967 i.e. within the period prescribed by the Statute. [917 E F] 907 3.When a period is prescuibed for exercise of power it manifests the legislative intention that the authority exercising the power within the prescribed time could not at least be accused of inaction or dithering and, therefore, such exercise of power could not be said to be bad or invalid on the only ground that there was unreasonable delay in the exercise of the power. The very prescription of time inheres a belief that the nature and quantum of power and the manner in which it is to be exercised would consume at least that much time which the statute prescribes as reasonable and, therefore, exercise of power within the time could not be negatived on the only ground of unreasonable delay. [917H, 918 A B] Therefore, in this case, there was no unreasonable delay in exercise of power and hence the exercise was neither bad nor invalid. [918B] 4. Once the legislature stepped in and prescribed a sort of limitation within which power to issue notification under section 6 could be exercised, it was not necessary to go in search of a further fetter on the power of the Government by raising the implication. [918F G] In this case, the High Court by implication read a fetter on the power of the Government to issue section 6 notification within a reasonable time after the issue of section 4 notification after observing that there was no express provision that such power ought to be exercised within a reasonable time. In raising this impliccation the High Court took into account the postulate that every statutory power must be exercised reasonably and a reasonable exercise of power implies its exercise within a reasonable time. Coupled with it two other factors were taken into consideration such as the effect of issuing a section 4 notification on the rights and obligations of the owner of the land whose land is proposed to be acquured; the right of the Government to unilaterally cancel section 4 notification in the event of fall in prices; history of legislation; and delayed issue of section 6 notification would deny adequate compensation to the owner. But by the time the High Court examined this matter the legislature had already introduced a provision by which the power to issue section 6 notification was to be exercised within the prescribed period of time. At that stage there hardly arose a question of a search of the fetter on the power of the Government ignoring to some extent the express statutory provision. [918C F] 5. In the case of death of a party to a proceeding who is joined in his capacity as Karta of an undivided Hnndu family, if the undivided Hindu family continues to be in existence the succeeding Karta can be substituted for the deceased Karta of the family and that would be sufficient compliance with Order XXII Rule 4 of C.P.C. [911D E] In the insant case an application made under Order XXII Rules 10 C.P.C. made after the prescribed period of limitation and in order to avoid seeking condonation of delay for setting aside abatement is not correct. [911E] [The Court, however, overruled the objection on this ground since the L.rs. have already been substituted].

Respondent No. 2, a scheduled caste, filed a case for restoration of lands sold to respondent Nos. 1, 3 and 4, non scheduled castes, on the ground that the sale was in viola tion of section 22 of the Orissa Land Reforms Act, 1960 as the requisite permission of the Revenue Officer was not obtained. In the sale deed the transferor Respondent was described as 'Rajaka ' while in the caste certificate he was mentioned as ' Dhoba '. The Revenue Officer rejected the ease. Respondent No. 2 filed an appeal which was allowed by the Additional District Magistrate. Against the order of Additional District Magistrate a revision was preferred by respondent No. 1 which was dismissed by the Special Officer, Land Reforms by holding that merely because the word 'Raja ka ' does not find mention in the Scheduled Caste Order, 1950 does not exclude it from the purview of such an order. In the connected appeal respondent No. 5 filed a case for restoration of land sold to respondent No. 1 which was allowed by the Revenue Officer. The appeal filed by respond ent No. 1 was dismissed by the Additional District Magis trate. A Revision preferred by Respondent No. 1 was also dismissed by the Special Officer Land Reforms. Respondent No. 1 filed writ petitions in the High Court which quashed the orders made by the Special Officer, hold ing that the Revenue Authorities committed a serious error of law in holding that 89 'Rajaka ' caste was included within the notified caste/commu nity of Dhoba '. In these appeals it was contended on behalf of transfer ee respondents that the Caste 'Rajaka ' mentioned in the sale deeds cannot be taken to be synonym of caste 'Dhoba ' men tioned in Item 26 of the List in Scheduled Castes Order, 1950. Allowing the appeals, this Court, HELD: 1. Though the respondent Nos. 2 and 5 i.e. the transferors mentioned in the deeds of transfer their caste as 'Rajaka ' there is no such caste mentioned in the Consti tution (Scheduled Castes) Order, 1950. In such circum stances, it is necessary and also incumbent on the Court to consider as to what caste they belong to. [96B] B. Basavalingappa vs D. Munichinnappa, [1965] 1 S.C.R. 316, followed. 2. 'Rajaka ' is the literal synonym for the word 'Dhoba ' and according to the Purna Chandra Oriya Bhasakosh a which is a recognised authority, the definition of 'Dhoba ' is Rajaka washerman. Therefore the submission that the caste 'Rajaka ' is different from caste 'Dhoba ' is not at all sustainable. [96A] 3. In the record of rights as well as the various cer tificates issued by the revenue authorities and the local M.L.As the transferors have been described as belonging to 'Dhoba ' community. The irresistible conclusion that follows is that the respondent transferors belong to 'Dhoba ' caste which is one of the Scheduled Caste in the State of Orissa. [96H, 97A] 3.1 Therefore the transfers made by respondent Nos. 2 and 5 in favour of respondent No. 1, who admittedly belongs to Brahmin caste, are hit by the provisions of Section 22 of the Orissa Land Reforms Act, 1960 in as much as the previous permission in writing of the Revenue Officer had not been obtained to the alleged transfers. [95C] [The transferee respondents directed to restore the lands in question to the possession of the transferor respondents forthwith.] [97C]

In the State of Madhya Pradesh vs V. P. Sharma, ; this Court held that once a declaration under section 6 of the Land Acquisition Act 1894 was made the notification under section 4(1) of the Act was exhausted and there could be no successive notifications under section 6 with respect to land in a locality specified in one notification under section 4(1). Relying on the above judgment the present writ petitions were filed in order to challenge successive notifications under section 6 following a single notification under section 4(1) in respect of land belonging to them. Meanwhile in order to meet the situation created by the judgment in V. P. Sharma 's case the President of India promulgated the Land Acquisition (Amendment and Validation) Ordinance (1 of 1967). The Ordinance was later followed by the Land Acquisition (Amendment and Validation) Act 1967. Section 2 of this Act purported to amend section 5 A of the principal Act by allowing the making of more than one report in respect of land which had been notified under section 4(1). Section 3 purported to amend section 6 of the principal Act by empowering different declarations to be made from time to time in respect of different parcels of land covered by the same notification under section 4(1) irrespective of whether one report or different reports had been made under section 5 A sub section Section 4 of the Act purported to validate all acquisitions of land made or purporting to have been made under the principal Act before the commencement of the ordinance namely January 10, 1967, notwithstanding that more than one declaration under section 6 had been made in pursuance of the same notification under section 4(1), and notwithstanding any judgment, decree or order of any court to the contrary. The Amending Act also laid down time limits for declarations under section 6 of the principal Act after the notification under s 4(1), had been issued in respect of notifications made after January 20. 1967 the time limit was three years; in respect of notification made before that date the time limit was to be two years after that date. Provision was also made for payment of interest on compensation due to persons in respect of whose land declarations under section 6 had been delayed beyond a specified period; no interest was however, to be paid to those to whom compensation had already been paid. The petitioners by leave of Court amended their petitions to attack the validity of the. aforesaid Validating Act on the following main grounds : (1) By seeking to validate past transactions of a kind which had been declared invalid by this Court without retrospectively changing the substantive law under which the past transactions had been effected the legislature was encroaching over the domain of the judicial power vested by the Constitution in the judiciary exclusively; (ii) The Validating Act did not L4Sup. C.I.1684 42 revive the notification under section 4 which had become exhausted after the first declaration under section 6 and no acquisition following thereafter could be made without a fresh notification under section 4; (iii) The Validating Act violated article 31(2) of the Constitution inasmuch as it purported to authorise acquisitions without fresh notifications under section 4 thereby allowing compensation to be paid on the basis of the said . notification under section 4 without allowing for increase in the value of land thereafter; (iv) The Validating Act violated article 14 of the Constitution in various ways. HELD: Per Wanchoo C.J., Bachawat & Mitter, JJ. (i) The American doctrine of well defined separation of legislative and judicial powers has no application to India and it cannot be said that an Indian Statute which seeks to validate invalid actions ' is bad if the invalidity has already been pronounced upon by a court of law. A.K. Gopalan vs State, ; , referred to. (ii) The absence of a provision in the amending Act to give retrospective operation to section 3 of the Act does not affect the validity of section 4. It was open to Parliament to adopt either course e.g. (a) to provide expressly for the retrospective operation of section 3, or, (b) to lay down that no acquisition purporting to have been made and no action taken before the Land Acquisition (Amendment and Validation) Ordinance, 1967 shall be deemed to be invalid or even to have become invalid because, inter alia, of the making of more than one declaration under section 6 of the Land Acquisition Act, notwithstanding any judgment decree or order to the contrary. Parliament was competent to validate such actions and transactions, its power in that behalf being only circumscribed by appropriate entries in the Lists of the Seventh Schedule and the fundamental rights set forth in Part III of the Constitution. Section 4 of the Amending Act being within the legislative competence of Parliament, the provisions thereof are binding on all courts of law notwithstanding judgments, orders or decrees to the contrary rendered or made in the past. [67 C F] Case law referred to. (iii) The impugned Act does not violate article 31(2). The Act does not in express terms enact any law which directly affects compensation payable in respect of property acquired nor does it lay down any principles different from those which were already in the Land Acquisition Act of 1894. After the amendment of the Constitution in 1955 the question of compensation is not justiciable and it is enough if the law provides that a person expropriated must be given compensation for his property or lays down the principles therefor. [67 G H] The Legislature might well have provided in the Act of 1894 that it would be open to the appropriate Government after issuing a notification under section 4 to consider objections raised under section 5 with regard to the different localities from time to time enabling different reports to fie made under section 5 A with consequent adjustments in section 6 providing for declarations to be made as and when each report under section 5A was considered. By the validation of action taken under section 6 more than once in respect of a single notification under section 4, the original scheme of acquisition is not altered. The public purpose behind the notification remains the same. It is not as if a different public purpose and acquisition of land for such purpose were being interploated by means of the Validating Act. Only the shortcoming in the Act as to want to provision to enable more than one decla ration under section 6 are being removed. [68 D F] 43 The date of valuation under the Validation Act is that of the issue of notification under section 4(1), a principle which has held the field since 1923 Legislative competence to acquire land under the provisions of the Land Acquisition Act cannot be challenged because of constant appreciation of land values all over the country due to the prevalent abnormal inflation. There must be some time lag between the commencement and conclusion of land acquisition proceedings and in principle there is nothing wrong in accepting the said commencement as the date of valuation. Sections 4 and 23 of the Land Acquisition Act are protected by article 31(5) (a) of the Constitution. Only sections 5 A and 6 of the Act have been amended. The amendment does not alter the principle of compensation fixed by the Act nor contravene article 31 of the Constitution in any way. [69 G 70 B] It cannot be said of the Validating Act that it was fixing an arbitrary date for the valuation of the property which bore no relation to the acquisition proceedings. The population in Indian cities especially in the capital is ever increasing. The State has to plan the development of cities and it is not possible to take up all schemes in all directions at the same time. The resources of the State may not be sufficient to acquire all the area required by a scheme at the same time. Of necessity the area under the proposed acquisition would have to be carved into blocks and the development of one or more blocks at a time could only be taken up in consonance with the resources available. Even contiguous blocks could be developed gradually and systematically. In view of such factors it cannot be said that the principle of fixing compensation on the basis of the price prevailing on the date of the notification under section 4(1) of the Land Acquisition Act was not a relevant principle which satisfied the requirements of article 31(2).[70 C 71 H] The State of West Bengal vs Mrs. Bela Banerjee, ; , State of Madras vs D. Namasivaya Mudaliar, ; and, P.V. Mudaliar vs Deputy Collector, ; , considered. (iv) The validating Act was not violative of article 14. Whenever an Amending Act is passed there is bound to be some difference in treatment between transactions which have already taken place and those which are to take place in the future. That by itself will not attract the operation of article 14. Again, even with respect to transactions which may be completed in the future, a reasonable classification will not be struck down. [72 C] Jalan Trading Co. vs Mazdoor Union, ; , relied on. It is not possible to say that because the Legislature thought of improving upon the Act of 1894 by prescribing certain limits of time as from 20th January 1967 the difference in treatment in cases covered by the notification before the said date and after the said date denies equal protection of laws because the transactions are not similarly circumstanced. Some of the notifications issued under section 4 must have been made even more than 3 years before 20th January, 1967 and such cases obviously could not be treated in the same manner 'as notifications issued after that date. article 14 does not strike at differentiation caused by the enactment of a law between transactions governed thereby and those which are not so governed. [73 H 74 B] Hatisingh Manufacturing Co., Ltd. vs Union of India, ; No grievance can be made because interest is denied to persons who have already taken the compensation. Even here the classification is not unreasonable and cannot be said to be unrelated to the object of the Act. [74 E F] 44 Per Shelat and Vaidialingam, JJ. (dissenting) By validating the acquisition orders and declarations made on the basis of an exhausted notification under section 4 the impugned Act saves government from having to issue a fresh notification and having to pay compensation calculated on the market value as on the date of such fresh notification and depriving the expropriated owner of the benefit of the appreciated value in the meantime. The real object of section 4 of the impugned Act is thus to save the State from having to compensate for such appreciation under the device of validating all that is done under an exhausted section 4 notification and thus in reality fixing an anterior date i.e. the date of such a dead section 4 notification for fixing the compensation. The impugned Act thus suffers from a two fold vice : (i) that it purports to validate acquisitions orders and notifications without resuscicating the notification under section 4 by any legislative provision on the basis of which alone the validated acquisitions, orders and declarations can properly be sustained and (ii) that its provisions are in derogation of article 31(2) as interpreted by this Court by fixing compensation on the basis of value on the date of notifications under section 4 which had become exhausted and for keeping them alive no legislative provision is to be found in the impugned Act. It is therefore not possible to agree with the view that the purpose of section 4 is to fill the lacuna pointed out in Sharma 's case nor with the view that it raises a question of adequacy of compensation. The section under the guise of validating the acquisitions, orders and notifications camouflages the real object of enabling acquisitions by paying compensation on the basis of values frozen by notifications under s 4 which by part acquisitions thereunder had lost their efficacy and therefore required the rest of the land to be notified afresh and paying compensation on the date of such fresh notifications. The fact that neither section 4 nor section 23 of the principal Act are altered does not make any difference. [89 D H, 85 H] Section 4 of the Amending Act must therefore be struck down as invalid. [90 A]

The respondent sued the State of Bihar for a declaration that the Bihar Land Reforms Act, 1950, was ultra vires, void and unconstitutional and for a permanent injunction restraining the State and its officers or agents from issuing any notification thereunder in respect of her estate or taking possession thereof and on a petition filed along with the plaint obtained an order of temporary injunction against the State in terms of her prayer, pending the hearing of the suit. More than a year thereafter, the State made an application under 0. 39, r. 4 of the Code for a discharge of the order of temporary injunction on the ground that the impugned Act had in another case been declarer valid by the Supreme Court. Before that application could, however, be heard, the State of Bihar, on May 19, 1952 issued a notification under section 3(1) of the Act, authenticated by the Additional Secretary to the Government, declaring that, amongst others, the respondent 's estate had vested in the State of Bihar under the provisions of the Act. Thereupon the respondent moved the trial Court for taking action against the State under 0. 39, r. 2(3) of the Code. The contention on behalf of the State was that in view of article 31 B of the Constitution the issue of the notification was lawful and could not constitute contempt of Court. The Subordinate judge held that this was no defence to the application by the respondent and directed attachment of the appellant 's property to the value of Rs. 5,000 and the High Court on appeal affirmed that decision. Held, that the courts below took the correct view of the matter and that the appeal must be dismissed. The procedure laid down by 0. 39, r. 2(3) of the Code of Civil Procedure is remedial and essentially one for the enforcement or execution of an order of temporary injunction passed under 0. 39, r. 2(1) and is available against the State although the provision for detention may not apply to it. It is wrong to say that it is either contrary to article 300 of the Constitution or hit by the rule that no action lies against the State in tort or for a wrong doing entailing punishment or compensation. District Board of Bhagalpur vs Province of Bihar, A.I.R. 1954 729 Pat. 529 and Tarafatullah vs section N. Maitra, A.I.R. 1952 Cal. gig, distinguished. There is also no basis for the contention that the State is not expressly or by necessary implication mentioned in 0. 39, r. 2(3). The word 'person ' used by it, properly construed, includes the defendant against whom the order of injunction is primarily issued as also the defendant 's agents, servants and workmen. Since the court 's power to issue an order of temporary injunction against the State under 0. 39, r. 2(1) cannot be in doubt, disobedience of such an order when issued necessarily attracts 0. 39, r. 2(3) of the Code. Director of Rationing & Distribution vs Corporation of Calcutta, ; , held inapplicable. Held, further, that when once an order is passed which the Court has jurisdiction to pass, it is the duty of the State no less than any private party to obey it so long as it stands, and the conduct of the State Government in the instant case in issuing the notification at a time when its application for vacating the injunction was still pending and the attitude taken up by it after the application under 0. 39, r. 2(3) was made and persisted in till the end must be disapproved.

The respondent gave notice to the appellants terminating the lease of agricultural land situated within two miles of the limits of the Municipality and filed a suit for eviction. The suit was contested, inter alia, on the ground that under the provisions of the Bombay Tenancy Act, 1939, the defendants had acquired tenancy rights. The civil Judge, inter alia, held that the 1939 Act was repealed by the Bombay Tenancy and Agricultural Land Act, 1948, which did not apply to the suit land, as it was within two miles of the limits of the Surat Borough Municipality and decreed the suit. On appeal, the District Judge held that the 1948 Act applied to the Suit land and set aside the decree of the trial Court. In second appeal by the plaintiff, the High Court held that the suit land was within two miles of the limits of the Municipality and therefore, the 1948 Act did not apply to the suit land. On appeal by Special Leave the appellants contended that their rights under the 1939 Act were saved and preserved under section 89(2) of the 1948 Act with the result that the lease extended to 10 years under the 1939 Act was saved thereunder, and by reason of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952, which brought the suit land within the scope of the 1948 Act, their rights so preserved came to be governed by the provisions of he 1948 Act and, therefore, they could not be evicted except in the manner prescribed by the provisions of the Act. The respondent contended that the saving provision in section 89(2) of the 1948 Act operates only if there is no express provision to the contrary and that the saving of the appellant 's right would be otiose, as he could not enforce his right under the 1948 Act. Held:(i) Before the suit was disposed of, the 1952 Act came into force, and by reason of the extension of the 1948 Act to the suit land, the respondent could not evict the appellants except in the manner prescribed by the 1948 Act. (ii)The respondent 's contention must be rejected. There is an express provision found in section 88(1) of the 1948 Act, in as much as it says that the provisions of sections 1 to 87 will not apply to the area in question. (iii)As there was a right recognized by law there was a remedy and, therefore. in the absence of any special provisions indicating a 774 particular forum for enforcing a particular right the general law of the land would naturally take its course. The High Court, therefore, was wrong in holding that the appellants could not claim the benefit of the provisions of the 1948 Act. Sakharam (a) Bapusaheb Narayan Sanas vs Manikchand Motichand Shah ; relied on.

The Ziarat Shareef of Hazrat Baba Ibrahim, a holy place of worship, in the Rakhbahu area of Jammu City was granted certain land to the Ziarat by the State Government vide two orders dated September 22, 1955 and November 29, 1958. The Ziarat was being managed by the 1st appellant and his brothers, since the death of their father in 1963. The Committee of Muslim Wakf, incorporated under the Jammu and Kashmir Muslim Wakf Act, which came into force in 1959, file a suit for restraining them from alienating, raising construction or recovering the rent from the Wakf land in dispute vested in the Ziarat, on the allegation that the appellants defendants were treating the lands granted to the Ziarat, as their personal property and mismanaging and also alienating the same. Resisting the suit, the appellants, defendants contended, inter alia, that notwithstanding the use of the word "Ziarat" in the two Government orders the transfer of the land in dispute was in their father 's favour in his personal capacity, in lieu of his possessory right over about 400/500 kanals of land which was taken over by the Government, and not in the form of any dedication, and as such the land was not the property of the Ziarat but their father 's absolute property, and had devolved upon them by succession and, therefore, they had the right to deal with the property in any manner they liked. The trial court dismissed the suit, holding that the two grants were in fact made in favour of defendants ' father and not the Ziarat. 254 The first appellate court upheld the trial court 's findings. However, in second appeal, the High Court held that from the recitals of the two orders of the Government of 1955 and 1958 it was clear that the two grants were in favour of the Ziarat. Hence, the appellants defendants filed the appeal, by special leave before this Court contending that the High Court had erred in upsetting the findings of the courts below, based on appreciation of the evidence that, as a fact, the appellants defendants were the owners of the property, the subject matter of the Government grants. Dismissing the appeal, the Court, HELD: 1.1 The two orders of the Government dated September 22, 1955 and November 29, 1958 are absolutely clear and unambiguous and can admit one and only one interpretation that the Government intended to grant the land to the Ziarat alone and not to the appellants defendants in their personal capacity. In fact the names of the appellants defendants or their ancestors are not even mentioned in the two orders. The order of 1955 specifically stated that the lands in Rakhbahu surrounding the Ziarat Shareef of Baba Ibrahim Shah be granted to the said Ziarat permanently. The later order of 1958 also says the same thing. It is nowhere mentioned in any of those orders that the land was given not to the Ziarat but to the father of the appellants defendants, who was Majawar of the Ziarat, either in his personal capacity or in lieu of compensation for his personal lands acquired by the Government. [259A, B C] 1.2 A manager or a trustee in possession of a religious shrine cannot be allowed to assert a hostile title unless he formally surrenders possession to the lawful authority. [260B] In the instant case, there was no justification for the appellants defendants to cast their covetous eyes on the property of the Ziarat, taking advantage of their possession over the same, which was as managers or trustees and assert a hostile title to it. Even if they were in possession of the lands, it would have to be referable to a lawful title and cannot be treated to be adverse to the Ziarat. In other words, the possession would be for. the benefit of the Ziarat. [259H, 260A, E] 1.3 In the face of clear and unambiguous terms of the Government orders, it was not permissible for the appellants defendants to adduce evidence to show that the grant was made to them and not to the 255 Ziarat. The question was of interpretation of two Government orders, which was essentially a question of law. [260G] In the circumstances, the High Court was not in error in upsetting the findings of the courts below. [260F]

The respondent 's land admeasuring 5 acres 589 1/3 Sq. yards was acquired by the State Government in 1963 for a housing scheme and compensation at Rs.1.58 per Sq. yard was awarded. On reference, the Civil Court enhanced the compen sation to Rs. 10 per Sq. yard with solatium at 15 per cent and interest at 4 per cent. On appeal and cross appeals, the High Court confirmed the award. In the appeal before this Court, on behalf of the De partment, it was contended that the respondent had purchased the land in question in 1961 in three documents at Rs.0.42 p. per sq. yard and sold in 1963 one acre of the land at Rs.5 per sq. yard and, therefore, the deeds under which the transactions took place reflected the prevailing market value of the land in question, and courts below committed grave error in relying on a decision of the High Court awarding Rs. 10 per sq. yard in respect of another land acquired under a Notification of 1961, and that when a large extent of land was acquired for a housing scheme, at least 1/3 of the land should be deducted towards laying the roads, setting up parks, drainage and other amenities. Allowing the appeal, this Court, HELD: 1.1 The market value postulated in Section 23(1) of the Land Acquisition Act, 1894 is designed to award just and fair compensation for the lands acquired. The word "market value" would postulate price of the land prevailing on the date of the publication of the notifica 473 tion under Section 4(1). In determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis. For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price. The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land pos sessing similar advantages to the land in neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value. [475E G] Periya & Pareekanni Rubbers Lief. vs State of Kerala, [1990] Supp. 1 SCR 362, referred to. 1.2 In the instant case, admittedly, the claimant pur chased land at Rs.0.42 p. and in a span of one year and four months, sold at Rs.5 per sq yard. When the claimants them selves sold as a willing seller of an acre of land @ Rs.5 per sq. yard, if a large extent of five acres and odd under acquisition is offered to be sold as a block, it would not fetch higher rate but surely be negotiated for a lesser rate, if not the same market value of Rs.5 due to time lag of nine months. May be the payment of Rs. 10 per sq yard to the owner of another land acquired in 1961 was a windfall. Taking the totality of the facts and circumstances, the High Court committed grave error in completely ignoring the sale transactions of the lands under acquisition. In view of the time lag, the prevailing market value of the land as on the date of the notification would be Rs.6 per sq. yard. [476B, E G] 1.3 In Building Regulations, setting apart the lands for development of roads, drainage and other amenities like electricity etc. are condition precedent to approve lay out for building colonies. Therefore, based upon the situation of the land and the need for development, the deduction shall be made. Where acquired land is in the midst of al ready developed land with amenities of roads, drainage, electricity etc. then deduction of 1/3 would not be justi fied. In the rural areas housing schemes relating to weaker sections, deduction of 1/4 may be justified. [477G H, 478A] Spl. Tehsildar, Vishakapatnam vs Rednam Dharma Rao & Ors., CA No. 4187 of 1982 decided on July 17, 1990; Tribeni Devi & Ors. vs Collector of Ranchi, ; at 213; Smt. Kaushalya Devi Bogre & Ors. vs The Land Acquisi tion Officer, Aurangabad; , ; Vijay Kumar Motilal vs State of Maharashtra, ; Vijay singh Liladhar vs Special Land Acquisition Officer, 760; Spl. Land Acquisition Officer, Bangalore vs T. Adinaray an Setty, [1959] Sppl. 1 SCR 404 and The Tehsildar, Land Acquisition, Vishakapatnarn P. Narasing Rao & Ors., , relied on. 1.4 In the instant case, 1/3 of the market value should be deducted for development of the lands. [478B] 1.5 The market value is determined at Rs.6 per sq. yard and after deducting 1/3 for development of lands, it would be Rs.4 per sq. yard. [478C] 2. It is settled law that when wrong application of a principle has been made or important points affecting valua tion have been overlooked or misapplied by the High Court or Reference Court, this Court would, under Article 136 of the Constitution, correct the same. The Spl. Land Acquisition Officer, Bangalore vs T. Adina rayan Setty, [1959] Suppl. 1 SCR 404; Dattatrayaya Shankarb hat Ambalgi and Ors. vs The Collector of Sholapur and Anr., ; The Dollar Co. Madras vs Collector of Madras, and Padma Uppal etc. vs State of Punjab & Ors. , ; , relied on.

l Appeal No. 173 of 1951. Appeal from the Judgment and Decree dated February 22, 1949, of the High Court of Judicature at Calcutta (Blank and Lahiri JJ.) in Appeal from Original Decree No. 23 of 1944 &rising out of Judgment and Decree dated August 25, 1943, of the Court of the Subordinate Judge, Zilla Midna pore, in Title Suit No. 30 of 1941. Panchanan Ghose (S.N. Mukharjee, with him) for the appellant. Sarat Chandra Jana and Bijay Kumar Bhose for respondent No. 1. Arun Kumar Dutta for respondents Nos. 2 (b) and 15. 278 1952. December2. The Judgment of the Court was delivered by MAHAJAN J. The circumstances under which this ,appeal arises are as follows Touzi No. 2409 of the Midnapore Collectorate consists of several mouzas including mouza Dingol. The annual land revenue payable in respect of the entire touzi is Rs. 2,892 8 0. This touzi was distributed into two shares, one being a separate account bearing No. 249/1 and the other being the residuary share. Both these shares came in course of time to be held by a single person, viz., Jiban Krishna Ghosh and from him they devolved upon his two sons, Sudhir Krishna Ghosh and Sunil Krishna Ghosh, defendants 2 and 3 in the present suit. Both the two accounts were recorded in their names as joint proprietors. Under touzi No. 2409 there was a patni which included mouza Dingol. In the year 1885 Kritibas Hui purchased a share of the said patni. His father Ramnath Hui purchased some transferable occupancy ryoti lands under the said patni. These lands are described in schedule " Ka " of the plaint. Kritibas Hui, while he was a co sharer patnidar, purchased some transferable ryoti lands under the patni described in schedule " Kha " of the plaint. Kritibas Hui died in the year 1906 or 1907 and his father Ramnath died in the year 1908 or 1909 soon after the death of his son. On the death of Kritibas Hui, the plaintiff s, four in number, being his sons and nephews, inherited the patni and the other properties left by him. Subsequently on the death of Ramnath, the plaintiff s while they were co sharer patnidars, inherited the aforesaid transferable occupancy ryoti lands under the patni purchased by Ramnath. Occupancy ryoti lands in schedule " Ga " of the plaint were purchased by the plaintiffs by different kabalas on different dates, after they had inherited the lands mentioned in schedules " Ka " and " Kha of the plaint. Similarly the niskar lands mentioned in schedule " Gha " of the plaint were purchased by 279 the plaintiffs after they had taken the inheritance of their father and grandfather. By the same process they acquired the mokarrari maurashi interest under the Bahali niskar lands of Sree Ishwar Dwar Basuli Thakurani mentioned in schedule "Una" annexed to the plaint. On the 22nd April, 1938, by a registered kabala the plaintiffs sold their interest in the patni to one Upendranath Pal. Upendranath Pal thus became the patnidar of the six anna share that was held by the plaintiffs prior to the year 1938. The rest of the interest in the patni which had been acquired by Satish Chandra Hui, respondent No. 1, was also sold to one Gouranga Sundar Das Gupta along with Upendranath Pal. The plaintiffs thus ceased to have any interest in the patni and remained in possession of the lands in the status of occupancy ryots or undertenure holders. When the plaintiffs in the year 1938 sold their patni interest they were heavily indebted to their landlords Sudhir Krishna Ghosh and Sunil Krishna Ghosh for arrears of patni rent. On the 25th March 1939, the landlords filed a suit claiming a sum of Rs. 16,835 3 6 as arrears of rent due to them from April, 1935, to March, 1939, in the court of the subordinate judge of Midnapore against the recorded patnidars (viz., the plaintiffs) without recognizing the transfer made by them. While this suit was pending, the landlords failed to pay the March kist of the revenue and cesses of the touzi in both the accounts, with the result that both the undivided half shares of the touzi represented by separate account No. 1 and by residuary account were advertised for sale on 24th June, 1939, under section 6 of the Bengal Land Revenue Sales Act (XI of 1859). The notice advertising the sale is exhibit H. It notified sale of the shares in the estate as such and did not state that the entire estate would be sold. In column of the notification the arrears due from the two shares were entered separately. Both these shares were actually sold on the issue of a single notice and at a 280 single sale and were purchased by defendent 15 the appellant before us. The sale certificate shows that what was certified to have been purchased by the appellant was the separate account share as also the residuary share making up between them the totality of the touzi. On the 9th January, 1940, defendant 15 (the appellant) in exercise of the rights conferred by section 37 of the Revenue Sales Act as purchaser of an entire estate in the revenue sale served a notice on the maha expressing his unequivocal intention to annul and avoid all under tenures including patnis and darpatnis. On the same date he is alleged to have taker possession of some plots of land in possession on under tenure holders, encumbrance holders and niskardars. The revenue sale held on 24th June, 1939, has lead to a crop of litigations. As already stated, the land lords had sued for the recovery of the arrears of rent due from the patnidars, viz., the plaintiffs, before the sale took place. That suit was decreed on the 14th May, 1940. An application was made for execution of the decree on 21st June, 1940, by attachment and sale of certain plots in possession of the judgment debtors On behalf of the judgment creditors it was contended that the entire touzi having been sold under the revenue sale, the purchaser had become entitled to annul the tenure under section 37 of the Revenu Sales Act and as a matter of fact had annulled the same and consequently the tenure itself having expired, section 168 A of the Bengal Tenancy Act did not apply and the decree was executable against other properties of the judgment debtors. This con tention was upheld by the subordinate judge but was negatived in appeal by the High Court, and it was held that the revenue sale was a sale of the shares on the touzi under section 13 of the Revenue Sales A and the purchaser did not acquire any right to and the tenures, he not being a purchaser of the entire estate as such and therefore the patni being in existence, the decree holder could not execute the decre 281 for arrears of rent of the patni against other properties of the judgment debtors. (Vide Satish Chandra Hui vs Sudhir Krishna Ghosh (1), decided in February, 1942, during the pendency of the present suit). The appellant was not a party to those proceedings. For the second time the question whether at the same revenue sale defendant 15 purchased the entire estate or two separate shares only arose in a case wherein he was impleaded as a party. Bimal Kumar Hui and another brought a suit some time in the year 1941 for establishment of their rent free title in certain lands and for confirmation of their possession. The present appellant was impleaded as defendant 2 in the suit as purchaser of the touzi and as claiming to have annulled the plaintiffs ' interest. Defendant 2 pleaded that an entire touzi had been purchased by him at the revenue sale and he had thereafter annulled the interest held by the plaintiffs and they were disentitled to relief as they had no subsisting interest in the plots of land claimed by them. , This plea was negatived up to the High Court and the plaintiffs ' suit was decreed. (Vide ' Gunendranath Mitra vs Bimal Kumar Hui (2) decided in September, 1948). Harries C. J. and Chakravarti J. in a very well considered and reasoned judgment reached the conclusion that the revenue sale in favour of the appellant was a sale of two separate shares under the provisions of section 13 of Act XI of 1859 and not of the entire estate and that he had not acquired the. right to annul the encumbrances under section 37 of the Revenue Sales Act. The third occasion on which the effect of the revenue sale held on 24th June, 1939, came up for consideration by the High Court arose in the suit which has given rise to the present appeal. On the 28th June, 1941, the plaintiff respondents, Satish Chandra Hui and others, instituted title suit No. 30 of 1941 for a declaration of title and confirmation of possession of certain plots of land in the court of (1) (2) 282 the subordinate judge of Midnapore. There was the usual preliminary skirmish between the parties antecedent to the suit, resulting in proceedings under section 144, Criminal Procedure Code. Possession of the paddy crop growing on a number of plots was taken by the District Magistrate and eventually under the orders of the High Court the crop was handed over to defendant 1, an employee of the appellant. In this suit the present appellant was impleaded as defendant 15. In the plaint it was averred that the plaintiffs were in possession of the plots of land mentioned in schedules " Ka", " Kha" and " Ga " of the plaint as occupancy tenants, that in respect of the lands mentioned in schedules " Gha " and " Una they had niskar rights and that as in the revenue sale the appellant did not purchase the entire estate he was not entitled to annul the patni and the other tenures or the rent free grants; and that the plaintiffs having transferred the patni rights to Upendranath ,Pal which still subsisted, none of the encumbrances could be said to have been extinguished. The appellant pleaded that he was the purchaser of the entire touzi at the revenue sale held on 24th June, 1939, and had acquired the power to avoid and annual the encumbrances and that by a notice duly published on the 9th January, 1940, he had annulled all under tenures including the patni and that the transfer of the patni to Upendranath Pal was a benami transaction and that even if it was held genuine the plaintiffs ' rights in the ryoti land had been extinguished as the ryoti rights had merged with the patni rights under section 22 of the Bengal Tenancy Act as it was in force before its amendment in 1928 and that by a sale of the patni to Upendranath Pal. the plaintiffs ' rights in those lands stood transferred to him and they were not entitled to maintain any suit in respect of those plots. The trial judge decreed the suit in respect of some of the plots detailed at page 144 of the paper, book. The plaintiffs ' claim in respect of other lands mentioned in schedule " Gg " of the plaint was dismissed. 283 Plaintiffs were also given a decree for Rs. 416 4 0 against defendant 1 on account of the paddy of 55 1/2 bighas of the land out of schedules. "Ka ", " Kha " and " Ga ", to which they had proved their title and of which they were entitled to recover khas possession. It was held that at the revenue sale the entire touzi did not pass to the appellant and he had acquired no right to annul or avoid the under tenures and encumbrances, that the ryoti holdings of the plaintiffs had merged in the patni and had passed to, Upendranath Pal on the sale of the patni to him on 22nd April, 1938, but that Upendranath Pal had resettled these lands with the plaintiffs and they being settled the ryots of the village had acquired occupancy rights in these plots. The plots of land described in schedule Ga " were held as not assessed to revenue and that being so, defendant 15 was held not entitled to possession of these niskar lands. Defendant 15 preferred an appeal to the High Court against the judgment of the subordinate judge, while the plaintiffs preferred cross objections. The appeal and the cross objections were both dismissed by the High Court and the findings of the trial judge were maintained. It was contended before the High Court that the revenue sale, though held in fact under section 13 of Act XI of 1859, should be deemed to have been held under section 3 and that the appellant had acquired all the rights of the purchaser of an entire estate. The High Court negatived this con tention and observed that on a plain reading of section 13 the contention could not be sustained, the essential conditions for the exercise of jurisdiction under section 13 being the existence of a separate account or accounts, and the liability of the entire estate for sale for revenue arrears and that both these conditions having been fulfilled in this case, the Collector rightly proceeded under section 13 to sell the shares and that the additional provisions mentioned in the second paragraph of the section need only be complied with in cases where there does exist a share from which no arrear is due it was further 37 37 284 hold that though the old occupancy rights of the plaintiffs merged in the patni and passed to Upendranath Pal after the sale of the patni to him, the action of Upendranath Pal in realizing the rent from the plaintiffs amounted to a resettlement and that by his action he had conferred a right of tenancy upon the plaintiffs who being settled ryots of the village acquired a right of occupancy in all the lands in respect of which rents were realized. ' This decision was announced by the High Court on the 22nd February, ' 1948, and is in appeal before us on a certificate granted by the High Court on 25th August, 1960. For the fourth time the same question came up for consideration before the High Court after the decision under appeal and the view expressed in its earlier judgments by the High Court was followed. [Vide Gowranga Sundar vs Rakhal Majhi (1).] Mr. Ghosh for the appellant argued two points before us : (1) that defendant 1 5 being the purchaser of an entire estate at a revenue sale had all the rights conferred upon him by section 37 of the Bengal Land. Revenue Sales Act, and all under tenures stood annulled and plaintiffs had no rights in the lands in suit in which they had no occupancy rights, and (2) that the plaintiffs were not entitled to a decree on the basis of the resettlement of land, which case was never made out by them, and which was inconsistent with the pleadings and evidence and that on the facts proved there could not be any legal inference of resettlement. In our opinion, neither of these contentions is well founded. Section 6 of Act XI of 1859 authorizes the Collector after the latest day of payment fixed in the manner prescribed in section 3 of the Act has expired, to issue a notification specifying the estates or shares of estates which have to be sold for recovery of arrears of revenue, and further authorizes him to put up to public auction on the date notified for sale, the estates or (1) 285 shares of estates so specified. The contents of the notifi cation issued for the sale in question in unambiguous terms indicate that two separate units of the estate from which separate items of arrears ' were due were notified for sale. No entry was made in the notification in the column meant to be filled in when the entire estate is to be put up for sale. In the face of these facts it was conceded by Mr. Ghosh that the sale in fact took place as provided for in section 13 of Act XI of 1859 and what was actually put up for sale were two separate shares in the estate which made up the totality of the estate. The learned counsel, however, contended that the sale should be deemed to have been of an entire estate, as both the shares sold con stituted the totality of the estate and because section 13 could have had no application to a case wherein both the accounts were in default, the section having application only in cases where there at least exists a share that is not in default and which needs protection against the default of the, other co sharers. This argument, though attractive, is fallacious. To hold that a sale, which in fact was of two different accounts, is to be deemed to be a sale of the entire estate would be tantamount to converting a fact into a fiction by a judicial verdict. The notification under section 6 issued by the Collector must, in our opinion, be considered as conclusive on the point as to what the subject matter of the sale was, i.e., whether what was sold was the entire estate or two shares. The appellant is really on the horns of a dilemma. If the contention of his learned counsel that the sale by the Collector of shares of the estate was not authorized by section 13 is taken seriously, the sale would then be a nullity as under none of the provisions in the Revenue Sales Act such a sale could be held in the manner adopted and the appellant would have no title under it whatsoever; if such a sale is authorized by section 13 of the Act, then it gives him no rights to annul the undertenures. In either event, be cannot resist the plaintiffs ' suit. In our judgment, it has been rightly held 286 in the courts below that the appellant at this revenue sale did not become the purchaser of the entire touzi as such and did not become entitled to the privileges conferred on such a purchaser by the provisions of section 37 of Act XI of 1859. The contention of Mr. Ghosh that the provisions of section 13 are not attracted to a case where all the shares in an estate are in default and that in that event the only authority that the Collector has is to put up for auction the entire estate is again, in our opinion, not well founded. Before the Revenue Sales Act was passed in 1869 estates were being put up for sale for arrears irrespective of the question whether the majority of the cosharers had deposited their shares of the revenue or whether the amount due was large or small. The cosharers who had paid their shares within the due date were affected seriously by such sales. Provision was therefore made in 1859 for affording protection to the cosharers who were willing to pay and had ' paid their share of the revenue. On the application of the parties the Collector began to keep a record of separate accounts in the names of the different cosharers. The liability of the entire estate for the total amount of revenue was not in any way affected by this arrangement. 'The only privilege given was that if the cosharers had got separate accounts opened in the collectorate the revenue apportioned for the particular cosharers would be receivable by the Collector. At the initial stage the shares belonging to such of the cosharers who duly paid the amount allotted in their share would not be put up to sale even if there be a default on the part of one or more of the other cosharers. Only the defaulting separate accounts would be put up to sale in the first instance. If the Collector found that the total amount of the revenue in arrears was not realizable from such sale, he would thereupon stop the sale of the defaulting share and give notice that the entire estate would be put up to sale. The paramount consideration governing the whole of this Act is to preserve intact the 287 ultimate security of government for the revenue demand against the estate. By permitting the opening of separate accounts the Act seeks to give recorded sharers of a joint estate an easy means of protecting their shares from sale for the default of their cosharers, but there is no ultimate protection if the government demand is still unsatisfied. Even in cases where all the shares are in default, this protection cannot be denied because the amount of arrears due from them may be different sums of money. Sections 13 and 14 of the Act on which the argument rests are in these terms: 13. " Whenever the Collector shall have ordered a separate account or accounts to be kept for one or more shares if the estate shall become liable 'to sale, for arrears of revenue, the Collector or other officer as aforesaid in the first place shall put up, to sale only, that share or those shares of the estate from which,, according to the separate accounts, an arrear of revenue may be due. In all such cases notice of the intention of excluding the share or shares from which no arrear is due shall be given in the advertisement of sale prescribed in section 6 of this Act. The share or shares sold, together with the share or shares excluded from the sale, shall continue to constitute one integral estate, the share or shares sold being charged with the separate portion, or the aggregate of the several separate portions, of jama assigned thereto. If in any case of a sale held according to the provisions of the last preceding section the highest offer for the share exposed to sale shall not equal the amount of arrear due thereupon to the date of sale, the collector or other officer as aforesaid shall stop the sale, and shall declare that the entire estate will be put up to sale for arrears of revenue at a future date,unless the other recorded sharer or sharers or one or more of them, shall within ten days purchase the share in arrear by paying to the Provincial Government the whole arrear due from such share. 288 If such purchase be completed, the Collector or other officer as aforesaid shall give such certificate and delivery of possession as are provided or in sections 28 and 29 of this Act to the purchaser or purchasers, who shall have the same rights as if the share bad been purchased by him or them at the sale. If no such purchase be made within ten days. as aforesaid I the entire estate shall be sold, after notification for such period and publication in such manner as is prescribed in section 6 of this Act. " The concluding words of section 14 furnish a key to the construction of these sections. When a contingency arises in a case, where two separate accounts have been kept, to sell an entire estate, a fresh notification has to issue in accordance with the provisions of section 6 of the Act notifying that the entire estate is for sale. In the absence of such a notification a sale of an entire estate is not authorised in such a case. Section 13 thus empowers the Collector where separate accounts are kept, to sell the shares in default as such, there being no scope for the operation of paragraph 2 of the section where all the shar ers ' are in default. There is nothing in that section which disentitles the Collector where two separate accounts have been kept and both of them are in default, to notify for sale the separate accounts for recovery of arrears due from each of them separately, or to bring several defaulting shares to sale all at once without following the procedure laid down in section 13. If the Collector proposes to sell the entire estate, where there are several accounts, the first step he has to take is to close the separate account or accounts or merge them into one demand and the next step would be to issue a notification for sale of the entire estate under section 6 and it is only when the Collector has followed this procedure that he would have authority to bring to sale the entire estate and not otherwise . In this case no such thing was done. The demands against the two shares were not merged into one item and the entire estate could not 280 be sold for two separate demands. It could only be notified for sale for recovery of a single sum of arrears due from the entire estate. In our judgment, therefore, it is not right to hold as was contended by Mr. Ghosh that a sale for arrears of revenue is not a sale under section 13 unless there is a share from which no arrear is due and unless a notice of the intention of excluding that share is given in the advertisement of sale under section 6 of the Act that that share is excluded from sale. The second point of Mr. Ghosh that no inference should have been drawn in this case that the lands in suit were resettled by the purchaser of the patni on the plaintiffs is also without force. The facts from which an inference of resettlement has been drawn by the courts below were alleged in the plaint and on those facts such an inference could be justifiably raised. The plaintiffs had been paying rent to the purchaser of the patni on the land in their possession and this was accepted by the purchaser as if they were his tenants. In those circumstances the absence of a 'specific pleading as to resettlement could not in any way be said to prejudice defendant 15 's case. Upendranath Pal having treated the plaintiffs as tenants, defendant 15 has no right to question their interest and it must 'be held that their claim was rightly decreed in the courts below to the extent that they were able to establish it. The appeal before us was limited to the plots of land which were not covered by the sanads or regarding which plaintiffs hid not been able to prove that they were occupancy tenants. In view of our findings, however, the appeal even as regards those plots has no merits. For the reasons given above the appeal fails and is dismissed with costs. Appeal dismissed. Agent for respondents Nos. 1, 2 (b) & 15; section C.Bannerjee.

Under the Bengal Land Revenue Sales Act (XI of 1859) if this Collector proposes to sell the entire estate where there art separate accounts for the several shares which constitute the estate, he has first to close the separate account or accounts or merge them into one demand and then he has to issue a notification for the sale of the entire estate under section 6 of the Act and it is only when the Collector has followed this procedure that he would have authority to bring to sale the entire estate. Where a touzi was held in two shares in respect of which separate accounts were kept in the Collector 's records and, as the shares were in arrears a notification was issued putting up for sale the two separate units of the estate and showing the separate items of arrears due from each unit, and both the shares were sold: Held, that the sale cannot be treated as a sale of the entire estate even though the two shares constituted the whole estate, and the purchaser was not entitled to the privileges conferred on the purchaser of an entire estate by section 37 of the Bengal Land Revenue Sales Act, 1859. The notification issued under section 6 of the Act was conclusive as to whether the subject matter of the sale was the entire estate or the separate shares constituting the estate.

The appellant instituted a suit for the recovery of money against the respondents in a Court in Gwalior State in May 1947. The respondents who were residents in U. P. did not appear before the court and in November 1948 the Gwalior Court passed an ex partc decree. On September 14, 1951, the Gwalior Court transferred the decree for execution to Allahabad, and on October 16, 1951, the appellant filed an application for execution of the decree before the Allahabad Court. The respondents contended that the decree being a decree of a Foreign Court to whose jurisdiction they had not submitted was a nullity and the execution application in respect thereof was not maintainable. Held, that the decree was not executable at Allahabad. Per Kapur, Ayyangar and Mudholkar, JJ.The decree of the Court in Gwalior State sought to be executed was a foreign decree which not change its nationality inspite of subsequent constitutional changes or amendments in the Code of Civil Procedure. On the day on which it passed the decree the Gwalior Court was a foreign Court within the meaning of section 2 (5) of the Code. None of the conditions necessary to give its judgment extra territorial validity existed (i) the respondents were not the subjects of Gwalior; (ii) they were not residents in Gwalior at the time the suit was filed, (iii) they were not temporarily present in gwalior when the process was served upon them, (iv) they did not select the forum which passed the decree against them, (v) they did not voluntarily appear before the court, and (vi) they had not contracted to submit to the jurisdiction of the 579 by the Indian Code, was a different court from that which passed the decree under the Local Code, and was not the court. which passed the decree within the meaning of section 39. Sections 37 to 42 of the Code deal with execution of decree., passed by the courts governed by the Indian Code. The decree could not be executed under the provisions of section 43 of the Code at any time. After its adaptation in June 1950, section 43 applied to "a decree passed by a Civil Court in a Part B State". There were no Part B States at the time when the decree was passed and these words could not be read as "a decree passed by a civil court in what became a Part B State". Nor could the decree be executed under section 44 as that section was also inapplicable to this decree. Article 261 (3) which provides that the final judgments or orders of Civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory is inapplicable to the decree of the Gwalior court as the, provision is prospective and not retrospective. Per Sarkar and Das Gupta, JJ. Even in the decree passed by Gwalior Court was not a foreign decree the Allahabad Court had no power to execute it either under section 38 or under sections 43 or 44 of the Code of Civil Procedure. Section 38 provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. The Allahabad Court was not the court which passed the decree. Section 39 empowers the court which passed the decree to transfer it for execution to another court. The word "court" in the phrase "court which passed the decree" in section 39 contemplates only courts governed by the Indian Code of Civil Procedure. The Gwalior ,.Court which was governed by the Gwalior Code when it passed the decree had a distinct identity from the court at Gwalior after it came to be governed by the Indian Code. The Court which transferred the decree was accordingly not the court which passed the decree and the order of transfer was not a valid order. Section 43 of the Code provided for the execution of decrees passed by the Civil Courts in places where the Indian Code did not extend. The decree of the Gwalior Court did not fall within this section as it stood before the Constitution. A, After the adaptation in 1950 the section applied to a decree passed "by a Civil Court in a Part B State". These words could not be read as "by a civil court in an Indian State which has later been included in a Part B State". The Gwalior Court which passed the decree was not a Civil Court in a Part B State. 'Section 44 was equally inapplicable to the decree,. The section after adaptation in 1950 580 applied only to decrees of revenue courts. Before the adap tation it could apply only if there was a notification issued by the U. P. Government but no such notification was issued.

Pera Ram, Ganga Ram, Bhago and Kalu Ram were the tenants of agricultural land owned by Mrs. Raj Kanta, the appellant. The tenants made separate applications under section 18 of the Punjab Security of Land Tenures Act, 1953, on September 4, 1961 for purchasing the land held by them from the land owner. These applications were allowed by the Assistant Collector on October 31, 1961. Accordingly, the tenants deposited the first instalment in November 1961. Ultimately, however, the tenants did not pay the rent of the respective holdings for Kharif 1961. It is common ground that the last date by which the rent for Kharif 1961 was payable by the tenants to the land owner was January 15, 1962 and that the tenant did not pay the rent and did not show sufficient cause for the same. In view of the default, the land owner filed separate applications under section 9(1)(ii) of the Act on the ground that as the tenants had failed to pay the rent regularly without sufficient cause, they were entitled to be ejected by the land owner. The applications for ejectment were, however, dismissed but on appeal the Collector allowed the appeals by his order dated May 31, 1962. Second appeals preferred by the tenants in the ejectment proceedings were dismissed by an order dated 5 11 62 of the Commissioner and ultimately upheld by the Financial Commissioner by his Order dated December 21, 1962. Having failed before the Revenue courts, the tenants respondents filed a writ petition in the High Court which was heard by a single judge. But in the case of Kalu Ram the Financial Commissioner allowed the petition and rejected the prayer for his ejectment by the land owner as a result of which the land owner filed a writ petition in the High Court. All the petitions were consolidated and heard together, by the single Judge who allowed the writ petition of the tenants and quashed the order of the Financial Commissioner directing ejectment of the tenants. The writ petition of the land owner against Kalu Ram was, however, dismissed. Hence, the four appeals by the land owner appellant to this Court. Allowing the appeals, the Court ^ HELD: 1. The Punjab Security of Land Tenures Act 1953 is a piece of social legislation meant to ameliorate the lot of the tenants by conferring on them the status of a permanent tenancy or the rights to purchase the land on payment of instalments. At the same time, the landlords within a very limited sphere have been assured protection in respect of the rights which they possess in the land and have been given the right to eject the tenants on specified grounds which are contained in the various sub clauses of section 9 of the Act. Sub Clause (ii) is one such sub clause. This right was absolute and could not 1007 be curtailed by interpreting clause (ii) of section 9(1) of the Act through a process of twisting the law and doing violence to the language of the section, especially when it admits of no ambiguity. [1010 A C, 1011 A B] Bhagirath Ram Chand vs State of Punjab and Ors., A.I.R. 1954 Punjab 167: referred to. The word 'regular ' which is derived from the word 'regula ' which means 'rule ', means in a regular manner, methodically, in due order and postulates a state of symmetry, consistency and uniformity. In other words, 'regular ' means a consistent course of conduct without any break or breach. [1011 B, D, F & 1012 A] Arab Bank vs Ross, ; Hammond vs London County Council, [1931] Chancery 540; quoted with approval. Although the Act is heavily loaded in favour of the rights of the tenants so as to confer on them several important benefits and privileges yet as the Act is confiscatory in nature, so far as the landlord is concerned, it should be strictly construed within the limited sphere inasmuch as the landlord is conferred limited grounds on which ejectment is permissible under section 9 of the Act which appears to be a safety valve for the limited rights that are left with the landlord under the Act. In order therefore to advance the object of the Act so as to assure the limited protection to the landlord, the language employed in the various clauses of section 9 has to be construed so as to give real benefit to the landlord within the limited range that the section operates. [1012 D F] A correct interpretation of the plain language and the words and phrases used in clause (ii) of section 9(1) of the Act would be that the word 'regular ' connotes a consistent course of conduct without any break or breach and the 'regular payment of rent ' would mean that the rent should be paid punctually without any default or laxity. The Legislature clearly intended to use the word 'regularly ' to mean payment of rent in this manner. The Legislature never contemplated that a single default could be condoned. The word 'regularly ' has been used immediately after the words 'fails to pay the rent ' and is followed by the words "without sufficient cause". The Legislature clearly provided that if the tenant had committed a default whether one, two or more, the same could only be condoned if sufficient cause is shown and not otherwise. [1012 A D] 4. The words "failure to pay rent regularly without sufficient cause" in Section 9(1)(ii) of the Act cause postulate the following conditions: 1. there must be a failure on the part of the tenant to pay rent; 2. such failure must be to pay rent regularly, that is to say, the rent should be paid punctually consistently without any break or breach; 3. if there is any default ranging from one to several, the tenant has got to show sufficient cause if his case is to be taken out of the mischief of section 9(1)(ii). [1012 F H] 5. It is well settled that the Legislature does not waste words and every word that is used by it must be presumed to have some significance. The function of the Court is 'jus decere ' not 'jus dare '. The Court cannot, therefore, in 1008 order to promote its social philosophy turn and twist the plain and unambiguous language of the law so as to ascribe to it a meaning different from the one intended by the Legislature. The words 'without sufficient cause ' clearly indicate that in order to escape ejectment, the tenant must at least be regular in payment of the rent and if he wants to get rid of the consequences of his default, he must prove sufficient cause. Reading the entire sentence, the cumulative effect thereof unmistakably is that the Act includes even a single default and that is why instead of using the word 'default ', the word 'regularly has been employed which is immediately followed by the words 'without sufficient cause '. If the legislature intended that a single default would not entitle a landlord to eject the tenant under the Act, then it would have said so expressly either by way of an explanation or otherwise in clause (ii) of section 9(1) of the Act. [1013 C F] 6. While the Explanation to section 9(1) of the Act takes care to define as to when a tenant would be deemed to be in arrears and fixes a period of two months, indeed if the intention of the legislature was that a single default in payment of rent could be condoned, it should have included this incident also in the explanation. This provides therefore, the most important intrinsic circumstance to support the interpretation of clause (ii) of section 9(1) of the Act. [1014 A B]

The respondent by virtue of the sanad granted to his ancestors by the British Government, claimed, in respect of certain lands situated in village Shiramba Taluka Koregaon, District North Satara, compensation under section 6(2) of the Bombay Paragana and Kulkarni Watans (Abolition) Act. 1950, for the resumption of the lands by the appellant. The suit claim of Rs. 15,074 4 0 being "a sum equal to ten times the amount of such land revenue" was decreed by the trial court. On appeal by the State, the High Court affirmed the same. after construing the sanad granted by the British Government in favour of the respondents ' ancestors and other relevant records, as it was a watan of land revenue and not in respect of the soil. Dismissing the State 's appeal by special leave to this Court, ^ HELD: (1) The High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the watan held by the respondent at the date of the coming into force of the Act was a watan of land revenue the respondent was entitled to compensation in the sum of Rs. 15,074 4 0 under section 6(2) of the Bombay Paragana and Kulkarni Watan (Abolition) Act, 1950. [982B C] (2) The sanad undoubtedly used the words "lands" to describe the subject matter of the grant, but the word "land" is defined in Bombay Act II of 1863 [The Exemption From Land Revenue (No. 1 ) Act 1863], to include share of land revenue and this meaning would apply in the construction of the word "land" in the sanad since the sanad was apparently granted pursuant to the enquiry made under Bombay Act II of 1863. The description of the subject matter would not, therefore, necessarily indicate that it was a grant of the soil. In fact, this description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accompanied by words such as 'Darobast ' or 'Jal ', 'Taru ', 'Truna ', 'Kastha ' and 'Pashan '. [981F H] [Their lordships deprecated the litigious approach adopted by the State Government and observed "State Governments which have public accountability in respect of their actions should not lightly rush to this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense.]

Consequent upon the notification under the Estates Abolition Act, the impartible Estate of Venkatagiri vested in the Government and on claims made under section 41 of the Act, the tribunal determined advance compensation to the various persons interested. On appeal against the decision of the Tribunal it was contended, that (1) the impartible character of the Estate ceased when the estate vested in the Government; (2) the compensation did not bear the character of impartibility as it became the property of the joint family ; (3) section 45 was a law altering the rights of distribution of property among the members of a joint family and wag beyond the legislative competence of the State Legislature ; (4) the law was discriminatory ; (5) the appellants were not maintenance holders but creditors; (6) the amount of "Paishkush" payable to the Government ought not to have been deducted from the compensation in calculating the amounts payable to the appellants, as the holder of the estate alone was liable to pay it. Held, that the first question was raised directly in another proceeding and it was not necessary to decide it in these proceedings which were only in respect of advance compensation. Held, further, that in respect of such compensation the proportion of distribution could only be, in accordance with the provisions of sub section 2 of section 45 of the Act by which alone the appellants were entitled to claim advance compensation. 281 (2)that the legislation was not one in respect of wills, intestacy and succession, under Entry 7, List 3, but under Entry 9 of List 2 of the Seventh Schedule of the Constitution. (3)that in so far as the legislation came within article 31 (B) of the Constitution it was not open to attack as offending article 14 of the Constitution. (4)the appellants were maintenance holders howsoever they had been described in the earlier documents and that the earlier documents did not constitute them as creditors of the holders of the estate. (5)The distributable compensation could only be arrived at afterdeducting the liabilities mentioned in the proviso to section 41 (1) due from the estate to Government from the amount of compensation for the estate and that section 54 (A) (ii) required that half of those liabilities (including Peshkash) due to the Government be deducted from half the amount of compensation which was to be distributed under section 54A (i). Held, further, that in the other appeal proportion of 1/5th fixed by section 45 had been rightly applied and that the contention that the proportion should have been that which the allowances in the earlier documents bore to the total income in the year 1889, was not tenable.

K, H and M filed four suits each against four sets of defendants in respect of different sets of plots under section 175 U. P. Tenancy Act, 1939. Since similar points were involved the twelve suits were tried together and were disposed of by a common judgment decreeing them. Twelve decrees were prepared and the defendants preferred twelve appeals to the Additional Commissioner. Three appeals by one set of the defendants B were dismissed for default and the remaining nine were dismissed on merits. Against the dismissal of the nine appeals on merits the three sets of defendants preferred nine second appeals before the Board of Revenue but they were dismissed as barred by res judicata on May 7, 1954. In November, 1954, the appellants filed petitions for special leave before the Supreme Court and on April 18, 1955, special leave was granted. In July 1954, the villages in Which the lands in suit were situate came under consolidation operations under the U. P. Consolidation of Holdings Act, 1953, and the operations were completed by the publication of a notification 218 under section 52 of the Act on October 17, 1953. The appellants did not file any objections before the consolidation authorities. The respondent contended that in view of the consolidation operations the appeals before the Supreme Court had become infructuous. Held, that the appeals had not become infructuous. There was nothing in the U. P. Consolidation of Holdings Act, 1953, as it stood during the period the village in suit was under consolidation operations which could have in any way affected these appeals, during or after the consolidation operations. The subsequent Amending Acts did not affect the appeals as they were prospective in operation and applied only to cases where the consolidation operations were started after the Amending Acts had come into force. Held, further that the appeals before the Board of Revenue were not barred by resjudicata. It was essential for the bar of res judicata that the previous and judication must have been between the same parties. The three suits in which judgments had become final were against one B and not against any of the appellants . The matter in issue in those three suits was different from that in the other nine suits as each of the suits related to different plots. The common judgment was really twelve judgments in the twelve suits. Badri Narayan Singh vs Kamdeo Prasad Singh, (1962) 3. section C. R. 759 referred to.

The assessee (respondent) owner of an estate known as "Tekari Rai" executed an indenture of trust dated January 20, 1941 whereby the "Tekari Rai" and certain Zamindari properties owned by her were conveyed to certain named trustees to be held in trust, subject to conditions specified therein. This deed was created with a view to liquidate the debts of the Tekari Raj. The beneficiaries under the deed were the settlor, her husband and her five sons. This original deed was modified by a deed of rectification dated December 22, 1941. It was provided in the original cl. 43 of the deed of trust dated January 20, 1941, that the settlor may at any time during her life re voke or vary either wholly or partly the trust or any provi sions of the deed but not before the payment and discharge of certain debts and liabilities. Clause 43 of the original deed was subsequently modified by the 45th clause which was added by the deed of amendment dated January 12, 1942. By cl. 45 of the deed of amendment the right of revocation was not exercisable till the Thica leases in favour of the Maharajadhiraj of Darbhanga and Capt. Maharaj Kumar Gopal Saran Narain Singh remained good and effective. It was the common ground that the lease in favour of the Maharajadhiraj of Darbhanga was to enure till 1965 and the lease in favour of Capt. Maharaj Kumar Gopal Saran Narain Singh till 1954. In assessing the assessee to income tax for the year 1947 48, the Income tax Officer included in her total income the income of the trust. The matter went up to the High Court and the High Court set aside the assessment order passed by the Income tax Officer. The High Court held that a,, the trust was not revocable for a period of six years, the income received by the beneficiaries (other than the assessee) was not liable to be taxed as the assessee 's income till the power to revoke arose in her favour. The appellant obtained special leave against the order passed by the High Court. Hence the appeal. The principal question for consideration before this Court was whether the income received by the beneficiaries other than the assessee could be included in the total income of the assessee under section 16(l)(c) of the Act. Held:(i) In terms the third proviso to section 16 (l)(c) of the Income tax Act excludes from the operation of the principal clause that part of the income alone which arises to any person under a, deed of settlement: it does not remove from its protection the entire deed of trust, if part of the income is not covered by the conditions prescribed or if the settlor has in a part of the income interest direct or indirect. The third proviso does not operate to exclude the income which the settlor receives as a beneficiary from liability to tax. 921 (ii)The third proviso to section 16 (l)(c) of the Act does ope rate in respect of settlements, dispositions, or transfers which are by the first proviso revocable for the purpose of that clause. (iii) Two conditions are necessary for the application of the 3rd proviso to section 16 (l)(c) of the Income tax Act: (i) that the trust should not be revocable for a period exceeding 6 years or during the life time of the beneficiary and (ii) the settlor or disponer should have no direct or indirect benefit from the income given to the beneficiary. The effect of the two conditions is that, that part of the income which arises to any person by virtue of the settlement which is not revocable for a period of six years or which is not revocable during the life time of the beneficiary will not be included in the settlor 's income, provided that from the income of such person the settlor derives no benefit direct or indirect. On the construction of the deed of trust it was held that the deed was not revocable within six years provided by section 16 (1)(c) of the Act. Ramji Keshavji vs Commissioner of Income tax, Bombay, , relied on. (iv)On the facts of this case it was held that by virtue of the third proviso to section 16 (l) (c) of the Act the income re ceived by the beneficiaries under the deed of trust other than the assessee could not until the power of revocation arose to the assessee, be deemed to be the income of the assessee for the purpose of assessment to income tax.

The appellant company filed a suit against the respondents in the court of the Senior Subordinate Judge, Gurgaon, for the specific performance of an agreement for the purchase of ' certain land by the company from the respondents. Part of the land in question became the subject of proceedings under the Land Acquisition Act, 1894, and dispute relating to compensation was referred to the Court of the District Judge. The court fixed the compensation at over Rs. 2 Iakhs. A dispute as to apportionment of the compensation was also. referred under section ' 30 of the Land Acquisition Act to the court but the proceedings were stayed by the Additional District Judge, pending decision of the suit for specific performance by the Senior Subordinate Judge. The suit was dismissed and thereupon the respondents applied to the Additional District Judge for continuation of proceedings under section 30 and for payment of compensation to them. The appellant company resisted the application on the ground that it had filed an appeal in the High Court against the decree of the Senior Subordinate Judge. The Additional District Judge after hearing both parties stayed the proceedings under section 30 pending disposal of the company 's appeal by the High Court. On a revision application under section 115 C.P.C. filed by the respondents, the High Court ordered on March 18, 1969 that a sum of not more than Rs. 1,78,000 out of the compensation for the acquired land be paid to the respondents who must undertake not to sell the rest of the land during the pendency of the appeal. The Additional District Judge after hearing the parties judicially interpreted the order to. mean that Rs. 1,78.000 were to be paid to the respondents after the conclusion of the proceedings under ' section 30. The respondents again moved the High Court with an application under section 151/141 C.P.C. for a clarification of its earlier order whereupon by order dated May 8, 1969 the High Court ordered immediate payment. The company challenged the High Court 's orders dated March 18, 1969 and May 8, 1969 in an appeal before this Court. It was contended on its behalf that in making its first order the High Court exceeded its jurisdiction u/s 115 C.P.C. and in making the clarificatory order ex parte it violated the rules of natural justice. HELD: (i) The position is firmly established that while exercising its jurisdiction under section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) o.f this section on their plain reading quite clearly did not cover the present case because it had not been shown that the learned Additional Sessions Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) of the section also did not apply 369 to the present case. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law of to material defects of procedure. affecting the ultimate decision, and not to errors of either fact or of law, after the prescribed procedure has been complied with. [375 D G] The High Court had not adverted to the limitation imposed on its power under section 115 of the Code and had treated the revision as if it was an appeal. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal could hardly justify interference on revision under section 115 of the Code when there was no illegality or material irregularity committed by the Additional Sessions Judge in his manner of dealing with the question. The order of the High Court dated March 18, 1964 had therefore to be set aside. [375 F H] Rajah Amir Hassan Khan vs Sheo Baksh Singh, I I Indian Appeals 237: Balakrishna Udayar vs Vasudeva Aiyar, 44 Indian Appeals 261; Keshav Deo vs Radha Kissan. ; applied. (ii) The ex parte order dated May 8 1969 was equally difficult to sustain. The High Court had proceeded to make an order virtually and in effect reversing the judicial order made by the learned Additional Judge in favour of the appellant. This could, more appropriately be done only on appeal or revision after notice to the party affected and not on an application under sections 151/141 C.P.C. Such an application in the. circumstances was misconceifed. [376 C, F]

minal Appeal No. 156 of 1960. Appeal by special leave from the judgment and order dated August 1, 1958, of the Rajasthan High Court, at Jodhpur in Criminal Appeal Nos. 98 and 155 of 1957 and Criminal Revision No. 116 of 1957. Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellant. H. J. Umrigar, H. R. Khanna, Bipin Behari Lal, R. H. Dhebar and D. Gupta, for the respondent. 663 1961. March 30. The Judgment of the Court was delivered by SUBBA RAO, J. This is an appeal by special leave against the judgment of the High Court of Judicature for Rajasthan dated August 1, 1958, confirming the Judgment of the Additional Sessions Judge, Churu, dated May 3, 1957, in so far as he convicted the appellant under sections 347, 365 and 386, Indian Penal Code, and setting aside his order acquitting the appellant under section 458, Indian Penal Code, and convicting the appellant under section 452, Indian Penal Code. The learned Additional Sessions Judge sentenced the appellant for the offences under sections 347, 365 and 386, Indian Penal Code, to undergo rigorous imprisonment for I year, 2 years and 3 1/2 years respectively. Tile High Court enhanced the sentences in respect of the offences under so. 347 and 386, Indian Penal Code, to 3 years and 8 years respectively, and also imposed a fine of Rs. 20,000 on the appellant; the sentence in regard to the offence under section 365, Indian Penal Code, was confirmed. The High Court further found that the appellant was guilty under section 352, Indian Penal Code, also and for that offence it sentenced him to undergo rigorous imprisonment for 7 years. At the outset it would be convenient to state briefly the case of the prosecution. One Kashiram, a prosperous businessman, was residing at Sidhmugh. His only son Suraj Bhan was living at Rajgarh where lie was carrying on an independent business of his own. On November 12,1954, when Suraj Bhan was at his desk in his house, somebody made an enquiry whether one Rameshwar was there, to which Suraj Bhan replied in the negative. A few minutes thereafter, two men with masks entered the room and one of them was armed with a revolver. The said two persons threatened to shoot Suraj Bhan if he made any noise and then took him outside the house where two camels were kept waiting attended by two other persons similarly masked. After covering the face of Suraj Bhan by tying a cloth round his neck, he was made to mount one of the camels. The two persons who pulled Suraj Bhan out of his house also 664 mounted the same camel, one in front of Suraj Bhan and the other behind him. After firing some shots in the air, presumably to prevent pursuit, the said per sons, along with Suraj Bhan, left the place. After riding for 3 or 4 hours, the camels were made to stop on a railway line, the said persons got down from the camel, Suraj Bhan was also made to get down, and all of them went along the railway line for 3 or 4 furlongs. Thereafter, Suraj Bhan was taken to the house of Dee Chand, the appellant, in village Kalari and was kept there in confinement in a small room for 17 days. During the entire period he was kept blindfolded. Two or three days after the abduction, Suraj Bhan was made to write three letters to his father and put down his father 's address on the envelopes. He was made to write these letters under the cover of a blanket after his bandage was removed temporarily. In the first letter he was made to write that if his father reported the matter to the police, he would not see his son again in the second letter, he was made to inform his father that in view of the attempts made by his father to trace him, his abductors had made up their minds not to release him, but in view of his entreaties they had agreed to release him on payment of a ransom of Rs. 60,000; and in the third letter, he was made to write that the money should be handed over to the bearer of the letter and that he would be released on such payment. After the receipt of the first two letters by Kashi Ram, the abductors entered on the second stage of negotiations. Meanwhile, to facilitate the smooth conduct of the negotiations, on November 29, 1954, Suraj Bhan was removed to the house of one Lachhman and was confined there till his release. Kashi Ram has a son in law by name Shiv Bhagwan, the son of one Durga Parshad. Dhannaram and Shiv Bhagwan knew each other. Dhannaram offered to help Kashi Ram to get the release of his son. Dhannaram gave a letter addressed to Deep Chand to Durga Parshad wherein Deep Chand was requested to render his help in the matter of the release of Suraj Blian. On the basis of the letter, Durga Parshad contacted Deep Chand, who promised 665 to do his best in the matter. After further talks, Dhannaram met Shiv Bhagwan and told him that Suraj Bhan was alive but a large sum would be required as ransom to get his release. He also warned him not to divulge the secret, for, if he did so, not only the life of Suraj Bhan but also of other relations would be in danger. He demanded Rs. 70,000 as ransom, but after some higgling it was fixed at Rs. 50,000. The third letter written by Suraj Bhan at the instance of Deep Chand was shown to Shiv Bhagwan and to his father Durga Parshad to assure them that Suraj Bhan was alive. After satisfying themselves ' of the bona fides of the negotiations conducted by Dhannaram, Shiv Bhagwan and Durga Parshad went to the house of Dhannaram where they found Deep Chand. The sum of Rs. 50,000 was paid to Dhannaram and Deep Chand; and both of them counted the money. The money was paid on December 17,1954, and Suraj Bhan was released on December 20, 1954. Five persons, namely, Deep Chand, Sisram, Jiwan Ram, Dhannaram and Ramji Lal, were prosecuted in the Sessions Court for the aforesaid offences. The learned Sessions Judge acquitted Ramji Lal, Dhannaram and Jiwan Ram, and convicted Sisram under sections 347 and 365, Indian Penal Code, and Deep Chand as aforesaid. Nothing more need be said about the conviction of Sisram, as on appeal he was acquitted by the High Court and no appeal was preferred by the State against his acquittal. The learned Sessions Judge, on a consideration of the entire evidence placed before him, held that there was overwhelming evidence to show that Deep Chand detained Suraj Bhan in his house for sometime and thereafter in Lachhman 's house and released him on payment of a ransom. But he held that there was not sufficient evidence to find definitely that Deep Chand participated in the abduction of Suraj Bhan on November 12, 1954, from the latter 's house. On these findings, he convicted Deep Chand under sections 347, 365 and 386, Indian Penal Code. Deep Chand preferred an appeal against his conviction, and the State filed an appeal 84 666 against the judgment of the learned Sessions Judge in so far as he acquitted Deep Chand of the offence under section 458, Indian Penal Code. The State also preferred a revision for enhancing the sentences passed on Deep Chand. All the matters were heard together by the High Court and, on a resurvey of the entire evidence, it agreed with the Sessions Judge that Suraj Bhan was confined in the house of Deep Chand and later on in the house of Lachhman and that he extorted money from Kashi Ram by putting him under fear of death of his son, Suraj Bhan. Disagreeing with the Sessions Judge, the High Court further held that it had been established on the evidence that Deep Chand was one of the persons who abducted Suraj Bhan from his house on November 12, 1954. In the result, the High Court convicted the appellant not only under sections 347, 365 and 386, Indian Penal Code, but also under section 452 thereof. In the matter of enhancement of the sentences, it was of the view that the case deserved an exemplary punishment and, therefore it enhanced the sentences as aforesaid. Deep Chand preferred the present appeal by special leave. Learned counsel for the appellant in an attempt to dislodge the findings arrived at by the High Court raised the following points before us: (1) The High Court erred in relying upon the statement made by Suraj Bhan before the Magistrate at the time of verification proceedings, though it was not recorded in compliance with the provisions of section 164 of the Code of Criminal Procedure, and if the said statement and the verification proceedings based on that statement were excluded, it is not possible to predicate that the High Court would have accepted the evidence of Suraj Bhan in respect of his version that he was confined in the house of Deep Chand. (2) The High Court also went wrong in upholding the privilege claimed by Shri section Gajender Singh, the District Magistrate, in respect of important questions put to him in the cross examination; and if the claim of privilege had not been upheld, answers would have been elicited from him which might have established that Suraj Bhan was lying in the witness stand and that his previous 667 statements represented the truth. (3) The High Court erred also in setting aside the order acquitting the appellant under section 458, Indian Penal Code, without sufficient and compelling reasons and in convicting him under section 452, Indian Penal Code. To appreciate the said questions, it is necessary to notice briefly the facts found by the courts below. On the first part of the episode, that is, the abduction of Suraj Bhan, the High Court accepted the evidence of Suraj Bhan. Suraj Bhan stated in his evidence that when he was writing his accounts at about 7 15 p.m. in his house on November 12, 1954, two persons with their faces covered with masks entered his house and by threatening to shoot him, forcibly took him away on one of the two camels brought by them. He further alleged that he recognized one of the abductors who threatened him with a revolver as Deep Chand, as he was a local Congressman known to Suraj Bhan from before. This identification of Deep Chand as one of the accused was not accepted by the Sessions Judge, but the High Court accepted it for the reason given in its judgment. As regards the second stage, namely, the confinement of Suraj Bhan in Deep Chand 's house, the High Court accepted the evidence of Suraj Bhan identifying the said house by giving particulars thereof. Suraj Bhan 's version was as follows: During his confinement in the house, he used to loosen the bandage and see through the chinks in the wall of the room in which he was interned. He was in that house for 17 days and he had heard the voice of Deep Chand whom he knew before. During his confinement there, he also heard a lady enquiring whether Deep Chand had gone out and another lady answering the query. He had also given in detail the landmarks he gathered in the course of his journey from his house to the house of Deep Chand which substantially tallied with those leading to Deep Chand 's house. This evidence of Suraj Bhan was corroborated by the evidence of Devisingh, the Magistrate, Randhawa and Ratan Singh. The Magistrate took Suraj Bhan along with him to the house of Deep Chand. He inspected the house and got the plan, exhibit P 28, prepared under his 668 supervision by P.W. 25, the Reserve Inspector, Churu. He also recorded the memorandum, exhibit P 27, in which his observations and the statements made by Suraj Bhan were noted down. ' The Magistrate gave evidence as P.W. 21 and in his evidence he described the building of Deep Chand and also proved the memorandum prepared by him. His evidence is further corroborated by the evidence of two witnesses, P.W. 25, Randhawa, and P.W. 39. The memorandum prepared by the Magistrate, his evidence and the evidence of P.Ws. 25 and 39 establish that there used to be chinks in the wall through which Suraj Bhan used to see a tree and that these chinks had been recently closed "by pointing the room from inside" and that two new rooms were constructed towards the north of the house. P.W. 27 deposed that these two new constructions were made about the beginning of the year 1955. This evidence, which was accepted by the courts below, supported the evidence of Suraj Bhan in regard to the condition of the building at the time he was interned therein. On the basis of the said evidence, both the courts concurrently held that the house in which Suraj Bhan was interned for 17 days was the house of Deep Chand. Now coming to the third stage of the journey, that is, the confinement of Suraj Bhan in Lachhman 's house, Lachhman, as P.W. 3, deposed that on a request made by Jiwan Ram on behalf of Deep Chand he agreed to keep a lady whom Jiwan Ram and Deep Chand would bring to his house for a few days and on the next day, Deep Chand and Sisram brought in the midnight Suraj Bhan instead of a lady. He also described in detail the instructions given to him by Deep Chand and the manner in which he attended on Suraj Bhan, during his stay of 21 days in his house. This house was also identified by Suraj Bhan. Suraj Bhan further gave some details of the surroundings of the house and also the name of the son of Lachhman. This evidence proves that Suraj Bhan was shifted by Deep Chand to the house of Lachhman on the eve of the negotiations. The High Court held against the appellant, even without calling in aid the evidence of Lachhman, on the basis of other facts. 669 Then there is the evidence of Shiv Bhagwan and Durga Parshad, who actually paid the ransom. These witnesses spoke about the negotiations and also the actual payment of Rs. 50,000 to Deep Chand. This evidence was again accepted by both the courts. Then there was the evidence of Lachi Ram and Amar Singh, who carried on negotiations with Deep Chand for the return of the ransom in the presence of Chowdhuri Kumbbaram, the then Home Minister of Rajasthan. This evidence was also accepted by both the courts. The aforesaid evidence, along with other circumstances, according to the High Court, brought home the guilt to the appellant on all charges. It is the usual practice of this Court to accept the concurrent findings of fact arrived at by the courts below and there are no exceptional circumstances in this case to depart from the usual practice. We shall now proceed to consider the arguments of learned counsel for the appellant seriatim. His first criticism is directed against the verification proceedings conducted by the Magistrate at the house of Deep Chand. On the basis of the statement made by Suraj Bhan giving the particulars of the building, the Magistrate got a plan, exhibit P 28, prepared and also a memorandum, exhibit P 27. He also gave evidence in the court. It is said that the High Court went wrong in acting upon the said memorandum by the Magistrate. The relevant provisions are section 164 of the Code of Criminal Procedure and section 9 of the Evidence Act. The material part of section 164 of the Code of Criminal Procedure reads: "(1) Any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government may, if he is not a police officer record any statement or confession made to him in the course of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial. (2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording 670 evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. " Section 9 of the Evidence Act says that facts which. establish the identity of any thing or person whose identity is relevant, are relevant in so far as they are necessary for that purpose. These two sections deal with different situations: section 164 of the Code of Criminal Procedure prescribes a procedure for the Magistrate recording statements made by a person during investigation or before trial; section 9 of the Evidence Act, on the other hand, makes certain facts which establish the identity of a thing as relevant evidence for the purpose of identifying that thing. If a statement of a witness recorded by a Magistrate in derogation of the provisions of section 164 will go in as evidence under section 9 of the Evidence Act, the object of section 164 of the said Code will be defeated. It is, therefore, necessary to resort to the rule of harmonious construction so as to give full effect to both the provisions. If a Magistrate speaks to facts which establish the identity of any thing, the said facts would be relevant within the meaning of s, 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of section 164 of the Code of Criminal Procedure, such part of the evidence, though it may be relevant within the meaning of section 9 of the Evidence, ' Act, will have to be excluded . By such a construction of the provisions a satisfactory solution could be evolved. The decision of the Judicial Committee in Nazir Ahmad vs The King Emperor (1) is rather instructive. There, a Magistrate gave evidence in court on the strength of a confession made to him which was not recorded under section 164 of the Code of Criminal Procedure. The question was whether the said evidence was admissible against the accused. The Judicial Committee quoted and approved the well recognized rule that (1) Lahore 629. 671 where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all, and other methods of performance are necessarily forbidden. Adverting to section 164 of the Code of Criminal Procedure, the Judicial Committee proceeded to state at p. 642 thus: "It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by sections 164 and 364 would be of such trifling value as to be almost idle." The Judicial Committee also stated the policy underlying the section thus at p. 643: "In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever. " These are weighty observations and we respectfully adopt them. But this decision does not preclude, a Magistrate from deposing to relevant facts if no statute precludes him from doing so either expressly or impliedly. Neither the Evidence Act nor the Code of Criminal Procedure prohibits a, Magistrate from deposing to relevant facts within the meaning of section 9 of the Evidence Act. In Legal Remembrancer vs Lalit Mohan Singh Roy (1), a Magistrate sought to give evidence of an unrecorded statement made to him by the accused. The court rightly held that it was not permissible. The same remarks we made in regard to the decision of the Privy Council would apply to this case. In this context a few relevant decisions bearing on the admissibility in evidence of verification proceedings could conveniently be noticed. In Amiruddin Ahmed vs Emperor (2), a Magistrate conducted verification proceedings with a view to test the truth of a confession made by the accused. Teunon, J., made the following observations at p. 564: "They are undertaken, it would seem, with a view (1) Cal. 167. (2) Cal 557. 672 to testing the truth of a confession and to obtain evidence either corroborating the confession or indicating its falsity. In so far at least as such evidence may be obtained, for instance, in ascertaining that the prisoner is familiar with, or wholly ignorant of, the localities of which he has spoken, or in furnishing clues to further enquiry, such proceedings may be useful. In connection with such proceeding the main concern of the Court would seem to be to ensure that evidence not strictly admissible is not admitted. In the present case that precaution has not been taken: for we find that the verifying Magistrate has been permitted to speak to statements said to have been made to him in the course of his proceedings. Such additional statements being statements made in the course of an investigation, when not recorded in the manner provided in section 164 of the Code of Criminal Procedure, are, in my opinion, inadmissible." The other learned Judge, Shamsul Huda, J., made the following statement at p. 572: "I think, 'verification ' under conditions such as these lends itself to very great abuses and should be avoided. There is perhaps nothing objectionable in a verification made independently of the confessing accused and unaided by him". We are not concerned in this case with the propriety of verification proceedings in regard to a confession made by an accused. This decision is an authority for the position that the evidence given by a Magistrate on the basis of the verification proceedings conducted by him is relevant evidence ' though he could not speak of statements made by the accused or a witness recorded by him in contravention of section 164 of the Code of Criminal Procedure. The same distinction was pointed out by the Special Bench of the Calcutta High Court in Jitendra Nath vs Emperor (1). In that case, the learned Judges observed at p. 110 thus: "In one case there was a verification report so far as the confessional statement of an accused person was concerned, which it would appear was fairly (1) A.I.R. 1937 Cal. 673 supported by other evidence bearing on matters covered by the said report by the Magistrate by whom it was recorded, and which cannot be ruled out on the ground that it was inadmissible in evidence, seeing that the Magistrate himself was examined as a witness in the case, and spoke to the contents of the report made by him, which is placed on record as evidence, in support of the confessional statement of Sudhir Bbattacharjya. " Then the learned Judges proceeded to state, "Statements made by the accused to the verifying Magistrates in the course of the proceedings, if they are not recorded in the manner provided in section 164, Criminal Procedure Code, are however inadmissible. " It is, therefore, clear that the memorandum prepared by the Magistrate describing the present condition of the house and the evidence given by him on the basis of that memorandum would be relevant evidence under section 9 of the Evidence Act; but *.he statements made by Suraj Bhan to the Magistrate said to be not recorded in the manner prescribed by section 164 of the Code of Criminal Procedure would be inadmissible. We are proceeding on the basis that the said statements were not recorded in compliance with the provisions of section 164 of the Code of Criminal Procedure and we should not be understood to have expressed any opinion on the question whether they have been so recorded or not, or whether mere irregularities, if any, committed in the manner of recording such statements by Magistrates under section 164 of the Code of Criminal Procedure would make such statements inadmissible. That apart, exhibit P 27 and the evidence given by the Magis trate were only used by the court as corroborating the evidence of Suraj Bhan in regard to his evidence describing the house of Deep Chand. Apart from the Magistrate 's evidence there is also other. evidence in the case in regard to the original condition of the building and the subsequent additional structures put up by Deep Chand. As the High Court accepted that evidence, even if the evidence of the Magistrate was excluded it would not have made any difference in the result. We, therefore, hold that the evidence of the 85 674 Magistrate, excluding that part pertaining to the statements made to him by Suraj Bhan, was relevant evidence in the case. The second contention turns upon the claim of privilege raised by witness Gajender Singh and allowed by the learned Sessions Judge. Some of the relevant facts may now be stated. Suraj Bhan was released on December 20, 1954. On February 14, 1955, one Shiv Dutt made a statement before the District Magistrate, section Gajendar Singh, and the said Magistrate recorded the same under section 164 of the Code of Criminal Procedure. In that statement Shiv Dutt stated that Suraj Bhan told him the present version of the prosecution. On March 12, 1955, Suraj Bhan was examined by the police and he made a statement (exhibit D 8). Therein he gave an altogether different version contradicting the statement of Shiv Dutt, On April 29, 1955, Suraj Bhan filed an affidavit, exhibit P 5, in the: Court of the Additional District Magistrate, Ganganagar, stating that Deep Chand had nothing to do with the offence ' On May 5, 1955, the prosecution got five copies of the said affidavit made and attested. On May 23, 1956, for the first time, Suraj Bhan implicated Deep Chand in the crime. Regarding the question whether Shiv Dutt made such a statement on February 14,1955, Gajender Singh and Shiv Dutt were examined and both of them spoke to that fact. The argument is that important questions put to Gajender Singh were illegally disallowed and if they had not been disallowed the accused would have been in a position to establish that Gajender Singh was not speaking the truth and that if that evidence was eliminated, the High Court might not have accepted the reasons advanced by the prosecution explaining away the inconsistent versions given by Suraj Bhan. At the outset it may be stated that it is not quite correct to state that the High Court explained away the earlier versions given by Suraj Bhan on the basis of the evidence given by Gajender Singh. On the other hand, both the courts have given convincing reason why Suraj Bhan and the members of his family did not come forward immediately with the true version of the incident; for, at one stage, they were anxious to 675 save the life of Suraj Bhan and at a later stage they were equally anxious to get back the money paid as ransom by Suraj Bhan 's father. The courts have also accepted the evidence of Shiv Dutt. That apart, the question of privilege was not raised before the High Court. In the circumstances, we would not be justified in allowing the appellant to raise before us the question of privilege based upon ' the disallowance of a few questions put to one of the witnesses. This objection is, therefore, rejected. The third argument has no merits either. The High Court considered, and in our view rightly that there was no reason to disbelieve the evidence of Suraj Bhan when he identified Deep Chand at the time of abduction. Suraj Bhan knew the accused before and he also knew his stature and voice. Suraj Bhan was in the company of Deep Chand from the time of his abduction till he was finally released. When Suraj Bhan, in the circumstances, stated that he identified Deep Chand, there is no valid reason to reject his evidence. In the circumstances, the High Court was quite justified in setting aside the order of acquittal under section 458, Indian Penal Code, and convicting him for the offence under section 452 there of Finally learned counsel for the appellant made an impassioned appeal on the question of sentence. He said that the learned Sessions Judge had awarded a reasonable sentence to the accused and the High Court was not justified in enhancing the said sentence. The Sessions Judge held that the accused was guilty of a grave and heinous crime and we are surprised that he should have sentenced the accused to undergo rigorous imprisonment for one year under section 347, 2 years under section 365 and 3 1/2 years under section 386, Indian Penal Code, and direct the sentences to run concurrently. When the Sessions Judge gave such a disproportionately lenient sentences, it was the duty of the High Court to rectify such an obvious error. In our view, the learned Judges of the High Court rightly enhanced the sentence imposed on the appellant. In the result, the appeal fails and is dismissed. Appeal dismissed.

In a verification proceeding held by him the Magistrate. prepared a memorandum recording his own observations as also the statements made to him by a prosecution witness but not in the manner prescribed by section 164 Of the Code of Criminal Procedure. He proved the memorandum in court and gave his evidence. It was contended that the High Court was wrong in acting upon the said memorandum. Held, that although section 164 Of the Code of Criminal Procedure and section 9 of the deal with two different matters, they must be read together and harmoniously con strued so as to give full effect to both of them. So construed, there could be no doubt that the evidence of the Magistrate himself on the basis of the memorandum would be relevant under section 9 of the Evidence Act and as such admissible in evidence but the statements made to him by the prosecution witness, having been recorded in contravention of the mandatory provisions of section 164 Of the Code, must be excluded as inadmissible ' on evidence. Nazir Ahmad vs The King Emperor, Lah. 620, Legal Remembrancer vs Lalit Mohan Singh Roy, (192I) I.L.R. considered. Amiruddin Ahmed vs Emperor, Cal. 557, and jitendra Nath vs Emperor, A.I.R. 1937 Cal. 99, referred to.

The appellant was tried and convicted by the Special Judge for an offence under section 409 I.P.C. and sentenced to rigorous imprisonment for two years and to pay a fine of ' Rs. 2,000. On appeal, the High Court altered his conviction from an offence under section 409 to one under section 420 I.P.C. for cheating the employees of the State Bank, by representing a, bill as a genuine bill drawn by the Sub Divisional Health Officer, and thereby dishonestly inducing the Bank 's Staff to make over the sum of Rs. 1,763 6 0 to him and sentenced him to rigorous imprisonment for one year and to a fine of Rs. 2,000. On appeal by certificate the appellant mainly contended (i) that a case under section 420 I.P.C. could not be allotted for trial to a Special Court by the Government when such an offence was not committed by a public servant while purport ing to act as such public servant: (ii) that the Special Court could not take recourse to the provision of section 237 Code of Criminal Procedure and if it could, the requirements of section 237 Code of Criminal Procedure were not satisfied and consequently the High Court could not have altered the conviction from section 409 I.P.C. to one under section 420 and (iii) that the accused had been prejudiced ' on account of the absence of a charge under section 420 I.P.C. Held (i) that on the facts proved it must be held that the offence under section 420 committed by the appellant would be committed by him as a public servant purporting to act as such, and that a case involving this offence also could have been allotted to the Special Court by the Government for trial. The Special Court was, therefore, competent to try the accused for this offence if the facts proved established it, Besides, the appellant could be tried by the Special Court for this offence in view of the proviso to section 4 of the West Bengal Criminal Law Amendment Act. Bhajahari Mondal vs State of West Bengal, [1959] S.C.R. 1276, distinguished. (ii) that at the trial of the appellant for an offence under section 409 I.P.C., in this case, the appellant could have also been charged for an offence under section 420 I.P.C., in view of section 236 of ' the Code of Criminal Procedure. 71 In view of the proviso to sub section (1) of section 4 of the Act, the Special Court could have tried the appellant for the offence under section 420 I.P.C. It did not actually try him for that offence. It was however, open to it and to the appellate court to convict him of the offence under section 420 I.P.C., when trying for an offence under section 409 I.P.C., in view of section 237 of the Code of Criminal Procedure. (iii) that in the present case the appellant could not be said to be prejudiced in his conviction under section 420 I.P.C. on account of the non framing of the charge, and consequent non trial, under section 420 I.P.C. In fact, no question of irregularity in the trial arises. The framing of the charge under section 420 I.P.C. was not essential and section 237 Code of Criminal Procedure itself justifies his conviction of the offence under section 420 if that be proved on the findings on the record. Case Law discussed.

The respondent 's appeal against an order of assessment was rejected by the Appellate Assistant Commissioner and he, thereafter appealed to the Appellate Tribunal. The Tribunal, after having granted some adjournments, dismissed the appeal for default in appearance On a day fixed for the hearing, purporting to do so under rule 24 of the Appellate Tribunal Rules, 1946. The High Court directed the Tribunal to refer two questions to itself one relating to the merits and the other to the effect whether rule 24 of the Appellate Tribunal Rules, 1946, in so far as it enables the Tribunal to dismiss an appeal in default in appearance, is ultra vires. A special bench of the High Court took the view that under section 3 3 (4) the Tribunal was bound to dispose of the appeal on the merits, whether the appellant was present or not. On appeal to this Court, HELD : It follows from the language of section 33(4) and in particular the use of the word "thereon" that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned had failed to appear. [824 C D] The provisions contained in section 66 about making a 'reference on questions of law to the High Court would be rendered nugatory if a power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default, without making an order thereon in accordance with section 33(4). So far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed a proper order under section 33(4). [824 E H] Rule 24 clearly comes into conflict with section 33(4) and in the event ,of repugnancy between the substantive provisions of the Act and a rule, it is the rule which must give way to the provisions of the Act. [825 H] Shri Bhagwan Radha Kishen vs Commissioner of Income tax, U.P. ; Ruvula Subba Rao & Ors. vs Commissioner of Income tax Madras, ; Mangat Ram Kuthiala & Ors. vs Commissioner of Income tax, Punjab, ; Hukumchand Mills Ltd. vs Commissioner of Income tax, Central Bombay, ; Commissioner of Income 819 tax Madras vs Mtt. section Ar. Arunachalam Chettiar, and Commissioner of Income tax, Bombay vs Scindia Stearn Navigation Co. Ltd. ; , referred to.

The appellant was the Chief Minister of Maharashtra between June 9, 1980 and January 12, 1982, when he resigned that office in deference to the judgment of High Court in a writ petition filed against him, but continued as an MLA. On August 9, 1982, respondent No. 1, a member of a political party filed a complaint before a Special Judge against the appellant and others for offences under sections 161 and 165 of the Indian Penal Code and section 5 of the Criminal Law Amendment Act, 1952 and also under sections 384 and 420 read with sections 109 and 120B of the Indian Penal Code. The Special Judge issued process to the appellant. Later, the Special Judge over ruled the objection of the appellant to take cognizance of the offences on a private complaint, and to issue process, in the absence of notification under section 7(2) of the Criminal Law Amendment Act, 1952, specifying as to which of the three special Judges of the area should try such cases. Against this, the appellant filed a revision application in the High Court, which dismissed it subsequently. The appellant 's Special Leave Petition against this was dismissed by the Supreme Court which held that the complaint filed by respondent No. 1 was clearly maintainable and cognizance was properly taken of it. During the pendency of the revision application in the High Court, the State Government notified the Special Judge to try the off 3 ences specified under section 6(1) of the Act and appointed another Special Judge, who discharged the appellant, holding that a member of the Legislative Assembly was a public servant and there was no valid sanction for prosecuting the appellant. Against this order of discharge. respondent No. 1 filed a Criminal Revision Application in the High Court, which was subsequently withdrawn to this Court. On an appeal filed by respondent No. 1 directly under Article 136 of the Constitution against the order of discharge, the Supreme Court held on 16.2.1984, that a member of the Legislative Assembly was not a public servant, and set aside the order of the Special judge. The Court observed that though nearly 2 1/2 years had rolled by since prosecution against the accused, who was Chief Minister of a State, was launched and his character and integrity came under cloud, the case had not moved an inch further and that an expeditious trial was primarily in the interest of the accused and mandate of Article 21. It further observed that expeditious disposal of a criminal case was in the interest of both the prosecution and the accused. It, therefore, suo motu withdrew this special case and another one filed against the appellant by another person and transferred them to the High Court, with the request to the Chief Justice to assign these two cases to a sitting Judge of the High Court, who should proceed to expeditiously dispose of the cases, preferably by holding trial from day to day. Pursuant to the directions of this Court dated February 16, 1984 the Chief Justice of the High Court assigned the cases to one of the Judges of that Court. The appellant appeared before him and raised an objection that the case could be tried only by a Special Judge appointed by the Government under the 1952 Act. The Judge rejected this and other objections holding that he was bound by the order of the Supreme Court . Special Leave Petitions as well as a writ petition filed by the appellant against the aforesaid decision were dismissed by this Court on April 17, 1984, holding that the Judge was perfectly justified, and indeed it was his duty to follow the decision of this Court which was binding on him. It also observed that the writ petition challenging the validity of the order and judgment of this Court as nullity or otherwise could not be entertained, and that the dismissal of the writ petition would not prejudice the petitioner 's right to approach this Court, with an appropriate review petition or any other application, which he may be entitled to in law. 4 Thereafter, the cases were transferred to another Special Judge, who framed 21 charges and declined to frame 22 other charges proposed by respondent No. 1. This Court allowed respondent No.1`s appeal by special leave except in regard to three draft charges under section 384 IPC, and requested the High Court to nominate another Judge to try the cases. The Judge, to whom the cases were transferred, framed 79 charges against the appellant, and refused to proceed against the other named conspirators. Against the aforesaid order, the appellant filed a Special Leave Petition before this Court questioning the jurisdiction of the Special Judge to try the case in violation of the appellant 's fundamental rights conferred by Articles 14 and 21 and the provisions of the Criminal Law Amendment Act of 1952. The appellant also filed a Special Leave Petition against the decision of the Judge, holding that none of the 79 charges framed against the accused required sanction under section 197(1) of the Cr. P.C., and a writ petition challenging a portion of section 197(1) as ultra vires Articles 14 and 21 of the Constitution. This Court granted special leave in the Special Leave Petition questioning the jurisdiction of the Special Judge to try the case and stayed further proceedings in the High Court. It also issued notice in the other Special Leave Petition and the writ petition, and directed these to be tagged on to the appeal. An application filed by respondent No. 1 for revocation of the Special Leave was dismissed and the appeal was referred to a Bench of seven Judges. The other Special Leave Petition and the writ petition were delinked, to be heard after the disposal of the appeal. In the appeal, two questions arose, namely, (1) whether the directions given by this Court on 16th February, 1984, withdrawing the special cases pending in the Court of Special Judge and transferring the same to the High Court with the request to the Chief Justice to assign these cases to a sitting Judge of that High Court in breach of section 7(1) of the Criminal Law Amendment Act, 1952 which mandated that the offences, as in this case, should be tried only by a Special Judge, thereby denying at least one right of appeal to the appellant was violative of Articles 14 and 21 of the Constitution and whether such direction were at all valid or legal and (2) if such directions were not at all valid or legal in view of the Court 's order of April 17, 1984, whether the present 5 appeal was sustainable or the grounds therein justiciable in these proceedings. In other words, whether the said directions in a proceeding inter parties were binding even if bad in law or violative of Articles 14 and 21 of the Constitution and as such, immune from correction by this Court even though they caused prejudice and injury. Allowing the appeal, and setting aside and quashing all the proceedings subsequent to the directions of the Court on 16.2.1984 and directing that the trial should proceed in accordance with law, i.e. Criminal Law Amendment Act, 1952. ^ HELD: Majority: Sabyasachi Mukharji, Oza and Natarajan, JJ. Per Sabyasachi Mukharji. Section 7(1) of the Criminal Law Amendment Act, 1952 creates a condition which is sine qua non for the trial of offences under section 6(1) of the said Act. The condition is that notwithstanding anything contained in the Code of Criminal Procedure or any other law, the said offences shall be triable by Special Judges only. The offences specified under section 6(1) of the 1952 Act are those punishable under sections 161, 162, 163, 164 and 165A of the Indian Penal Code and section 5 of the Prevention of Corruption Act, 1947. [44B C,49H,A] Gurcharan Das Chadha vs State of Rajasthan, ; referred to. Therefore, the order of this Court transferring the cases to the High Court on 16th February, 1984 was not authorised by law. This Court, by its directions could not confer jurisdiction on the High Court to try any case, when it did not possess such jurisdiction under the scheme of the 1952 Act. [49A B] Kiran Singh and others vs Chaman Paswan & Others, ; at 121 and M. L. Sethi vs R. P. Kapur, ; relied on. 2.1 The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law. No Court, whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest a person of his rights of revision and appeal. [50E] 6 M.L. Sethi vs R.P. Kapur, ; and Raja Soap Factory vs section P. Shantara;, ; referred to. Halsbury 's Laws of England, 4th Vol.10 page at para 720 and Ammon Rubinstein 's Jurisdiction and Illegality, [1965] Edn. 16 50 referred to. 2.2 Want of jurisdiction can be established solely by superior court and in practice, no decision can be impeached collaterally by any interior court, but the superior court can always correct its own error brought to its notice either by way of petition or ex debito justitiae.[50G] Rubinstein 's jurisdiction and illegality(1965 Edn.) referred to. 2.3 The distinction between an error which entails absence of jurisdiction and an error made within the jurisdiction is so fine that it is rapidly being eroded. [69H.70A] Anismatic Ltd. vs Foreign Compensation Commissioner, [1969] 1 All E.R.208 at 241 referred to. This is not a case of collateral attack on judicial proceedings; it is a case where the Court having no court superior to it rectifies its own order. [69] The impugned directions were void because power was not there for this Court to transfer a proceeding under the Act of 1952 from one Special Judge to the High Court. [69G] The singling out of the appellant for a speedier trial by the High Court for an offence which the High Court had no jurisdiction to try under the Act of 1952 was unwarranted, unprecedented and directions given by this Court for the said purposes were not warranted. When that fact is brought to the notice of the court, it must remedy the situation. [51D E] 2.4 In rectifying the error, no personal inhibitions should debar this Court because no person should suffer by reason of any mistake of this Court. Here no rule of res judicata would apply to prevent this Court from entertaining the grievance and giving appropriate directions.[51E F] Soni Vrajlal Jethalal vs Soni Jadavji and Govindji & Ors. AIR 1972 Gujarat 148 approved. 7 In the earlier judgment, the points for setting aside the decision did not include the question of withdrawal of the case from the Court of Special Judge to the Supreme Court and transfer of it to the High Court. Unless a plea in question is taken it cannot operate as res judicata.[62G H] Shivshankar Prasad Shah and others v Baikunth Nath Singh and others; , ; Bikan Mahuri and others vs Mst. Bibi Walian and others, A.I.R. 1939 Patna 633; S.L. Kapoor vs Jagmohan and others, [1981] 1 S.C.C. 746; Maneka Gandhi vs Union of India, [1978] 2 S.C.R. 621 at pages 674 681 and Bengal Immunity Co. Ltd. vs The State of Bihar and others, and 623 referred to. 3.1 Section 407 of the Criminal Procedure Code was subject to over riding mandate of section 7(1) of the 1952 Act and, hence it does not permit the High Court to withdraw a case for trial to itself from the Court of Special Judge.[60D E] 3.2 Article 134(1)(b) of the Constitution does not recognise in every High Court power to withdraw for trial cases from any Court subordinate to its authority. At least this Article cannot be construed to mean that where power to withdraw is restricted, it can be widened by virtue of Article 134(1)(b) of the Constitution. [67B C] 3.3 Where by a specific clause of a specific statute the power is given for trial by the Special Judge only and transfer can be from one such Judge to another Special Judge, there is no warrant to suggest that the High Court has power to transfer Such a case from a Judge under section 6 of the Act of 1952 to itself. It is not a case of exclusion of the superior Courts. [67C] In the facts of the instant case, the criminal revision application which was pending before the High Court even if it was deemed to be transferred to this Court under Article 139A of the Constitution, it would not have vested this Court with power larger than what is contained in section 407 of Criminal Procedure Code. Under section 407 of the Criminal Procedure Code read with the Criminal Law Amendment Act, the High Court could not transfer to itself proceedings under sections 6 and 7 of the said Act. This Court, by transferring the proceedings tb itself, could not have acquired larger jurisdiction. The fact that the objection was not raised before this Court gave directions on 16th February, 1984 cannot amount to any waiver. [161F G] 8 Ledgard vs Bull, 131 A 134, Meenakshi Naidoo vs Subramaniya A Sastri, 141 A 160 referred to. 3.4 The Parliament did not grant to the Court the jurisdiction to transfer a case to the High Court. However, as the superior Court is deemed to have a general jurisdiction, the law presumes that the Court acted within jurisdiction. [60G] In the instant case, the presumption cannot be taken, firstly, because the question of jurisdiction was not agitated before the Court; secondly, these directions were given per incuriam and thirdly, the superior Court alone can set aside an error in its directions when attention is drawn to that error. This view is warranted only because of the peculiar facts and circumstances of the present case. Here the trial of a citizen in a Special Court under special jurisdiction is involved; hence the liberty of the subject is involved. [60H,61A B] Kuchenmeister vs Home office, ; Attorney General vs Herman James Sillam, [1864] 10 H.L.C. 703 and Issacs vs Robertson, [1984] 3 A.I.R. 140 referred to. Jurisdiction and Illegality by Amnon Rubinstein, [1965] Edn. referred to. 4.1 Per incuriam are those decisions given in ignorance or forget fulness of some inconsistent statutory provision or some authority binding on the Court concerned so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account to be demonstrably wrong. If a decision is given per in curiam, the Court can ignore it. [52A B, 53G] Morelle vs Wakeling, ; ; State of Orissa vs The Titaghur Paper Mills Co. Ltd., ; and Bengal Immunity Co. Ltd. vs State of Bihar , 623 referred to. In the instant case, when this Court gave directions on 16th February 1984, for disposal of the case against the appellant by the High Court, it was oblivious of the relevant provisions of the law and the decision in Anwar Ali Sarkar 's case, which is a binding precedent [51G H] 4.2 A Full Bench or a Constitution Bench decision was binding on the Constitution Bench because it was a Bench of seven Judges. There is 9 a hierarchy in this Court itself where larger Benches over rule smaller Benches which is the crystallised rule of law. [52E,F] State of West Bengal vs Anwar Ali Sarkar, ; ; Nattulal vs Radhe Lal, ; ; Union of lndia and Anr. vs KS. Subramaniam, ; at p. 92; State of U.P. vs Ram Chandra Trivedi, ; at 473; Halsbury 's Laws of England, 4th Edn. 26 page 297, para 578 and page 300, relevant notes on 8.11 and 15; Dias on Jurisprudence, 5th Edn. pages 128 and 130; Young vs Bristol Aeroplane Co. Ltd. at 300; Moore vs Hewitt at 272A; Penny vs Mcholas, and Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; referred to. It was manifest to the Bench that exclusive jurisdiction created under section 7(1) of the 1952 Act read with section 6 of the said Act, when brought to the notice of the Court, precluded the exercise of power under section 407 of the Code. There was no argument, no submission and no decision on this appeal at all. There was no prayer in the appeal which was pending before this Court for such directions. [59D E] The order of this Court was clearly per incuriam. The Court was not called upon to and did not, decide the express limitation on the power conferred by section 407 of the Code. which includes offences by public servants mentioned in the 1952 Act to be over ridden in the manner sought to be followed as a consequential direction of this Court. This Court did not have jurisdiction to transfer the case to itself. That will be evident from an analysis of different provisions of the Code as well as the 1952 Act [50C D] Therefore, in view of the clear provisions of section 7(2) of the Act of 1952 and Articles 14 and 21 of the Constitution these directions were legally wrong. [52C] 4.3 Though the previous statute is referred to in the other judgment delivered on the same date, in connection with other contentions, section 7(1) was not referred to in respect of the impugned directions. Hence these observations were indubitably per incuriam. [66A] Miliangos vs George Frank (Textiles) Ltd, at 821 referred to. This Court is not powerless to correct its error which has the 10 effect of depriving a citizen of his fundamental rights and more so, the A right to life and liberty. It can do so in exercise of its inherent jurisdiction in any proceeding pending before it without insisting on the formalities of a review application. [54A B] Powers of review can be exercised in a petition file under Article 136 or Article 32 or under any other provision of the Constitution if the Court is satisfied that its directions have resulted in the deprivation of the fundamental rights of a citizen or any legal right of the petitioner. [54B C] The Supreme Court has the power to review either under Article 137 or suo motu the directions given by this Court. [62E] Prem Chand Garg vs Excise Commissioner, U.P. Allahabad, [1963] Suppl.1 SCR 885; Naresh Shridhar Mirajkar and others vs State of Maharashtra and another; , and Smt. Ujjam Bai vs State of U.P., [1963] 1 S.C.R. 778; Kailash Nath vs State of U.P. AIR 1957 (SC) 790; P.S.R. Sadhananatham vs Arunachalam, ; ; Suk Das vs Union Territory of Arunachal Pradesh, [1986] 2 S.C.C. 401; Asrumati Devi vs Kumar Rupendra Deb Raikot and others; , ; Satyadhyan Ghosal and others vs Smt. Deorajin Debi and another; , ; Sukhrani (dead) by L.Rs. and others vs Hari Shanker and others; , and Bejoy Gopal Mukherji vs Pratul Chandra Ghose, ; referred to. It is also well settled that an elementary rule of justice is that no party should suffer by mistake of the Court. [63B] Sastri Yagnapurushadji and others vs Muldas Bhudardas Vaishya and another; , ; Jang Singh vs Brijlal ; ;Bhajahari Mondal vs The State of West Bengal; , at 1284 1286 and Asgarali N. Singaporawalle vs The State of Bombay ; at 692 referred to. It was a mistake of so great a magnitude that it deprives a man by being treated differently of his fundamental right for defending himself in a criminal trial in accordance with law. Therefore, when the attention of the Court is drawn, the Court has always the power and the obligation to correct it ex debito justitiae and treat the second application by its inherent power, as a power of review to correct the original mistake. [56C D] The directions have been issued without observing the principle of audi alteram partem.[53D] 11 This Court is not debarred from re opening this question and giving proper directions and correcting the error in the present appeal. [53C] The appellant should not suffer on account of the direction of this Court based upon an error leading to conferment of jurisdiction. [53B] 7. The principle of finality on which Article 145(e) proceeds applies to both judgments and orders made by the Supreme Court. But directions given per incuriam in violation of certain constitutional limitations and in derogation of the principles of natural justice can always be remedied by the court ex debite justitiae. [68F G] In the instant case, this Court is correcting an irregularity committed by the Court not on construction or misconstruction of a statute but on non perception of certain provisions and certain authorities which would amount to derogation of the constitutional rights of the citizen. [69C D] Issacs vs Robertson, and Re Recal Communications Ltd. Case, ; referred to. No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also, the violation of the principles of natural justice renders the act a nullity.[59H] 9.1 Four valuable rights of the appellant have been taken away by the impugned directions. i) The right to be tried by a Special Judge in accordance with the procedure established by law and enacted by Parliament. ii) The right of revision to the High Court under section 9 of the Criminal Law Amendment Act. iii) The right of first appeal to the High Court under the same section iv) The right to move the Supreme Court under Article 136 thereafter by way of a second appeal, if necessary. The right of the appellant under Article 14 regarding equality 12 before the law and equal protection of law has been violated. The appellant has also a right not to be singled out for special treatment by a Special Court created for him alone. This right is implicit in the right to equality. [60A C,62A B] State of West Bengal vs Anwar Ali Sarkar, ; relied on. The appellant has a further right under Article 21 of the Constitution a right to trial by a Special Judge under section 7(1) of the 1952 Act which is the procedure established by law made by the Parliament and a further right to move the High Court by way of revision or first appeal under section 9 of the said Act. He has also a right not to suffer any order passed behind his back by a Court in violation of the basic principles of natural justice. Directions having been given in this case without hearing the appellant, though the order was passed in the presence of the counsel for the appellant, these are bad. [62B Dl It is proper for this Court to act ex debito justitiae, in favour of the fundamental rights of the appellant. [62E] Nawabkhan Abbas Khan vs The State of Gujarat, ; referred to. 9.2 There was prejudice to the accused in being singled out as a special class of accused for a special dispensation witbout any room for any appeal as of right and without power of revision to the High Court. [67G] Romesh Chandra Arora vs The State, at 927 distinguished. 9.3 The trial even of person holding public office though to be made speedily must be done in accordance with the procedure estab lished by law. The provisions of section 6 read with section 7 of the Act of 1952 in the facts and circumstances of this case is the procedure established by law, and any deviation even by a judicial direction will be negation of the rule of law. [68D E] By judicial direction, the rights and previliges of the accused have been curtailed without any justification in law. [ 68B] State of West Bengal vs Anwar Ali Sarkar, ; relied on. 13 Re: Special Courts Bill, [1978] referred to. 9.4 The right of appeal under section 374 of the Cr. P.C. is confined only to cases decided by the High Court in its Letters Patent jurisdiction which in terms is extraordinary original criminal jurisdiction ' under clause 27 of Letters Patent. [63F] Kavasji Pestonji Dalal vs Rustomji Sorabji Jamadar & Anr., AIR 1949 Bom. 42, Sunil Chandra Roy & Anr. vs The State AIR 1954 Cal. 305; Sasadhar Acharjya & Anr. vs Sir Charles Tegart & Ors., [1935] Cal. Weekly Notes1089;People insurance Co. Ltd. vs Sardul Singh Caveeshgar & Ors. J AIR 1961 Punj. 87 and P.P. Front, New Delhi vs K. K Birla. referred to. 9.5 By the time the Code of Criminal Procedure 1973 was framed, Article 21 had not been interpreted so as to include one right of appeal both on facts and law. [64C] 10. Words should normally be given their ordinary meaning bearing in mind the context. It is only where the literal meaning is not clear that one resorts to the golden rule of interpretation or the mischief rule of interpretation. [66C] Sussex Peerage Claim, ; at 143 referred to. Cross: Statutory Interpretation, p. 36. In view of the specific language used in section 7 of the 1952 Act, it is not necessary to consider whether the procedure for trial by Special Judges under the Code has stood repealed or not. The concept of repeal may have no application in this case. [66B] 11. No man is above the law, but at the same time, no man can be denied his rights under the Constitution and the laws. He has a right to be dealt with in accordance with the law and not in derogation of it. [71B] This Court, in its anxiety to facilitate the parties to have a speedy trial, gave direction on 16th February, 1984 without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952 Act and that being the only procedure established by law, there can be no deviation from the terms of Article 21 of the Constitution of India. That is the only procedure under which it should have been guided. [71B C] 14 By reason of giving the impugned directions, this Court had also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law. [71C D] When these factors are brought to the notice of this Court, even if there are any technicalities, this Court should not feel shackled and decline to rectify that injustice; or otherwise, the injustice noticed will remain forever a blot on justice. [71D] 12.1 The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the hand maids of justice and not the mistress of the justice. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. [72B C] 12.2 The maxim "Actus Curiae Neminem Gravabit" An act of the Court shall prejudice no man is founded upon justice and good sense and affords a safe and certain guide for the administration of the law. [71E] Alaxander Rodger vs The Comptoir Dlescompte De Paris Cham Reports, Vol. III 1869 71 p. 465 at 475 referred to. 13. Purity of public life is one of the cardinal principles which t. must be upheld as a matter of public policy. Allegations of legal infractions and criminal infractions must be investigated in accordance with law and procedure established under the Constitution. [73B] Even if the accused has been wronged, if he is allowed to be left in doubt that would cause more serious damage to him. Public confidence in public administration should not be eroded any further. One wrong cannot be remedied by another wrong. [73B] The legal wrong that has been done to the appellant should be remedied and right should be done. In doing so, no more further injury should be caused to the public purpose. [73C] The impugned directions were in deprival of the Constitutional rights and contrary to the express provisions of the Criminal Law 15 Amendment Act, 1952, in violation of the principles of natural justice, and without precedent in the background of the Act of 1952. The directions definitely deprived the appellant of certain rights of appeal and revision and his rights under the Constitution. [69F] Having regard to the enormity of the consequences of the error to the appellant and by reason of the fact that the directions were given suo motu, there is nothing which detracts the power of the Court to review its judgment ex debito justitiae in case injustice has been caused. No Court however high has jurisdiction to give an order unwarranted by the Constitution. [70A B] Ittavira Mathai vs Varke,P Varkey and others; , referred to. Bhatia Cooperative Housing Society Ltd. vs D.C. Patel, ; at 190 distinguished. Since this Court infringed the Constitutional safeguards granted to a citizen or to an accused, in giving the directions and injustice results therefrom, it is just and proper for the Court to rectify and recall that injustice in the peculiar facts and circumstances of this case. Therefore, all the proceedings in the matter subsequent to the directions of this Court on February 16, 1984, are set aside and quashed and the trial should proceed in accordance with law, that is to say, under the Act of 1952. [70C,73D E] R.S. Nayak vs A.R. Antulay, ; ; A.R. Antulay vs Ramdas Sriniwas Nayak and another; , ; Abdul Rehman Antulay vs Union of India and others etc. ; at 483; Kailash Nath vs State of U.P., AIR 1957 SC 790; Sukdas vs Union Territory of Arunachal Pradesh Discretion to Disobey by Mortimer R. Kadish and Sanford H. Kadish pages 111 and 112 referred to. Per Ranganath Misra, J. (Concurring) 14. Section 7(1) has clearly provided that offences specified in sub section (1) of section 6 shall be triable by the Special Judge only and has taken away the power of the courts established under the Code of Criminal Procedure to try those offences. As long as section 7 of the Amending Act of 1952 holds the field it was not open to any court including the Apex Court to act contrary to section 7(1) of the Amending Act.[81E F] 16 State of West Bengal vs Anwar Ali Sarkar, ; referred to. The power to transfer a case conferred by the Constitution or by section 406 of the Code of Criminal Procedure does not specifically relate to the Special Court. Section 406 of the Code could be applied on the principle that the Special Judge was a subordinate court for transferring a case from one Special Judge to another Special Judge because such a transfer would not contravene the mandate of section 7(1) of the Amending Act of 1952. While that may be so, the provisions for transfer, do not authorise transfer of a case pending in the court of a Special Judge first to the Supreme Court and then to the High Court for trial. This Court did not possess the power to transfer the proceedings from the Special Judge to the High Court. [81G H,82A] Raja Soap Factory vs S.P. Santharaj, ; referred to. 16.1 It is the settled position in law that jurisdiction of courts comes solely from the law of the land and cannot be exercised other wise. [77E] 16.2 Jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the Legislature. Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts. [77G] 17. By the change of forum of trial the accused has been pre judiced. By this process he misses a forum of appeal because if the trial was handled by a Special Judge, the first appeal would lie to the High Court and a further appeal by special leave could come before this Court. If the matter is tried by the High Court there would be only one forum of appeal being this Court, whether as of right or by way of special leave. [83H, 84A B] 18. The transfer was a suo motu direction of the court. Since this particular aspect of the matter had not been argued and counsel did not have an opportunity of pointing out the legal bar against transfer, the Judges of this Court obviously did not take note of the special provisions In section 7(1) of the 1952 Act. If this position had been appropriately placed, the direction for transfer from the court of exclusive jurisdiction to the High Court would not have been made by the Constitution Bench. It is appropriate to presume that this Court never intends to act contrary to law. [82E F] 17 19. One of the well known principles of law is that decision made by a competent court should be taken as final subject to further proceedings contemplated by the law of procedure. In the absence of any further proceedings, the direction of the Constitution Bench on 16th of February, 1984 became final and it is the obligation of everyone to implement the direction of the apex Court. Such an order of this Court should by all canons of judicial discipline he binding on this Court as well and cannot be interfered with after attaining finality. [84C D] 20.1 It is a well settled position in law that an act of the court should not injure any of the suitors. [84F] Alexander Rodger vs The Comptori D 'Escompte De Paris, [1871] 3 PC 465 referred to. Once it is found that the order of transfer by this Court was not within jurisdiction by the direction of the transfer of the proceedings made by this Court, the appellant should not suffer. [85B] 20.3 This being the apex Court, no litigant has any opportunity of approaching any higher forum to question its decisions. Once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the Court to rectify the mistake by exercising inherent powers. A mistake of the Court can be corrected by the Court itself without any fetters. In the present situation, the Court 's inherent powers can be exercised to remedy the mistake. [87F,88B C] Gujarat vs Ram Prakash ; Alexander Rodger vs The Comptori D 'Escompte De Paris, [1871] 3 PC 465 and Krishna Deo vs Radha Kissan, ; ; Debi vs Habib lLR 35 All 331 and Murtaza vs Yasin. AIR 191 PC 857 referred to. 20.4 The injustice done should be corrected by applying the principle actus curiae neminem gravabit, an act of the court shall prejudice no one.[88H] 20.5 To err is human. Courts including the apex one are no exception. To own up the mistake when judicial satisfaction is reached does not militate against its status or authority. Perhaps it would enhance both. [89B] 21. If a mistake is detected and the apex Court is not able to 18 correct it with a view to doing justice for fear of being misunderstood, the cause of justice is bound to suffer and for the apex Court the apprehension would not be a valid consideration. This Court, while administering justice, does not take into consideration as to who is before it. Every litigant is entitled to the same consideration and if an order is warranted in the interest of justice, the status or influence of the accused cannot stand in the way as a bar to the making of that order. [89F G] 22. Finality of the orders is the rule. By directing recall of an order, the well settled propositions of law would not be set at naught. Such a situation may not recur in the ordinary course of judicial functioning and if there be one, certainly the Bench before which it comes would appropriately deal with it. Nn strait jacket formula can be laid down for judicial functioning particularly for the apex Court. The apprehension that the decision to recall the earlier decision may be used as a precedent to challenge judicial orders of this Court is perhaps misplaced because those who are familiar with the judicial functioning are aware of the limits and they would not seek support from this case as a precedent. This Court is sure that if precedent value is sought to be derived out of this decision, the Court which is asked to use this as an instrument would be alive to the peculiar facts and circumstances of the case in which this order is being made. [87H, 90A B] 23. Under the Rules of the Court a review petition was not to be heard in Court and was liable to be disposed of by circulation. In these circumstances, the petition of appeal could not be taken as a review petition. [87E] 24. Benches of this Court are not subordinate to larger Benches thereof and certiorari is, therefore, not admissible for quashing of the orders made on the judicial side of the Court. [85C] Naresh Chandra Mirajkar & Ors. vs State of Maharashtra Prem Chand Garg vs Excise Commissioner, U.P., Allahabad referred to. Apart from the fact that the petition of review had to be filed within 30 days and here there has been inordinate delay the petition for review had to be placed before the same Bench and now that two of the learned judges of that Constitution Bench are still available, 19 it must have gone only before a Bench of five with those two learned Judges. [87D E] 26. It is time to sound a note of caution. This Court under its Rules of Business ordinarily sits in divisions and not as a whole one. Each Bench, whether small or large, exercises the powers vested in the Court and decisions rendered by the Benches irrespective of their size are considered as decisions of the Court. The practice has developed that a larger Bench is entitled to overrule the decision of a smaller Bench notwithstanding the fact that each of the decisions is that of the Court. That principle, however, would not apply in the present situation, and since this Court is sitting as a Bench of Seven this Court is not entitled to reverse the decision of the Constituffon Bench. [89B C] 27. Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without affecting the binding effect of the decision in the particular case. [89C] In the instant case, the appellant is, therefore, not entitled to take advantage of the matter being before a larger Bench. In fact, if it is a case of exercise of inherent powers to rectify a mistake it was open even to a five Judge Bench to do that and it did not require a Bench larger than the Constitution Bench for that purpose. [89D] Per Oza, J. (Supplementing) 28. The jurisdiction to try a case could only be conferred by law enacted by the legislature and this Court could not confer jurisdiction if it does not exist in law. [90F] 29. No doubt a judgment or an order passed by this Court will not be open to a writ of certiorari even if an error is apparent. But at the same time, there should be no hesitation in correcting an error in exercise of inherent jurisdiction if it comes to the notice of the Court. [90D E] In the instant case, it is this error which is sought to be corrected, although it is being corrected after long lapse of time. [90F] Per Ray,J.(Concurring) 20 30. The Jurisdiction or power to try and decide a cause is conferred on the courts by the Law of the Lands enacted by the Legislature or by the provisions of the Constitution and the court cannot confer a jurisdiction on itself which is not provided in the law and judicial order of this Court is not Emenable to a writ of certiorari tor correcting any error in the judgment. However, since the act of the court should not injure any of the suitors, the error in question is sought to be corrected. after a lapse of more than three years. [90H,91A B] Per Venkatachaliah, J. (Dissenting) 31.1 The exclusiveness of jurisdiction uf the special judge under section 7(1) of 1952 Act depends on the construction to be placed on the relevant statutory provision. If on such a construction, however erroneous it may be, the court holds that the operation of section 407 Cr. P.C. is not excluded, that interpretation will denude the plenitude of the exclusivity claimed for the forum. To say that the court usurped legislative powers and created a new jurisdiction and a new forum ignores the basic concept of functioning of courts. The power to interpret laws is the domain and function of courts. [108D E] Thomas vs Collins, ; referred to. 31.2 The earlier decision proceeded on a construction of section 7(1) of the Act and section 407 of Cr. This bench does not sit in appeal over what the five Judge Bench said and proclaim how wrong they were. This Bench is simply not entitled to embark, at a later stage, upon an investigation of the correctness of the very decision. The same bench can, of course, reconsider the matter under Article 137. 32.1 The expression "jurisdiction" or the power to determine is a verbal cast of many colours. In the case of a Tribunal, an error of law might become not merely an error m jurisdiction but might partake of the character of an error of jurisdiction. But, otherwise jurisdiction is a 'legal shelter ', a power to bind despite a possible error in the decision. [102C] 32.2. In relation to the powers of superior courts, the familiar distinction between jurisdictional issues and adjudicatory issues approts priate to Tribunals of limited jurisdiction has no place. [102A] 32.3 Before a superior court there is no distinction in the quality of the decision making process respecting jurisdictional questions on the one hand and adjudicatory issues or issues pertaining to the merits, on the other. [102B] 21 32.4 The existence of jurisdiction does not depend on the correctness of its exercise. The authority to decide embodies a privilege to bind despite error, a privilege which is inherent in and indispensable to every judicial function. The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong. [102D] Mallikarjun vs Narhari, [1900] 27 I.A. 2 10 referred to. Anismatic Ltd. vs Foreign Compensation Commission, ; distinguished. 32.5 A finding of a superior court even on a question of its own jurisdiction, however grossly erroneous it may otherwise be, is not a nullity nor one which could at all be said to have been reached without jurisdiction, susceptible to be ignored or to admit of any collateral attack. Otherwise, the adjudications of superior courts would be held up to ridicule and the remedies generally arising from and considered concomitants of such classification of judicial errors would be so seriously abused and expanded as to make a mockery of those foundational principles essential to the stability of administration of justice. [102G,103A] 32.6 The superior court has jurisdiction to determine its own jurisdiction and an error in that determination does not make it an error of jurisdiction. [103B] Holdsworth (History of English Law) Vol. 6 page 239 and Rubinstein: Jurisdiction and Illegality referred to. Re Racal Communications Ltd. ; and Issac vs Robertson, referred to. 32.7 Superior courts apart, even the ordinary civil courts of the land have jurisdiction to decide questions of their own jurisdiction. [105H] It would be wholly erroneous to characterise the directions issued by the five Judge Bench as a nullity, amenable to be ignored or so declared in a collateral attack. [106E] 33. A judgment, inter parties, is final and concludes the parties. [106F] Re Hastings (No. 3) ; Daryao vs State of UP; , ; Trilok Chand vs H.B. Munshi, and 22 Shiv Nandan Paswan vs State of Bihar, [ ; at 343 relied on 34.1 All accused persons cannot claim to be tried by the same Judge. The discriminations inherent in the choice of one of the concurrent jurisdictions are not brought about by an inanimate statutory rule or by executive fiat. The withdrawal of a case under section 407 is made by a conscious judicial act and is the result of judicial discernment. If the law permits the withdrawal of the trial to the High Court from a Special Judge, such a law enabling withdrawal would not, prima facie, be bad as violation of Article 14. [114G H, 115A] 34.2 No doubt, the fundamental right under Article 14 has a very high place in constitutional scale of values. Before a person is deprived of his personal liberty, not only that the procedure established by law must strictly be complied with and not departed from to the disadvantage or detriment of the person but also that the procedure for such deprivation of personal liberty must be reasonable, fair and just. Article 21 imposes limitations upon the procedure and requires it to conform to such standards of reasonableness, fairness and justness as the Court acting as sentinel of fundamental rights would in the context, consider necessary and requisite. The Court will be the arbiter of the question whether the procedure is reasonable, fair and just. [114D F] 34.3 The five judge bench in the earlier case has held that such a transfer is permissible under law. That decision had assumed finality. The appeal to the principle in Anwar Ali 's Sarcar 's case, in such a context would be out of place. [115A] State of West Bengal vs Anwar Ali Sarkar, ; distinguished. That a trial by a Judge of the High Court makes for added re assurance of justice, has been recognised in a number of judicial pronouncements. The argument that a Judge of the High Court may not necessarily possess the statutory qualifications requisite for being appointed as a Special Judge appears to be specious. A judge of the High Court hears appeals arising from the decisions of the Special Judge and exercises a jurisdiction which includes powers co extensive with that of the trial court. [115C D] 36. The plea that transfer of the case to the High Court involves the elimination of the appellant 's right of appeal to the High Court 23 which he would otherwise have and that the appeal under Article 136 of the Constitution as of right cannot be accepted in view of section 374, Cr. P.C. which provides such an appeal, as of right, when the trial is held by the High Court. [117A B] 37. Directions for transfer were issued on 16.2.1984 in the open court in the presence of appellant 's counsel at the time of pronouncement of the judgment and counsel had the right and the opportunity of making submission to the court as to the permissibility or otherwise of the transfer. After the directions were pronounced and before the order was signed, though there was opportunity for the appellant 's counsel to make submission in regard to the alleged illegality or impropriety of the directions, appellant did not utilise the same. That apart, even after being told by two judicial orders that appellant, if aggrieved, may seek a review, he did not do so. Even the grounds urged in the many subsequent proceedings appellant took to get rid of the effect of the direction do not appear to include the grievance that he had no opportunity of being heard. [115F, G H,116A B] Therefore, where a party having had an opportunity to raise a grievance in the earlier proceedings does not do so and makes it a technicality later, he cannot be heard to complain. [116B] Rules of natural justice embodies fairness in action. By all standards, they are great assurances of justice and fairness. But they should not be Pushed to a breaking point. [116F] R. vs Secretary of State for Home Deptt. ex parte Mughal, , referred to. 38.1 The circumstance that a decision is reached per incuriam, merely serves to denude the decision of its precedent value. Such a decision would not be binding as a judicial precedent. A co ordinate bench can discharge with it and decline to follow it. A larger bench can over rule such decision. When a previous decision is so overruled it does not happen nor has the overruling bench any jurisdiction so to do that the finality of the operative order, inter parties, in the previous decision is over turned. In this context the word 'decision ' means only the reason for the previous order and not the operative order in the previous decision, binding inter parties. Even if a previous decision is over 24 ruled by a larger bench, the efficacy and binding nature, of the adjudication expressed in the operative order remains undisturbed interparties. [119B D] 38.2 Even if the earlier decision of the five judge bench is perincuriam the operative part of the order cannot be interfered with in the manner now sought to be done. That apart, the five judge bench gave its reason. The reason may or may not be sufficient. There is advertence to section 7(1) of the 1952 Act and to exclusive jurisdiction created thereunder. There is also reference to section 407 of the Criminal Procedure Code. [119D E] 39.1 An erroneous decision must be as binding as a correct one. It would be an unattainable ideal to require the binding effect of a judgment to depend on its being correct in the absolute, for the test of correctness would be resort to another Court the infallibility of which is again subject to a similar further investigation. [101D E] 39.2 However, motions to set aside the judgments are permitted where a judgment was rendered in ignorance of the fact that u necessary party had not been served at all, and was wrongly shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented, or where a judgment was obtained by fraud, and it tended to prejudice a non party, as in the case of judgments in rem such as for divorce, or jactitation or probate etc. even a person, not eo nomine a party to the proceedings, or where a party has had no notice and a decree is made against him in which case, the party is said to become entitled to relief ex debito justitiae, on proof of the fact that there was no service, since there is no trial at all and the judgment is for default. [110C F] Cases of such frank failure of natural justice are obvious cases where relief is granted as of right. [111A] Where a person is not actually served out but is held erroneously, to have been served, he can agitate that grievance only in that forum or in any further proceeding therefrom. [111A] Issac vs Robertson, distinguished. Rajunder Narain Rae vs Bijai Govind Singh, 2 MIA 181, referred to. 25 D.M. Gordan: Actions to set aside judgment, [1961] 77 Law quarterly Review 358 In the present case by the order dated 5.4.1984 a five judge bench set out, what according to it was the legal basis and source of jurisdiction to order transfer. On 17.4.1984 appellant 's writ petition challenging that transfer as a nullity was dismissed. These orders are not which appellant is entitled to have set aside ex debito justitiae by another Bench. [111C D] 40. The pronouncements of every Division Bench of this Court are pronouncements of the Court itself. A larger bench, merely on the strength of its numbers, cannot un do the finality of the decisions of Other division benches. [108H] 41.1 The power to alter a decision by review must be expressly conferred or necessarily inferred. The power of review and the limitations on the power under Article 137 are implict recognitions of what would, otherwise, be final and irrevocable. No appeal could be made to the doctrine of inherent powers of the Court either. Inherent powers do not confer, or constitute a source of jurisdiction :. They are to be exercised in aid of a e that is already invested. [120F G] 41.2 If the decision suffers from an error, the only way to correct it, is to go in Review under Article 137 read with order 40 Rule 1 framed under Article 145 before "as far as is practicable" the same judges. This is not a matter merely of some dispensable procedural 'form ' but the requirement of substance. [109A] In the instant case, the remedy of the appellant is recourse to Article 137, no where else. This is both in good sense and good law. [120G] Judicial proceedings of this Court are not subject to writ jurisdiction thereof. [118H] Naresh Sridhar Mirajkar & Ors. vs State of Maharashtra & Anr., followed. Prem Chand Garg vs Excise Commissioner, UP, , referred to. Kadesh & Kadesh: Discretion to Disobey, [1973] edn. P. 111, referred to. 26 42. The maxim Actus Curiae Neminem Gravabid had no application to conscious conclusions reached in a judicial decision. The maxim is not a source of a general power to reopen and rehear adjudication which have otherwise assumed finality. The maximum operates in a different and narrow area. The best illustration of the operation of the maxim is provided by the application of the rule of nunc pro tunc. For instance, if owing to the delay in what the court should, otherwise, have done earlier but did later, a party suffers owing to events occurring in the interrugnum, the Court has the power to remedy it. The area of operation of the maxim is, generally, procedural. Errors in judicial findings, either of facts or law or operative decisions consciously arrived at as a part of the judicial exercise cannot be interfered with by resort to this maxim. [120B C] 43. Those who do not put the teachings of experience and the lessons of logic out of consideration would tell what inspires confidence in the judiciary and what does not. Judicial vacillations fall in the latter category and undermine respect of the judiciary and judicial institutions, denuding thereby respect for law and the confidence in the even handedness in the administration of justice by Courts. [120E] This Court had, therefore, the jurisdiction and power to with draw and transfer the cases from Special Judge to the High Court, and the directions for trial of the offences by a Special Judge are not void and these directions could not be challenged in a collateral attack. This Court had not created a new jurisdiction and usurped legislative power violating the basic tenet of doctrine of separation of powers. [99C F, 114D, 106E] 44. An accused person cannot assert any right to a joint trial with his co accused. Normally it is the right of the prosecution to decide whom it prosecutes. It can decline to array a person as a co accused and, instead examine him as a witness for the prosecution. What weight is to be attached to that evidence, as it may smack of the testimony of a guilty partner in crime, is a different matter. Prosecution can enter Nolle proseque against any accused person. It can seek to withdraw a charge against an accused person. These propositions are too well settled to require any further elaboration. [98B D] Choraria vs Maharashtra, , referred to. In the instant case, the appellant cannot be heard to complain. Of the so called co conspirators some have been examined already as pro 27 secution witnesses; some others proposed to be so examined; and two others, had died in the interregnum. The appeal, on the point, has no substance and would require to be dismissed. [98G] Per Ranganathan, J. (partly concurring/dissenting) 45.1 The language of section 7(1) of the 1952 Act places a definite hurdle in the way of construing section 407 of the Cr. P.C. as overriding its provisions. In view of non obstante clause also, it cannot be held that the provisions of section 407 of the 1973 Cr. P.C. will override, or even operate consistently with, the provisions of the 1952 Act. Similarly, the power of transfer contained m clause 29 of the letters Patent of the High Court cannot be exercised in a manner not contemplated by section 7(1) of the 1952 Act. [131D E] 45.2 A power of transfer postulates that the court to which transfer or withdrawal is sought is competent to exercise jurisdiction over the case. [130F] Raja Soap Factory vs Shantaraj, [ 1965] 2 SCR, relied on. 45.3 The power of transfer contained in the Code of Criminal Procedure cannot be availed of to transfer a criminal case from a Special Judge to any other criminal court or even to the High Court. The case can be transferred only from one special judge to another special judge; it cannot be transferred even to a High Court Judge except where a High Court Judge is appointed as a Special Judge. [130E F] Gurcharan Das Chadha vs State of Rajasthan, [1966] 2 SCR, referred to. 45.4 Not all the judges of the High Court (but only those elevated from the State subordinate judiciary) would fulfil the qualifications prescribed under section 6(2) of the 1952 Act. Though there is nothing in sections 6 and 7 read together to preclude altogether the appointment of a judge of the High Court fulfilling the above qualifications as a special judge such is not the (atleast not the normal) contemplation of the Act. The scheme of the Act, in particular the provisions contained in sections 8(3A) and 9, militate against this concept. [126C, E] Hence, in the instant case apart from the fact that no appointment of a High Court Judge, as a Special Judge, has in fact been made, it is not possible to take the view that the statutory provisions permit the 28 conferment of a jurisdiction to try this case on a High Court Judge as a Special Judge. [126F] 45.5 The 1952 Act sought to expedite the trial of cases involving public servants by the creation of courts presided over by experienced special judges to be appointed by the State (government. Effect is only 13 being given to the express and specific words used in section 7(1) and no question arises of any construction being encouraged that is repugnant to the Cr. P.C. Or involves an implied repeal, pro tanto, of its provisions. [132D. E] 46.1 The word "jurisdiction is a verbal coat of many colours. " It is used in a wide and broad sense while dealing with administrative or quasi judicial tribunals and subordinate courts over which the superior courts exercise a power of judicial review and superintendence. Then it is only a question of "how much latitude the court is prepared to allow" and "there is no yardstick to determine the magnitude of the error other than the opinion of the court. " [158A B] M. L. Sethi vs Kapur, [ 1973] I SCR 697, referred to. 46.2 The Superior Courts, with unlimited jurisdiction are always presumed to act with jurisdiction and unless it is clearly shown that any particular order is patently one which could not, on any conceivable view of its jurisdiction, have been passed by such court, such an order can neither be ignored nor even recalled, annulled, revoked or set aside in subsequent proceedings by the same court. [158B C ] Dhirendera Kumar vs Superintendent, [1955] I SCR 224; Kiran Singh vs Chaman Paswan, AIK ; ; Anisminic Ltd. vs Foreign Compensation Commissioner, [1969] 2 A.C. 147; Badri Prasad vs Nagarmal, [1959] 1 Supp. S.C.R. 769; Surajmul Nagarmul vs Triton Insurance Co. Ltd., [1924] L.R. 52 I.A. 126; Balai Chandra Hazra vs Shewdhari Jadhav, ; ; Ledgard vs Bull, L.R. 13 I.A. 134; Meenakshi Naidu vs Subramaniya Sastri, L.R. 14 I.A. 140; Sukhrani vs Hari Shankar; , ; Re: Recal Communications Ltd.; , and lssacs vs Robertson, referred to. In the present case, the order passed is not one of patent lack of jurisdiction. Though the direction in the order dated 16.2.1984 cannot be justified by reference to Article 142 of the Constitution of section 407 of the 1973 Cr. P.C., that is not an incontrovertible position. It was 29 possible for another court to give a wider interpretation to these provisions and come to the conclusion that such an order could be made under those provisions. If this Court had discussed the relevant provisions and specifically expressed such a conclusion, it could not have been modified in subsequent proceedings by this Bench merely because it was inclined to hold differently. The mere fact that the direction was given, without an elaborate discussion, cannot render it vulnerable to such review . [158D F] 47. Unless the earlier order is vitiated by a patent lack of jurisdiction or has resulted in grave injustice or has clearly abridged the fundamental rights of the appellant, this Court should not declare that an order passed by a five Judge Bench is wrong, and annul it. The present case cannot be brought within the narrow range of exceptions which calls for such interference. [166E] The direction issued by this Court in the impugned order cannot be said to be based on a view which is manifestly incorrect, palpably absurd or patently without jurisdiction. Whether it will be considered right or wrong by a different Bench having a second look at the issue is a totally different thing. [167E] 48.1 The powers of the Supreme Court to transfer cases from one court to another are to be found in Article 139 A of the Constitution and section 406 of the Cr. The provisions envisage either inter state transfers of cases i.e. from a court in one State to a court in another State or the withdrawal of a case by the Supreme Court to itself. Intra State transfer among courts subordinate to a High Court to inter se or from a court subordinate to a High Court to the High Court is within the jurisdiction of the appropriate High Court. [133F G] 48.2 The powers of the Supreme Court, in disposing of an appeal or revision, are circumscribed by the scope of the proceedings before it. [133H] In the instant case, the question of transfer was not put in issue before the Supreme Court. The Court was hearing an appeal from the order of discharge and connected matters. There was no issue or controversy or discussion before it as to the comparative merits of a trial before a special judge vis a vis one before the High Court. There was only an oral request said to have been made, admittedly after the judgment was announced. Wide as the powers under Article 141 are, they do not envisage an order of the type presently in question. [134A, C D] K.M. Nanavati vs The State of Bombay, ; distinguished. 30 48.3 If the provisions of the 1952 Act read with Article 139 A and sections 406 407 of the Cr. P.C. do not permit the transfer of the case from a special judge to the High Court, that effect cannot be achieved indirectly. In the circumstances of the case, the Supreme Court cannot issue the impugned direction in exercise of the powers under Article 142 or under section 407 available to it as an appellate court. [l34F] Hari vs Emperor, AIR 1935 PC 122, referred to. The direction that the trial should be shifted to the High Court can hardly be described as a consequential or incidental order. Such a direction did not flow, as a necessary consequence of the conclusion of the court on the issues and points debated before it. Therefore, this Court was in error when it directed that the trial of the case should be before a High Court Judge, in consequence of which the appellant is being tried by a Court which has no jurisdiction and which cannot be empowered by the Supreme Court to try him. The continued trial before the High Court, therefore, infringes Article 21 of the Constitution. [135E GI 49.1 Section 407 cannot be challenged under Article 14 as it is based on a reasonable classification having relation to the objects sought to be achieved. Though, in general, the trial of cases will be by courts having the normal jurisdiction over them, the exigencies of the situation may require that they be dealt with by some other court for various reasons. Likewise, the nature of a case, the nature of issues involved and other circumstances may render it more expedient, effective, expeditious or desirable that the case should be tried by a superior court or the High Court itself. [136E F3] 49.2 The power of transfer and withdrawal contained in section 407 of the Cr. P.C. is one dictated by the requirements of justice and is, indeed, but an aspect of the supervisory powers of a superior Court over courts subordinate to it. [136FJ] 49.3 A judicial discretion to transfer or withdraw is vested in the highest court of the State and is made exercisable only in the circumstances set out in the section. Such a power is not only necessary and desirable but indispensable in the cause of the administration of justice. The accused will continue to be tried by a or equal or superior jurisdiction. [136G] The accused will, therefore, suffer no prejudice by reason of the 31 application of section 407. Even if there is a differential treatment which causes prejudice, it is based on logical and acceptable considerations with a view to promote the interests of justice. The transfer or withdrawal of a case to another court or the High Court, in such circumstances, can hardly be said to result in hostile discrimination against the accused in such a case. [137A B] 49.4 only a power of transfer is being exercised by the supreme Court which is sought to be traced back to the power of the High Court under section 407. [137E] State vs Anwar Ali Sarkar, ; , distinguished. Kathi Raning Rawat vs The State of Saurashtra, , Re: Special Courts Bill, [1978] and Shukla vs Delhi Administration, ; , referred to. l Where a case is withdrawn and tried by the Court, the High Court will be conducting the trial in the exercise of its extraordinary original criminal jurisdiction. Here though the ordinary original criminal jurisdiction is vested in a subordinate criminal court or special judge, a case is withdrawn by the High Court to itself for trial. [139F, H] Madura Tirupparankundram etc. vs Nikhan Sahib, ; Kavasji Pestonji vs Rustomji Sorabji, AIR 1949 Bombay 42; Sunil Chandra Roy and another vs The State, AIR 1954 Calcutta 305; Peoples Insurance Co. Ltd. vs Sardul Singh Caveeshar and others, AIR 1961 Punjab 87 and People 's Patriotic Front vs K. K. Birla and others, [ 1984] Crl. L.J. 545, referred to. 50.2 In a withdrawn case, right of first appeal to the Supreme Court against the order passed by the High Court will be available to the accused under section 374 of the 1973 Cr. P.C., and the accused has the privilege of being tried in the first instance by the High Court itself with a right to approach the apex Court by way of appeal. The apprehension that the judgment in the trial by the High Court, will be final, with only a chance of obtaining special leave under Article 136 is totally unfounded. The Supreme Court will consider any petition presented under Article 136 in the light of the in built requirements of Article 21 and dispose it of as if it were itself a petition of appeal from the judgment. Therefore an accused tried directly by the High Court by withdrawal of his case from a subordinate court, has a right of appeal to the Supreme Court under section 374 of the Cr. The allegation of an in 32 fringement of Article 21 in such cases is, therefore, unfounded. [140B F] Sadanathan vs Arunachalam, , distinguished. 50.3 The court to which the case has been transferred is a superior court and in fact the High Court. However, the High Court Judge is not a person to whom the trial of the case can be assigned under s.7(1) of the 1952 Act. The circumstances that a much superior forum is assigned to try a case than the one normally available cannot by itself be treated as a "sufficient safeguard and a good Substitute" for the normal forum and the rights available under the normal procedure. [131G H] Surajmal Mohta vs Vishwanath Sastry, [1955] 1 SCR, referred to. 50.4 The accused here loses his right of coming up in revision or appeal to the High Court from the interlocutory and final orders of the trial court, and the right of having two courts subordinate court and the High Court adjudicate upon his contentions before bringing the matter up in the Supreme Court. Though these are not such caps as violate the fundamental rights of such an accused, they are circumstances which create prejudice to the accused and may not be Overlooked in adopting one construction of the statue in preference to the other. [132A B] 51.1 t It is true that the audi altarem partem rule is a basic requirement of the rule of law. But the degree of compliance with this rule and the extent or consequences flowing from failure to do so will vary from case to case. [168B] Nawabkhan Abbaskhan vs State, ; , referred to. In the instant case the appellant had been given no chance of being heard before the impugned direction was given and it cannot be said whether the Bench would have acted in the same way even if he had been given such opportunity. However, in the circumstances of the case. this is not a fit case to interfere with the earlier order on that ground. [167H, 168A] 51.2 The rules of natural justice must not be stretched too far. They should not be allowed to be exploited as a purely technical weapon to undo a decision which does not in reality cause substantial injustice and which, had the party been really aggrieved thereby, could live been set right by immediate action. [169C] 33 R. vs Secretary of State for Home Department ex parte Mughal, , referred to. The direction of 16.2.1984 cannot be said to have infringed the fundamental rights of the appellant or caused any miscarriage of justice. The appellant did know on 16.2.1984 that the judges were giving such a direction and yet he did not protest. Perhaps he did think that being tried by a High Court Judge would be more beneficial to him, as indeed it was likely to be. That apart, several opportunities were available for the appellant to set this right. He did not move his little finger to obtain a variation of this direction from this Court. He is approaching the Court nearly after two years of his trial by the learned judge in the High Court. Volumes of testimony have been recorded and numerous exhibits have been admitted as evidence. Though the trial is only at the stage of the framing of charges, the trial being according to the warrant procedure, a lot of evidence has already gone in and if the directions of this Court are re called, it would wipe the slate clean. To take the entire matter back at this stage to square No. 1 would be the very negation of the purpose of the 1952 Act to speed up all such trials and would result in more injustice than justice from an objective point of view. [168G H, 169A B] 52.1 Situations can and do arise where this Court may be constrained to recall or modify an order which has been passed by it earlier and that when ex facie there is something radically wrong with the earlier order, this Court may have to exercise its plenary and inherent powers to recall the earlier order without considering itself bound by the nice technicalities of the procedure for getting this done. [163C] 52.2 Where a mlstake is committed by a subordinate court or a High Court, there are ample powers in this Court to remedy the situation. But where the mistake is in an earlier order of this Court, there is no way of having it corrected except by approaching this Court. Sometimes, the remedy sought can be brought within the four corners of the procedural law in which event there can be hurdle in the way of achieving the desired result. But the mere fact that, for some reason, the conventional remedies are not available should not render this Court powerless to give relief. [163D E] Ghulam Sarwar vs Union of India, ; Soni Vrijlal Jethalal vs Soni Jadavji Govindji, AIR 1972 Guj. 148; Jang Singh vs Brij Lal ; at p. 159; Bhagat Ram vs State, ; and State vs Tara Chand, [1973] S.C.C. Cr. 774, referred to. 34 52.3 lt may not be possible or prudent to lay down comprehensive list of defects that will attract the ex debito justiae relief. [163E] 52.4 Suffice it to say that the court can grant relief where there is some manifest illegality or want of jurisdiction in the earlier order or some palpable in Justice is shown to have resulted. Such a power can be traced either to Article 142 of the Constitution or to the powers inherent in this Court as the apex Court and the guardian of the Constitution. [163F] Issac vs Robertson, referred to. 52.5 However, such power has to be exercised in the "rarest of rare" cases and there is great need for judicial discipline of the highest order in exercising such a power, as any laxity in this regard may not only impair the eminence, dignity and integrity of this Court but may also lead to chaotic consequences. Nothing should be done to create an impression that this Court can be easily persuaded to alter its views on any matter and that a larger Bench of the Court will not only be able to reverse the precedential effect of an earlier ruling but may also be inclined to go back on it and render it ineffective in its application and binding nature even in regard to subsequent proceedings in the same case. [163G H 164A] Bengal Immunity Company Ltd. vs The State of Bihar and ors., and Sheonandan Paswan vs State of Bihar & Ors., ; , referred to. The power of review is conferred on this Court by Article 137 of the Constitution. It is subject not on to the provisions of any law made by Parliament but also to rules made by this Court under article 145. [142H] The order dated 16.2.1984 does not suffer from any error apparent on the face of the record which can be rectified on a review application. The prayer for review has been made beyond the period mentioned in Rule 2 of order XL of the Supreme Court Rules. No doubt this Court has power to extend the time within which a review petition may be filed. But having regard to the circumstances of the case there is hardly any reason to condone the delay in the prayer for review. [144A B,143B,147H] The appellant was alive to all his present contentions. At least when the writ petition was dismissed as an inappropriate remedy, he should have at once moved this Court for review. [148A] 35 That apart even if the Court is inclined to condone the delay, the application will have to be heard as far as possible by the same Judges who disposed of the earlier matter. [148B] 54. It will not behove the prestige and glory of this Court as envisaged under the Constitution if earlier decisions are revised or recalled solely because a later Bench takes a different view of the issues involved. Granting that the power of review is available, it is one to be sparingly exercised only in extraordinary or emergent situations when there can be no two opinions about the error or lack of jurisdiction in the earlier order and there are adequate reasons to invoke a resort to an unconventional method of recalling or revoking the same. Such a situation is not present in the instant case. [167F G] 55. Prem Chand Garg cannot be treated as an authority for the proposition that an earlier order of this Court could be quashed by the issue of a writ on the ground that it violated the fundamental rights. Mirajkar clearly precludes such a course. [155G H] Prem Chand Garg vs Excise Commissioner, [1963] Supp. 1 SCR 885, explained and distinguished. Naresh Shridhar Mirajkar and others vs State of Maharashtra and another. relied on.

The appellant was convicted of the offence under section 66(1) (b) of the Bombay Prohibition Act, 1949, for being in possession on September 21, 1960 of bottles of two different Ayurvedic medicinal preparations con training 52.3% and 54.5% alcohol respectively. The appellant 's case that possession of the preparations by him was not in contravention of the Act, because the preparations were medicinal preparations containing alcohol which were unfit for use as intoxicating liquor within the meaning of section 24A of the Act, was rejected. The trial court held that the offending articles were Ayurvedic preparations in which alcohol was generated by a process of fermentation and as alcohol exceeded 12 per cent by volume, the preparations did not correspond with the limitations prescribed by the provision to section 59A, and therefore the exemption prescribed by section 24A was inoperative. The Court of Sessions and the High Court agreed with that view. It was also contended on behalf of the respondents that even if the two medicinal preparations corresponded with the description and limitations under section 59A, they were still preparations fit for use as intoxicating liquor and therefore outside the exemption in section 24A. HELD: The appellant was wrongly convicted and his conviction must he set aside. (i) There was clear evidence on the record that the offending preparations were not preparations in which alcohol was generated by fermentation. The proviso to section 59A Would therefore have no application. [146 E F] (ii) On the date on which the two medicinal preparations were attached in September 1960, by vitrue of sub section (7) of section 6A they were deemed for the purpose of the Act to be unfit for use as intoxicating liquor and their possession was; not an offence. A subsequent declaration by the State under section 6A(6) in October, 1960, that they were fit for use as intoxicating liquor, could not have retrospective operation, and possession which was innocent could not, by subsequent act of the State, be declared as offending the statute. [150 A] The State of Bombay vs F. N. Balsara, ; , referred to. The State of Bombay vs Narandas Mangild Agarwal & Anr. [1962] Sup. 1 S.C.R. 15, distinguished.

On November 16, 1949, the respondent was convicted under sections 38o and II4 of the Indian Penal Code. On October 5, 1957, the Deputy Commissioner of Police, Bombay, acting under section 57(1) of the Bombay Police Act passed an order externing him from the limits of Greater Bombay. Later he was prosecuted and convicted under section 142 of the Bombay Police Act by the Presidency Magistrate for returning to the area from which he was externed. On an application for revision the High Court acquitted the respondent upholding his contention that section 57 of the Bombay Police Act was not retrospective and was not applicable unless the conviction on which the externment was based took place after the Act came into force. On appeal by the appellant with the special leave of this Court it was 27 Held, that though statutes must ordinarily be interpreted prospectively unless the language makes them retrospective, either expressly or by necessary implication, and penal statutes creating new offences are always prospective, penal statutes creating disabilities though ordinarily interpreted prospectively are sometimes interpreted retrospectively when the intention is not to punish but to protect the public from undesirable persons whose past conduct is made the basis of future action. Midland Ry. Co. vs Pye, IO C.B. (N.S.) 179, Rex vs Birth whistle, (1889) 58 L.J. (N.S.) M.C. 158, Queen vs Vine, [1875] IO Q.B. 195, Ex Parte Pratt, , Bourke vs Nutt, [1898] I Q.B. 725, Ganesan vs A.K. Joscelyne, A.I.R. 1957 Cal. 33, Taher Saifuddin vs Tyebbhai Moosaji, A.I.R. 1953 Bom. 183, The Queen vs Inhabitants of St. Mary Whitechapel, ; : ; and Rex vs Austin, , considered and applied. Section 57 of the Bombay Police Act did not create a new offence but was designed to protect the public from the activities of undesirable persons convicted of particular offences and enabled the authorities to take note of their activities in order to put them outside the areas of their activities for preventing any repetition of such activities in the future. The verb " has been " as used in section 57 meant " shall have been Legislation which takes note of a convicted offender 's antecedents for restraining him from his acts cannot be said to be applied retrospectively as long as the action taken against him is after the Act comes into force. The Act in question was thus not applied retrospectively but prospectively. An externment order must be bona fide and must relate to a conviction which is sufficiently proximate in time.

% By a notification issued in 1964 under section l04 of the Rajasthan Municipalities Act, 1959, the State Government revised the rate of octroi levied on cloth by the municipal board of Abu Road which was challenged by a batch of writ petitions. A Single Judge of the High Court held that the provisions of section l04(1) of the Act were valid but the notification in respect of the municipal board of Abu Road relating to cloth was bad. During the pendency of the appeals before the Division Bench sub section (2) of section l04 was added by section 12 of the Rajasthan Municipalities (Amendment) Act of 1978. The Division Bench overlooked this amendment and reiterated the reasons of the Single Judge and dismissed the appeals. By another notification issued in 1976, the State Government revised the levy of octroi on all types of cloth in respect of Sujangarh Municipal Board which was challenged by another batch of writ petitions relying on the decision in the Abu municipal board cases; but the Single Judge, as also a different Division Bench which dealt with the matter did not entertain the challenge in view of the amended provision of section l04 of the Act. These two groups of appeals arose from the two batches of writ petitions aforesaid. Allowing the appeals preferred by the Municipal Board of Abu Road and dismissing the appeals relating to Sujangarh Municipality. ^ HELD: There is no dispute as to exigibility of octroi. Every municipality under section 7 of the Rajasthan Municipalities Act, 1959 is a body corporate. People residing within each municipal area can be classified as one group different from residing in any other municipality since octroi is to be levied by the municipality as provided in section l04(1) subject to the control regarding the rates of levy by the State Government. The plea of discrimination on the basis of the rates prevalent in another municipality cannot be entertained. The scheme in section 104 takes note of the position that local conditions and needs varied and accord 585 ingly both in the proviso to sub section (1) as also in sub section (2) itself, emphasis on that feature has been put. It is thus open to the State Government on the basis of local conditions and needs to prescribe different rates in relation to different municipalities in the matter of taxes to be levied, varying duty of octroi is, therefore, not open to challenge. The Division Bench while dealing with the appeals of Abu Road municipality should have taken note of the amendment of sub section (2) with retrospective effect. [588B E] 2. In some municipalities the levy is on the value of goods while in others it is on the basis of weight. Here again, the State Government seems to have applied its mind and has authorised charge of octroi on weight basis taking into consideration the special circumstances. In bigger municipalities where there are wholesale markets particularly of cloth. a reduced rate of octroi has been prescribed to encourage larger import. In smaller municipalities where the import is for direct consumption the levy is on ad valorem basis at a higher rate. The State Government seems to have also taken into consideration that in smaller municipalities there is not much demand for costly and fine cloth which have higher prices while the position is otherwise in bigger municipal areas. This appears to be the justification for adopting the weight basis in respect of larger municipalities and ad valorem basis for the smaller municipalities. This seems to be a legitimate basis and we do not think any valid objection is available against this differential treatment. Law is well settled that if unequals are treated unequally there is no discrimination and article 14 of the Constitution is not available to be invoked. [588E H]

In a writ petition filed under article 226 of the Constitu tion impugning his dismissal from service, the respondent contended that since he had not been given a reasonable opportunity of meeting the allegations against him, his dismissal was void. writ petition was dismissed. Thereupon, the respondent flied a suit in a civil court challenging his dismissal on the ground, among others, that since he had been appointed by the Inspector General of Po lice, his dismissal by the Deputy Inspector General of Police was wrong. The State took the plea that the suit was barred by res judicata. Dismissing the suit, the trial court held that it was not barred by res judicata. The first appellate court dismissed the respondent 's appeal. Purporting to follow a line of decisions of this Court, the High Court held that only that issue between the parties would be res judicata which was raised in the earlier writ petition and was decided by the High Court after contest and since in this case the respondent did not raise in the earlier writ petition the plea of competence of the Deputy Inspector General of Police to dismiss him. the parties were never at issue on it and that the High Court never consid ered and decided this issue in the writ petition. On the question of invoking the principle of constructive res judicata by a party to the subsequent suit on the ground that the matter might or ought to have been raised in the earlier proceedings, the High Court held that this question was left open by the Supreme Court in Gulabchand Chhotalal Parikh vs State of Bombay ; , and allowed the respondent 's appeal. Allowing the States appeal to this Court. HELD: The High Court was wrong in its view because the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in Devi Lal Modi vs Sales Tax Officer Ratlam and Others ; it was not necessary to reiterate it in Gulabchand 's case as it did not arise for consideration in that case. The clarificatory observation in Gulabchand 's case was misunderstood by the High Court in observing that the matter had been left open by this Court. The doctrine of res judicata is based on two theo ries: (i) the finality and conclusiveness of judicial deci sions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be pro tected from multiplication of litigation. [430 D] 2. (a) In certain cases, the same set of facts may give rise to two or more causes of action. In such cases res judicata is not confined to the issues which the Court is actually asked to decide but covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. This rule has sometimes been referred to as constructive res judicata which is an aspect or amplification of the general principle. [431 A] (b) Section 11 of the Code of Civil Procedure, with its six explanations, covers almost the whole field, but the section has, in terms, no application to a petition for the issue of a high prerogative writ. [431 D] (c) Although in the Amalgamated Coalfields Ltd. and others vs Janapada Sabha, ; this Court held that constructive res judicata being a special and artifi cial form of res judicata should not generally be applied to writ petitions, in Devilat Modi 's this Court held that if the doctrine of constructive 429 res judicata was not applied to writ proceedings, it would be open to a party to take one proceeding after another and urge new grounds every time, which was plainly inconsistent with considerations of public policy. The principle of constructive res judicata was, therefore, held applicable to writ petitions as well. [433 G & 434 D] 3. The High Court missed the significance of these deci sions and relied upon L. Jankirama lyer and 'Others vs P.M. Nilakanta lyer and Others [1962] Supp. 1 S.C.R. 206 which had no bearing on the controversy. In Gulabchand 's case, this Court observed that it did not consider it necessary to examine whether the principle of constructive res judicata could be invoked by a party to the subsequent suit oft the ground that a matter which might or ought to have been raised in the earlier proceeding but was not so raised therein could be raised again relying on which the High COurt concluded that the question was left open by this Court. This in turn led the High Court to hold that the principle of resjudicata could not be made applicable to a writ petition. [435 E F] In the instant case, the respondent did not raise the plea that he could not be dismissed by the Deputy Inspector General of Police. This was an important plea which was within his knowledge and could well have been taken in the writ petition. Instead he raised the plea that he was not afforded a reasonable opportunity of meeting the case in the departmental inquiry. It was therefore not permissible for him to take in the subsequent suit the plea that he had been dismissed by an authority subordinate to that by which he was appointed. That was clearly barred by the principle of constructive res judicata and the High Court erred in taking a contrary view. [436 A B]

iminal Appeal No. 37 of 1960. Appeal by special leave from the judgment and order dated the April 7, 1958, of the Punjab High Court (Circuit bench) at Delhi in Criminal Writ No. 57 D of 1957. M. C. Setalvad, Attorney General of India, B. Sen and T. M. Sen, for the appellants. H. L. Anand and Janardan Sharma, for respondent. April 4. The Judgment of the Court was delivered by 94 746 SARKAR, J. This is an appeal by the Union of India from a judgment of the High Court of Punjab allowing the respondent 's application under article 226 Of the Constitution for a writ quashing an order made against him on January 29, 1958, under section 3(2)(c) of the . That order was made by the Chief Commissioner of Delhi and was in these terms: "The Chief Commissioner of Delhi is pleased to direct that Mr. Ghaus Mohd. . a Pakistan national shall not remain in India after the expiry of three days from the date on which this notice is served on him. . . The order was served on the respondent on February 3, 1958. The respondent did not comply with that order but instead moved the High Court on February 6, 1958, for a writ to quash it. The High Court observed that "There must be prima facie material on the basis of which the authority can proceed to pass an order under section 3(2)(c) of the . No doubt if there exists such a material and then the order is made which is on the face of it a valid order, then this Court cannot go into the question whether or not a particular person is a foreigner or, in other words, not a citizen of this country because according to Section 9 of the , this question is to be decided by a prescribed authority and under the Citizenship Rules, 1956, that authority is the Central Government. " The High Court then examined the materials before it and held, "in the present case there was no material at all on the basis of which the proper authority could proceed to issue an order under Section, 3(2)(c) of the ." In this view of the matter the High Court quashed the order. It was contended on behalf of the Union of India that section 9 of the , had no application to this case. We think that this contention is correct. That section deals with the termination of citizenship of a citizen of India in certain circumstances. It is not the Union 's case nor that of the respondent that the latter 's citizenship came to an end 747 for any of the reasons mentioned in that section. The reference to that section by the High Court for the decision of the case, was therefore not apposite. That section had no application to the facts of the case. Section 2(a) of the , defines a "foreigner" as "a person who is not a citizen of India Sub section (1) of section 3 of that Act gives power to the Central Government by order to provide for the presence or continued presence of foreigners in India. Sub section (2) of section 3 gives express power to the Government to pass orders directing that a foreigner shall not remain in India. It was under this provision that the order asking the respondent to leave India was made. There is no dispute that if the respondent was a foreigner, then the order cannot be challenged. The question is whether the respondent was a foreigner. Section 8(l) of the to which we were referred, deals with the case of a foreigner who is recognised as its national by more than one foreign country or when it is uncertain what his nationality is. In such a case this section gives certain power to the Government to decide the nationality of the foreigner. Sub section (2) of this section provides that a decision as to nationality given under sub sec. (1) shall be final and shall not be called in question in any court,. We entirely agree with the contention of the Union that this section has no application to this case for that section does not apply when the question is whether a person is a foreigner or an Indian citizen, which is the question before us, and not what the nationality of a person who is not an Indian citizen, is. Section 9 of this Act is the one that is relevant. That section so far as is material is in these terms: Section 9. "If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner. . the onus of proving that such person is not a foreigner . shall, notwithstanding anything contained in 'the (1 of 1872), lie upon such person. " 748 It is quite clear that this section applies to the present case and the onus of showing that he is not a foreigner was upon the respondent. The High Court entirely overlooked the provisions of this section and misdirected itself as to the question that arose for decision. It does not seem to have realised that the burden of proving that he was not a foreigner, was on the respondent and appears to have placed that burden on the Union. This was a wholly wrong approach to the question. The question whether the respondent is a foreigner is a question of fact on which there is a great deal of dispute which would require a detailed examination of evidence. A proceeding under article 226 of the Constitution would not be appropriate for a decision of the question. In our view, this question is best decided by a suit and to this course neither party seems to have any serious objection. As we propose to leave the respondent free to file such a suit if he is so advised, we have not dealt with the evidence on the record on the question of the respondent 's nationality so as not to prejudice any proceeding that may be brought in the future. We think, for the reasons earlier mentioned, that the judgment of the High Court cannot be sustained and must be set aside and we order accordingly. On behalf of the Union of India the learned Attorney General has stated that the Union will not take immediate steps to enforce the order of January 29, 1958, for the deportation of the respondent so that in the meantime the respondent may if he so chooses, file a suit or take any other proceeding that he thinks fit for the decision of the question as to whether he is a foreigner. In the result the only order that we make is that the order and the judgment of the high Court are set aside. Appeal allowed.

An order had been made under section 3(2)(C) Of the , directing that the respondent, "a Pakistan national 745 shall not remain in India after the expiry of three days". The respondent moved the High Court of Punjab under article 226 of the Constitution to quash the order contending that he was not a Pakistan national. The High Court held that if there was Prima facie material to show that a person was a foreigner, a civil court would not go into the question whether he was a foreigner for under section 9 of the , that question had to be decided by the prescribed authority which under the Rules framed under the Act, was the Central Government. The High Court came to the conclusion that there was no Prima facie material on the basis of which an order under section 3(2)(C) Of the could be passed against the respondent and in that view quashed the order. On appeal by the Union of India by special leave, Held, that section 9 of the dealt with the termi nation of the citizenship of an Indian citizen and had no application to this case as the Union did not contend that the respondent had been an Indian citizen whose citizenship had terminated. Section 8 of the which made the decision` of the Central Government on a question of the nationality of a foreigner who is recognised as its national by more than one foreign country or when it is uncertain what his nationality is final, also did not apply as the only question in this case was whether the respondent was a foreigner or an Indian Citizen. The case was governed by section 9 of the under which when a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner is on that person. The High Court was in error In placing on the Union of India the burden of proving that the respondent was a foreigner.

The petitioner was a Deputy Inspector of Schools and a member of the Education department of the respondent State. On September 2, 1953, the Director of Public Instruction passed an order directing a censure to be recorded in the character roll of the petitioner. On March 5, 1960, he was reverted to the Lower Division of the Subordinate Educational Service, as a result of an inquiry into certain charges. He filed a suit challenging the two orders. On August 5, 1961, the Munsiff passed an order restraining the respondent from enforcing the order dated March 5, 1960. On April 3, 1962, the temporary injunction was vacated by the Subordinate Judge. On April 11, 1963, the suit was decreed and the respondent was prohibited from enforcing the order dated March 5, 1960. This decree was set aside in appeal by the Subordinate Judge on June 24, 1964, and the petitioner 's second appeal was dismissed by the High Court on February 11, 1965. On August 5, 1966, the Director of Public Instruction passed an order that the petitioner 'having not been on his duties for more than five years since March 1, 1960 has ceased to be in Government employ since March 2, 1965 under r. 76 of the Bihar Service Code. ' The petitioner having completed 58 years of age addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arrange for the payment of her. pension, and on June 12, 1968 the Director of Public Instruction passed orders stating that under r. 46 of the Bihar Pension Rules he was not entitled to any pension. The petitioner filed the present writ petition under article 32 challenging the various orders. HELD: (1) No relief could be granted in respect of the orders dated September 2, 1953 and March 5, 1960, as, (a) they were already covered by the decision of the High Court in second appeal. (b) no relief could be granted with respect to an order passed as early as 1953; and (c) the orders did not infringe any fundamental rights of the petitioner. [652G H 653A B] (2) The order dated August 5, 1966, declaring, under r. 76 of the Service Code that the petitioner had ceased to be in Government service should be set aside. [653 A B] (a) The essential requirement for taking action under the said rule is that the government servant should have been continuously absent from duty for over five years. Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years. Admittedly the petitioner, in the present case, was on duty till March 10, 1960 and he ceased to attend to his duty only from March 635 11, 1960. Therefore, the order stating that he 'ceased to be in government employ on March 2, 1965, was on the face of it erroneous. ' [643C D, E; 644A C] (b) Assuming that the order should be read that the petitioner was not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966 the date of the order even then, the order would be illegal. From August 5, 1961, the date of temporary injunction granted by the Munsiff till April 3, 1962, when that order was vacated by the Subordinate Judge, the Department did not allow the petitioner to join duty in the senior post in spite of several letters written by him. Again on April 11, 1963 when the Munsiff granted a decree in favour of the petitioner, the respondent did not obtain any stay order from the appellate court, and so, the decree of the trial court was in full force till it was set aside in appeal on June 24, 1964. During that period, that is, from April 11, 1963 to June 24, 1964 the petitioner wrote several letters requesting the respondent to permit him to join duty in the senior grade, but the respondent did not permit him to do so. Therefore, there was no question of the petitioner being continuously absent from service for over 5 years during the period referred to when he was willing but the respondent did not allow him to serve, and hence, r. 76 of the Service Code was not applicable. [644E F; 645A D,G; 646D H; 647A B,E F] (c) Even if the r. 76 was applicable and it was a question of automatic termination of service, article 311 applies to such cases also. According to the respondents a continuous absence from duty for over five years apart from resulting in the forfeiture of the office also amounts to misconduct under r. 46 of the Pension Rules disentitling the office to receive pension. The respondent did not give an opportunity to the petitioner to show cause against the order proposed. Hence there was violation of article 311. [647GH ; 648D E] Jai Shankar vs State of Rajasthan, ; , followed. (3) The order dated June 12, 1968 stating that under r. 46 of the Pension Rules the petitioner was not entitled to any pension should also be set aside. [649C] Payment of pension under the rules does not depend upon the discretion of the State Government but is governed by the rules and a government servant, coming within those rules is entitled to claim pension. Under r. 46 a Government servant dismissed or removed for misconduct, insolvency or inefficiency is not eligible for pension. In the present case it was contended that the petitioner 's absence for over five years, amounted to misconduct and inefficiency in service. But when the order dated August 5, 1966 has been held to be illegal then the order dated June 12, 1968 based upon it also falls to the ground. [649B C;D H;65OA B] (4) The grant of pension does not depend upon any order. It is only for the purpose of quantifying the amount having regard to the service and other allied matters that it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of any such order but by virtue of the rules. The right of the petitioner to receive pension is property under article 31(1) and by a mere executive order the State had no power to withhold it. Similarly, the said claim is also property under article 19(1) (f). It, therefore follows, that the order dated June 12, 1968 denying the petitioner the right to receive pension affected his fundamental right and as such the writ petition was maintainable. [650G H; 652B C, D F] K. R. Erry vs State of Punjab, I.L.R. [1967] Punjab & Haryana 279, (F.B) approved. 636 (5) The bar against the Civil Court entertaining any suit relating to the matters under the Pension Act does not stand in the way of a writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.

Nine persons including K instituted a suit for ejectment and recovery of rent against two defendants and obtained a decree, but on appeal, the District judge set aside the decree against defendant No. 2. The plaintiffs then filed a second appeal in the High Court on February 29, 1952, and while the appeal was pending K died on September 8, 1955. No application for bringing his legal representatives on the record was, however, made within the prescribed time, and the appeal abated so far as K was concerned. When the appeal of the appellants other than K came up for hearing on September 1, 1958, a preliminary objection was taken for the respondents that the entire appeal had abated on the ground that the interest of the surviving appellants and the deceased appellant were joint and indivisible and that in the event of the success of the appeal there would be two inconsistent and contradictory decrees. The appellants claimed that the appeal was maint. ainable on the grounds that the surviving appellants could have filed the appeal against the entire decree in view of the provisions of O. 41, r. 4, of the Code of Civil Procedure, that they were, therefore, competent to continue the appeal even after the death of K and the abatement of the appeal so far as he was concerned, and that the Court could have reversed or varied the whole decree in favour of all the original plaintiffs and could have granted relief with respect to the rights and interests of K as well. Held (1) that the provisions of r. 4 of 0. 41 of the Code of Civil Procedure were not applicable, since the second appeal in the High Court was not filed by anyone or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and the surviving appel 550 lants could not be said to have filed the appeal as representing K. (2) that an appellate court had no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. 41, r. 4, of the Code of Civil Procedure, when the decree proceeded on a ground comm. on to all the plaintiffs or defendants, if all the plaintiffs or the defendants appealed from the decree and any of them died and the appeal abated so far as he was concerned under O. 22, r. 3. Ramphal Sahu vs Babu Satdeo Jha, I.L.R. 19 Pat. 870; Amin Chand vs Baldeo Sahai Ganga Sahai, I.L.R. ; Baij Nath vs Ram Bharose, I.L.R. 1953 (2) All. 434; Nanak vs Ahmad Ali, A.I.R. 1946 Lah. 399; Pyarelal vs Sikhar, Chand, I.L.R. 1957 M.P. 21; Raghu Sutar vs Narusingha Nath, A.I.R. 1959 Orissa 148 ; Venkata Ran Rao vs Narayana, A. I.R. and Sonahar Ali vs Mukbul Ali, A.I.R. 1956 Assam 164, approved. Shripad Balwant vs Nagu Kusheba, I.L.R. ; Satula Bhattachariya vs Asiruddin Shaikh, I.L.R. and Somasundaram Chettiar vs Vaithilinga Mudaliar, I.L.R. , disapproved. (3) that the provisions of O. 41, r. 33 were 'not applicable since the appeal by the surviving appellants was not competent in the circumstances of the case. Mohomed KhaleeJ Shirazi & Sons vs Lee Tanneries 53 I.A. 84, relied on.

The appellant was born in India before the partition. He left for Pakistan and returned to India in 1953 on a Pakistani passport and Indian visa. He did not return to Pakistan before the expiry of the period for which he was permitted to stay in India under the visa. He was convicted for a breach of paragraph 7 Of the Foreigners Order, 1948, which required every "foreigner" entering India to depart from India before the expiry of the period during which he was authorised to remain in India. Held, that the appellant was not a foreigner on the date of his entry into India and his conviction was bad. On the relevant date the appellant was a natural born British subject within section 1(1)(a) of the British Nationality and Status of Aliens Act, 1914, and consequently was not a foreigner as defined in section 2(a) of the , as it then stood.

The respondent was appointed on 15.7.1962 as a Chemistry lecturer in Kulohaskar Ashram Agriculture Intermediate College run by the appellant society. By a communication dated 20.6.1963, he was informed by the management that his services were no longer required after 15.7.1963. He filed a civil suit for permanent injunction restraining the manage ment from proceeding with the proposed action. But the management having withdrawn the letter, he withdrew the suit as having become infructuous. However on 28.8.1964, the respondent was placed under suspension whereupon he again filed a civil suit for a declaration that the order of suspension was illegal. The trial court dismissed the suit but the first appellate court allowed the appeal and decreed the suit as prayed for. On appeal the High Court affirmed that decision, on 9.4.69. During the pendency of the appeal before the High Court, the management appellant had passed a fresh order suspending the respondent pending enquiry on certain allegations. The respondent again filed a civil suit to challenge the competency of the managing committee to take action against him. In the said suit he also pleaded that the prior approval of the District Inspector of Schools having not been taken, the order placing him under suspen sion was bad. The Munsiff Court accepted the suit and de clared the suspension order as illegal and void. The first appellate court reversed that order and the respondent preferred second appeal to the High Court. During the pendency of the respondent 's second appeal, U.P. Secondary Educational Laws (Amendment) Act, 1976 came into force from 18.8.76 which inter alia provided that prior approval of the District Inspector of School was necessary before any action could be taken against teaching staff of a college. The respondent sought to amend the pleadings of second appeal in consonance with the Act but 451 the High Court declined but he succeeded on this question before this Court. Contemporaneously with the litigation set out above, the respondent filed a suit for recovery of arrears of salary, past pendente lite and future. It was claimed for the period between 21.2.1964 and 20.2.1967. The trial court decreed the suit for Rs.7812/92 p. being the arrears of salary for the period of three years. The management appealed to the Dis trict Court and the respondent filed cross objection. As stated earlier, the second appeal preferred by the respond ent was pending in the High Court. Hence the parties moved the High Court for withdrawing the appeal pending before the District Court for being disposed of alongwith the second appeal No. 2038/1970, which request was accepted and the said appeal came to be registered as First Appeal No. 460 of 1982. The High Court disposed of both the appeals by a common judgment whereby the second appeal was dismissed and the finding as to the validity of the suspension order was confirmed. However the First Appeal was allowed and the decree of the trial court was reversed and a suit for ar rears of salary filed by the respondent was dismissed. The respondent appealed to this Court and his appeal was allowed and his claim to salary between 20.2.1964 to 15.1.1966 was settled at Rs. 10,000 and the court further held that the order of suspension ceased to be operative w.e.f. 17.10.1975. Thereafter the respondent on May 18, 1986 moved the High Court under Article 227 of the Constitution for a writ of Mandamus against the State of U.P. and the management of the College for his reinstatement in service and for payment of entire arrears of salary. The High Court accepted the writ petition and granted him the relief asked for. Hence these appeals by the Management of the school and the State of U.P. Allowing the appeals, this Court, HELD: Indeed, the reinstatement would be an unwise move from any point of view. In educational institutions, the Court cannot focus only on the individual. The Court must have regard to varying circumstances in the academic atmos phere and radically changed position of the individual sought to be reinstated. The court must have regard to interests of students as well as the institution. [459E] In the instant case, during the gap of twenty five years, the respondent must have clearly lost touch with Chemistry as well as the 452 art of teaching. It must have been also deeply buried and disintegrated under the new acquisition of his legal knowl edge. Reinstatement of such a person seems to be unjustified and uncalled for. [459G] Legal profession may not be considered as an employment but the income from profession or avocation if not negligi ble, cannot be ignored while determining damages or back wages for payment. [463G] In a case like this. the Government cannot be saddled with the liability to make payment. There is no relationship of master and servant between Government and respondent and such relationship existed only between the management and respondent. So far as statutory liability to pay salary to teacher is concerned, the Government has been paying salary to Dr. Gopendra Kumar who has since been appointed as Lec turer in the place of the respondent. Therefore, the manage ment alone should pay the amount ordered. [464D E] Vaish Degree College vs Lakshmi Narain, ; G.R. Tiwari vs District Board, Agra and Anr., ; , 59; The Executive Committee of U.P. Warehousing Corpo ration Ltd. vs Chandra Kiran Tyagi, ; , 265; Bank of Baroda vs Jewan Lal Mehrotra, and Sirsi Municipality vs Kom Francis, ; ; Smt. J. Tiwari vs Smt. Jawala Devi Vidya Mandir & Ors., ; ; Deepak Kumar Biswas vs The Director of Public Instruc tions, ; Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvaran Jayanti Mahotsav Samarak Trust & Ors. V.R. Rudani & Ors., ; at 697; TrilokChand Modichand & Ors. vs H.B. Munshi & Anr., ; Maimoona Khatun & Anr. vs State of U. P. & Anr. , ; ; Managing Director U.P. Warehousing Corporation & Anr. vs Vinay Narain Vajpayee, ; ; Maharaja Sayajirao University of Baroda & Ors. vs R.S. Thakur, AIR 1968 SC 2112 and S.M. Saiyad vs Baroda Municipal Corpora tion, [1984] Supp. SCC 378, referred to.

The appellant instituted a suit for the recovery of money against the respondents in a Court in Gwalior State in May 1947. The respondents who were residents in U. P. did not appear before the court and in November 1948 the Gwalior Court passed an ex partc decree. On September 14, 1951, the Gwalior Court transferred the decree for execution to Allahabad, and on October 16, 1951, the appellant filed an application for execution of the decree before the Allahabad Court. The respondents contended that the decree being a decree of a Foreign Court to whose jurisdiction they had not submitted was a nullity and the execution application in respect thereof was not maintainable. Held, that the decree was not executable at Allahabad. Per Kapur, Ayyangar and Mudholkar, JJ.The decree of the Court in Gwalior State sought to be executed was a foreign decree which not change its nationality inspite of subsequent constitutional changes or amendments in the Code of Civil Procedure. On the day on which it passed the decree the Gwalior Court was a foreign Court within the meaning of section 2 (5) of the Code. None of the conditions necessary to give its judgment extra territorial validity existed (i) the respondents were not the subjects of Gwalior; (ii) they were not residents in Gwalior at the time the suit was filed, (iii) they were not temporarily present in gwalior when the process was served upon them, (iv) they did not select the forum which passed the decree against them, (v) they did not voluntarily appear before the court, and (vi) they had not contracted to submit to the jurisdiction of the 579 by the Indian Code, was a different court from that which passed the decree under the Local Code, and was not the court. which passed the decree within the meaning of section 39. Sections 37 to 42 of the Code deal with execution of decree., passed by the courts governed by the Indian Code. The decree could not be executed under the provisions of section 43 of the Code at any time. After its adaptation in June 1950, section 43 applied to "a decree passed by a Civil Court in a Part B State". There were no Part B States at the time when the decree was passed and these words could not be read as "a decree passed by a civil court in what became a Part B State". Nor could the decree be executed under section 44 as that section was also inapplicable to this decree. Article 261 (3) which provides that the final judgments or orders of Civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory is inapplicable to the decree of the Gwalior court as the, provision is prospective and not retrospective. Per Sarkar and Das Gupta, JJ. Even in the decree passed by Gwalior Court was not a foreign decree the Allahabad Court had no power to execute it either under section 38 or under sections 43 or 44 of the Code of Civil Procedure. Section 38 provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. The Allahabad Court was not the court which passed the decree. Section 39 empowers the court which passed the decree to transfer it for execution to another court. The word "court" in the phrase "court which passed the decree" in section 39 contemplates only courts governed by the Indian Code of Civil Procedure. The Gwalior ,.Court which was governed by the Gwalior Code when it passed the decree had a distinct identity from the court at Gwalior after it came to be governed by the Indian Code. The Court which transferred the decree was accordingly not the court which passed the decree and the order of transfer was not a valid order. Section 43 of the Code provided for the execution of decrees passed by the Civil Courts in places where the Indian Code did not extend. The decree of the Gwalior Court did not fall within this section as it stood before the Constitution. A, After the adaptation in 1950 the section applied to a decree passed "by a Civil Court in a Part B State". These words could not be read as "by a civil court in an Indian State which has later been included in a Part B State". The Gwalior Court which passed the decree was not a Civil Court in a Part B State. 'Section 44 was equally inapplicable to the decree,. The section after adaptation in 1950 580 applied only to decrees of revenue courts. Before the adap tation it could apply only if there was a notification issued by the U. P. Government but no such notification was issued.

The appellant was appointed on probation as the Principal of the Model Inter College, Thora on August, 28, 1967. His period of probation was extended by one year and thereafter by a letter dated June 30, 1969 addressed to him with a copy of a resolution dated 27th April, 1969 passed by the Managing Committee wherein various allegations were made regarding his conduct, his services were terminated by the respondent. Aggrieved by the said orders of termination of his services, the appellant filed a writ petition No. 4823 of 1970 on the file of the High Court of Allahabad. The said writ petition was allowed on January 23, 1973 and the order of termination was quashed. However, the special Appeal No. 31 of 1973 filed by Respondent was accepted and allowed by the Division Bench. Hence the appeal by special leave of the Court. Allowing the appeal, the Court, ^ HELD: 1. Section 16 of the Uttar Pradesh Intermediate Education Act, (Act II of 1921) provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and that the Regulations inter alia may be made in respect of the period of probation, the conditions of confirmation and the procedure for the imposition of punishment Regulations 35 to 38 relate to the procedure to be followed before imposing the punishment of dismissal or removal from service and they being virtually the same as provided by Article 311(2) of the Constitution, the principles which should govern this instant case should therefore be the same as those underlying Article 311(2). Admittedly here no enquiry was held as provided for in Regulation 35 and 36. Therefore the non compliance with the 753 provisions of Section 16 of the Act and Regulations 35 to 38 vitiates the termination order. [747F G; 759G; 760E] Parshotam Lal Dhingra vs Union of India [1958] S.C.R. 828; Shamsher Singh and Anr vs State of Punjab. ; ; Anoop Jaiswal vs Government of India and Anr. ; ; referred to. If the order of termination carried a stigma it has to fall to the ground unless it is preceded by an enquiry as contemplated by law. A reading of the letter of termination of the service and the resolution which forms part of that letter clearly shows that they bear a mark of disgrace and infamy and the appellant is visited with evil consequences. The order of the Division Bench is therefore unsustainable. [762D E]. [The Court declared that the appellant continues to be in the service of the College with entitlement to all consequential benefits including the salary and allowances as if there was no break in his service.] [762G]

The appellant filed a suit for evicting his tenant Bhagwandas Kanu etc. after giving them a notice to quit. The Trial Court dismissed the suit but on appeal, the First Appellate Court passed a decree for eviction against the respondents. In second appeal before the High Court, the respondents assailed the validity of the notice to quit, on the ground that it did not conform with the requirements of section 106 of the Transfer of Property Act. The High Court allowed the appeal holding that the notice to quit did not clearly terminate the tenancy on the expiration of the, month of the tenancy, and was invalid. Allowing the appeal by special leave, the Court, HELD: A notice to quit must be construed ut res magis valeat quam pereat. It must not be read in a hyper critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it should be construed in a common sense, way. The notice to qui re quired the respondents to vacate "within the month of Octo ber 1962", otherwise they would be treated as trespassers from 1st November, 1962. This makes the intention of the authors of the notice clear that they were terminating the tenancy only with effect from the end of the month of October 1962 and not with effect from any earlier point of time during the currency of that month. Sidebotham vs Holland ; Harihar Banerji vs Ramsashi Roy 45 I.A. 222, applied.

ons Nos. 93 and 125 of 1959. Petitions under article 32 of the Constitution of India for enforcement of Fundamental Rights. V. M. Limaye, E. Udayarathnam and section section Shukla, for the petitioners. 734 H.N. Sanyal, Additional Solicitor General of India, R. Ganapathy Iyer and D. Gupta, for the respondent. W. section Barlingay and A. G. Ratnaparkhi, for the Interveners. April 4. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. These two writ petitions have been filed under article 32 of the Constitution and they seek to challenge the validity of the Bombay Tenancy and Agricultural Lands Act 99 of 1958 (hereafter called the Act). The impugned Act in substance is intended to extend to Vidarbha region and Cutch area which had then become a part of the Greater Bi Lingual State of Bombay the provisions of the Bombay Tenancy and Agricultural Lands (Amendment) .Act, 1956 (Act XIII of 1956). The preamble to the impugned Act shows that it was intended to amend the law relating to tenancies of agricultural lands and sites used for allied purposes in the two areas of the State of Bombay and to make certain other provisions in regard to those lands. In extending the provisions of the earlier Bombay Act XIII of 1956 to the two areas the legislature has conformed to the pattern set up by the said earlier Act. The policy underlying the Act and the object intended to be achieved by it are the same and the method adopted in achieving that object is also the same. The validity of the earlier Bombay Act (XIII of 1956) was challenged before this Court in Sri Ram Ram Narain Medhi vs The State of Bombay (1) but the challenge failed and the Act was held to be constitutional. One of the points which arose for decision in that case was whether the impugned Act was protected by article 31A(2)(a) of the Constitution, and the answer to that question depended upon the determination of another issue which was whether the lands to which the said Act applied were an "estate" as required by article 31A(2)(a). In dealing with that question this Court held that the word "estate" as defined by section 2(5) of the Bombay Land Revenue Code, 1879, clearly applied to the lands (1) [1959] Supp. 1 S.C.R. 489. 735 covered by the Act and so article 31A(2)(a) was applicable. Having regard to this decision the only point which Mr. Limaye attempted to raise before us in support of the two writ petitions is that the lands belonging to the two petitioners are not an "estate" within the meaning of article 31A(2)(a), and so the impugned Act is outside the protection of article 31A. If this contention is not upheld then it is obvious that( the writ petitions must fail; if the said contention is upheld then of course the other contentions raised by the two writ petitions against the validity of certain specific provisions of the Act may fall to be consi dered. The two petitioners are Namdeorao Baliramji and Mahadeo Paikaji Kolhe respectively. The first one resides at Amraoti and the second at Yeotmal. The first owns about 80 acres dry lands situated in Amraoti out of which 43 acres are under his personal cultivation and the rest in the possession of the tenants. The second petitioner owns about 1168 acres dry lands situated in Yeotmal out of which 400 acres are under his personal cultivation and the rest with the tenants. The lands in both the cases are charged to the payment of land revenue. The case for both the petitioners is that the lands thus held by them are not an "estate" within the meaning of article 31A(2)(a). Article 31A(2)(a) provides, inter alia, that the expression "estate" shall in relation to any local area have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area. The existing local law, it is common ground, is the Madhya Pradesh Land Revenue Code, 1954 (II of 1955), and so it is necessary to find whether the lands belonging to the petitioners can be said to be an 'estate ' within the meaning of the said Code. Before we do so, however, it may be pertinent to refer to the relevant definitions in the impugned Act. Section 2(17) of the Act defines land as meaning, inter alia, land which is used or capable of being used for agricultural purposes and includes the sites of farm buildings appurtenant to such land. Section 2(18) defines a land holder as meaning a 736 tenure holder whom the State Government has declared on account of tile extent and value of the, land or his interests therein to be a land holder for the purposes of this Act. Now,s.27 of the Madhya Pradesh Land Revenue Code in question defines a holding as meaning, inter alia,a parcel of land separately assessed to land revenue,and section 2(20) defines a tenure holder as meaning a person holding from the State Government as a Bhumiswami or a Bhumidari. Chapter XII of the Code deals with tenure holders. Section 145 provides that there, shall be two classes of tenure, holders of lands held from the State, namely, Bhumiswami and Bhumidhari. Section 146 deals with Bhumiswami. It provides that "every person who at the coming into force of this Code belongs to any of the classes specified in clauses (a) to (f) of the said section shall be called a Bhumiswami and shall have all the rights and is subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code". Amongst these classes is the class covered by el. (e) which relates to persons in respect of lands held by them as occupants in Berar. Thus reading the relevant definitions along with the provisions of section 146 of the Code it would follow that the land in the possession of the Bhumiswami who is a tenure holder is in substance all estate. It is true that the word "estate" as such has not been employed in the Code, but it must be borne in mind that article 31A(2)(a) refers not only to estate but also to its local equivalent. It was realised that in many areas the existing law relating to land tenures may not expressly define all estate as such though the said areas had their local equivalents described and defined. That is why the relevant provision of the Constitution has deliberately used both the word "estate" as well as its local equivalent". The petitioners hold lands under the State and they pay land revenue for the, lands thus held by them. Therefore, there is no difficulty in holding that under the existing law relating to land tenures the lands held by them fill within the class of the local equivalents of the word "estate" as contemplated by 737 article 31A(2)(a). If that is so the contention raised by Mr. Limaye that the impugned Act is not protected by article 31A cannot succeed. As we have already indicated it is not disputed that if article 31A applies there can be no further challenge to the validity of the impugned statute. The writ petitions accordingly fail and are dismissed with costs one SEt of hearing costs. Petitions dismissed.

The petitioners challenged the constitutional validity of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, which extended the provisions of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956, to Vidarbha and Kutch. That Act was declared valid by this Court in Sri Ram Narain Medhi vs The State of Bombay, [1950] Supp. 1 S.C.R. 489, and one of the reason , for doing so was that the lands covered by that Act fell within the definition of the word 'estate ' contained in the Bombay Land Revenue Code, 1879. The lands in question in the present petitions were situated in Amraoti and Yeotmal and the existing law relating to land tenures in force in that area was the Madha Pradesh Land Revenue Code, 1954. This Code did not employ the word ,estate ' and it was contended by the petitioners that the impugned Act was not within the protection of article 31A of the Constitution. Held, that the contention must fail. Although the Madhya Pradesh Land Revenue Code, 1954, did not employ the word 'estate ', the relevant definition contained in sections 2(17) and 2(18) of impugned Act and sections 2(7), 2(20) of the Code read with sections 145 and I46 thereof leaves no manner of doubt that the lands in the possession of the petitioners were tenures and in substance ,in estate. Since the petitioners held the lards tinder the State and paid land revenue for them, the lands fell within the class of local equivalents of the word 'estate. ' as contemplated by article 31A(2)(a) of the Constitution.

The petitioners were dealers carrying on business in the City of Madras in the sale and purchase of yarn. The dealers in the State of Andhra used to place orders for the purchase of yarn with the petitioners in Madras, where the contracts were concluded and the goods were delivered ex godown at Madras and thereafter despatched to the purchasers who would take delivery of them within their State. The present dispute related to sales in which property in the goods sold passed outside the State of 1423 Andhra, but the goods themselves were actually delivered as a result of the sale for consumption within that State. After the coming into force of the Constitution of India the President in the exercise of the powers conferred by article 372(2) made Adaptation Orders with reference to the Sales Tax Laws of all the States, and as regards the Madras General Sales Tax Act, 1939, he issued an Amendment inserting a new section, section 22 in that Act, which was a verbatim reproduction of the Explanation to article 286 (i)(a) of the Constitution. Oil July 13, 1954, the Board of Revenue (Commercial Taxes) in the State of Andhra, acting on the decision in The State of Bombay and another vs The United Motors (India) Ltd., and others; , , called upon dealers in the State of Madras to submit returns of their turnover of sales in which goods were delivered in the State of Andhra for consumption. Thereupon they filed the present petitions under article 32 Of the Constitution challenging the demand on the grounds, inter alia, that the sales proposed to be taxed were inter State sales and that they were immune from taxation under article 286(2) Of the Constitution. While the petitions were pending the Supreme Court pronounced on September 6, 1955, its judgment in The Be gal Immunity Company Limited vs The State of Bihar and others, [1055] 2 S.C.R. 603, according to which the petitioners were not liable to be taxed. But before final orders were passed on the petitions Parliament passed Sales Tax Laws Validation Act, 1956, section 2 whereof provided that no law of a State imposing or authorising the imposition of tax on inter State sales during the period between April 1, 1951, and September 6, 1955, shall be deeme to be invalid or ever to have been invalid merely by reason of the fact that the sales took place in the course of the inter State trade. That section further provided that taxes levied or collected on such sales during the aforesaid period shall be deemed to have been validly levied or collected. It was the con tention of the State of Andhra that by reason of the aforesaid provision it had the right to impose tax on inter State sales during the aforesaid period. On the other hand the petitioners contended, inter alia, that (I) section 22 Of the Madras General Sales Tax Laws Validation Act, 1956, which gave validity to laws which imposed a tax, did not authorise the imposition, (2) the Sales Tax Laws Validation Act was ultra vires article 286(2), (3) section 22 of the Madras Act was not a "law of a State" within article 286(2) and section 2 of the impugned Act, (4) the impugned Act only validated levies already made and did not authorise the initiation of fresh proceedings for imposing tax, (5) section 22 having been unconstitutional when it was enacted and therefore void, no proceedings could be taken thereunder on the basis of the Validation Act, as the effect of unconstitutionality of the law was to efface it out of the statute book, and (6) the proposed levy was bad as infringing the Rule which provided that the sale of yarn could be taxed only at one point. It was also contended that under the Constitution it was only the Parliament that has the competence to impose tax on inter State sales and that the Sales Tax Laws Validation Act 1424 was bad in that it gave validity, to the laws of the State to impose the tax : Held (Sarkar J. dissenting), that section 22 of the Madras General Sales Tax Act, 1939, did in fact impose a tax on the class of sales covered by the Explanation to article 286(1)(a) but that it was conditional on the ban enacted on article 286(2) being lifted by law of Parliament as provided therein, and that it was therefore validated by section 2 of the Sales Tax Laws Validation Act, 1956. The construction put upon the Explanation to article 286(1)(a) of the Constitution in The Bengal Immunity Company case that it merely prohibited the outside States from imposing a tax on the class of sales falling within the Explanation and did not confer on the delivery State any power to impose a tax on such sales has no application to a taxing statute of a State the object of which was primarily to confer power on the State to levy and collect tax. Section 22 and section 2(h) of the Madras General Sales Tax Act must be read together as ' defining the sales which are taxable under the Act. Mettur Industries Ltd. vs State of Madras, A.I.R. 1957 Mad. 362, The Mysore Spinning and Manufacturing Co. Ltd. vs Deputy Commercial Tax Officer, Madras, A.I.R. 1957 Mad. 368 and Dial Das vs P. section Talwalkay, A.I.R. 1957 Bom. 71, approved. Mathew vs Travancore Cochin Board of Revenue, A.I.R. 1957 T. C. 300, Cochin Coal Co. Ltd. vs The State of Travancore Cochin, (1956) 7 Sales Tax Cases 731 and The Government of Andhra vs Nooney Govin arajulu, (1957) 8 Sales Tax Cases 297, disapproved. Queen vs Burah, (1878) 5 I.A. 178 and In Ye The , etc. ; , relied on : Held (Per section R. Das, C. J., Venkatarama Aiyar, section K. Das and Vivian Bose, JJ.) that (i) the Sales Tax Laws Validation Act, 1956, is in substance one lifting the ban on taxation of interState sales and is within the authority conferred on Parliament tinder article 2 6(2) and further that under that provision it was competent to Parliament to enact a law with retrospective operation. Punjab Province vs Daulat Singh, (1946) L.R. 73 I.A. 59, distinguished. The United Province vs Atiqa Bcgum, , (2) the Adaptation Order made by the President under article 372(2) is valid and is not open to attack on the ground that it goes beyond the limits contemplated by that Article. (3)the expression " law of a State " in article 286(2) and section 2 of the Sales Tax Laws Validation Act means whatever operates as law in the State, and that section 22 of the Madras General Sales Tax Act is a law within those enactments. 1425 (4) section 2 of the Sales Tax Laws Validation Act validates not only the levies already collected but also authorises the imposition of tax on sales falling within the Explanation which had taken place during the period specified in section 2. The Act is not a temporary Act though its operation is limited to sales taking place within a specified period. Dial Das vs P. section Talwalkay, A.I.R. 1937 Bom. 71, in so far as it held that it was not competent to the State to start fresh proceedings for assessment, disapproved. (5) though section 22 of the Madras General Sales Tax Act was unconstitutional when enacted the effect of the unconstitu tionality was not to efface it out of the statute book. Unconstitutionality might arise either because the law is in respect of a matter not within the competence of the legislature or because the matter itself being within the competence, its provisions offend some constitutional restrictions. Which a law which is not within the competence of the legislature is a nullity a law on a topic within its competence but repugnant to any constitutional prohibition is only unenforceable. In the latter class of legislation when once the constitutional prohibition is removed the law becomes enforceable without re enactment. Where an enactment is unconstitutional in part but valid as to the rest, assuming that the two portions are severable, it cannot be held to have been wiped out of the statute book, as admittedly it must remain there for the purpose of enforcement of the valid portion. Moreover in the view that the impugned law is conditional legislation it cannot be held to have become non est. Behram Khurshed Pesikaka vs The State of Bombay, [1955] I S.C.R. 6I3 and A. V. Fernandez vs State of Kerala, ; , distinguished. Bhikaji Narayan Dhakras and others vs The State of Madhya Pradesh and a other; , , relied on. (6) under Entry 42 in List 1, Sch. VII of the Constitution, legislation with respect to inter State trade and commerce is exclusively within the competence of Parliament. Under Entry 54, List 11, taxes on sale of goods is within the exclusive competence of the State Legislature, and reading the two Entries together Entry 42 must be construed as excluding the power to tax sale of goods. The scheme of the Entries in the Lists is that taxation is regarded as a distinct matter and is separately set out. Entry 42, List 1, must therefore be construed as not including the power to impose tax on inter State sales. (7) the proposed imposition does not infringe the rule that the sales of yarns should be subject to taxation at a single point because the proposed levy is by the State of Andhra and the rule in question prohibits only multiple taxation in the same State. Per Sarkar J. The Sales Tax Act does not authorise the taxation of a sale under which goods are delivered in the State of 1426 Andhra but the property in them passes outside that State. The Explanation in section 22 of the Act only contemplates a State other than Andhra as the State inside which a sale shall be deemed to have taken place. The words " for the purposes of clause (a)(i) " have the same meaning in the Explanation in article 286(1) as in the Explanation in section 22 of the Act, and the present case is not distinguishable from the decision in The Bengal Immunity Company Limited vs The State of Bihar and others,

These petitions on behalf of certain newspaper establishments challenged the constitutional validity of the Working journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, and the legality of the decision of the Wage Board, constituted thereunder, purporting to act under section 9 of the Act. The impugned Act, which was passed in order to implement the recommendations of the Press Commission and had for its object the regulation of the conditions of service of working journalists and other persons employed in newspaper establishments, provided, inter alia, for the payment of gratuity to a working journalist who had been in continuous service, whether before or after the commencement of the Act, for not less than three years, even when he voluntarily resigned from service, regulated hours of work and leave, provided for the payment of retrenchment compensation with retrospective effect in certain cases and by section 9(1) laid down the principles that the Wage Board was to follow in fixing the rates of wages of working journalists. Under those principles the Wage Board was to have regard to the cost of living, the prevalent rates of wages for comparable employments, the circumstances relating to the newspaper industry in different regions of the country and to any other circumstances which it might consider relevant. The petitioners contended on various grounds that the provisions of the impugned Act violated their fundamental rights under articles 19(1)(a), 19(1)(g), 14 and 32 Of the Constitution and that the decision of the Wage Board fixing the rates and scales of wages, which was arrived at without any consideration whatsoever as to the capacity of the newspaper industry to pay the same, imposed too heavy a financial burden on the industry and spelled its total ruin, was vitiated by a wrong approach and non application of the proper criteria and transgressed the principles of natural justice and was, therefore, illegal and void: Held, that the constitutional validity of the impugned Act, with the sole exception of section 5(1)(a)(iii) of the Act which infringed 13 article 19(1)(g) of the Constitution, was beyond question and as that section, severable as it was from the rest of the Act, must alone be declared ultra vires. Section 9(1) of the Act, properly construed, made it incum bent on the Wage Board to take into consideration the capacity of the newspaper industry to pay the rates and scales of wages recommended by it and as there was nothing to indicate that it bad done so, its decision was void and inoperative. Held, further, that there could be no doubt, in view of the interpretation put upon article 19(1)(a) of the Constitution by this Court, that liberty of the press was an essential part of the freedom of speech and expression guaranteed by that Article and the press had thereunder the right of free propagation and free circulation without any previous restraint on publication. Ramesh Thaper vs The State of Madras, ; and Brij Bhushan vs The State of Delhi, ; , referred to. It was legitimate and proper to refer in this connection to the decisions of the Supreme Court of the United States of America, since article 19(1)(a) of the Constitution was based on Amendment 1 of the Constitution of that country, and the rules that could be deduced therefrom made it clear that although freedom of the press included freedom from restriction in respect of employment in the editorial staff, the press was not immune from ordinary forms of taxation or from the application of general laws relating to industrial relations or laws regulating payment of wages. Case law reviewed. But if a law were to single out the press for laying prohibitive burdens on it that would restrict the circulation, penalise its freedom of choice as to personnel, prevent newspapers from being started and compel the press to seek Government aid, it would be violative of article 19(1)(a) and would fall outside the protection afforded by article 19(2) of the Constitution. The impugned Act, judged by its provisions, was not such a law but was a beneficent legislation intended to regulate the conditions of service of the working journalists and the consequences aforesaid could not be the direct and inevitable result of it. Although there could be no doubt that it directly affected the press and fell outside the categories of protection mentioned in article 19(2), it had not the effect of taking away or abridging the freedom of speech and expression of the petitioners and did not, therefore, infringe article 19(1)(a) of the Constitution. A.K. Gopalan vs The State of Madras, ; , Ram Singh vs The State of Delhi, Minnesota Ex Rel. Olson, ; ; and Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning and Weaving Co., Ltd., ; , considered. 14 Nor could the impugned Act be held to be violative of article 19(1)(g) of the Constitution in view of the test of reason ableness laid down by this Court. Chintaman Rao vs The State of Madhya Pradesh, [1950] S.C.R. 759, The State of Madras vs V. G. Rao, ; , a State of West Bengal vs Subodh Gopal Bose, [1954] section C. R. 587 and Virendra vs State of Punjab, ; , referred to. It was not correct to say that section 9(i) of the Act did not lay down the relevant criteria for the fixation of rates of wages. On a true construction of that section it must be held that the criterion of prevalent rates of wages for comparable employment could be consistent only with the wages higher than the bare subsistence or minimum wages and, since rates of wages must be held to include scales of wages as well, it was essential that the Wage Board should take into consideration the capacity of the newspaper industry to pay before it could fix the rates of wages. Although the Act did not specifically say so, it was possible to hold that the third criterion laid down by the section, namely, the circumstances relating to the newspaper industry in different regions of the country, included such a consideration. The provisions of the section were not, therefore, unreasonable and violative of article 19(1)(g) of the Constitution. The provisions of section 9(1) of the impugned Act did not vest uncontrolled power in the Wage Board. The last criterion of that section which empowered the Board to take into consideration any other circumstances that it might think relevant, must be read ejusdem generis with the other criteria that preceded it and as they laid down with sufficient clarity and particularity the principles for the guidance of the Board, the Legislature was perfectly justified in leaving such considerations as might arise in course of the enquiry to the subjective satisfaction of the Board constituted, as it was, of equal number of representatives of both the employers and employees. Thakur Raghbir Singh vs Court of Wards, Ajmer, [1953] S.C.R. 1049, considered. It was not correct to say, having regard to the provisions of sections 11 and 20(2)(d) of the impugned Act, that the Act did not lay down any procedure for the Board to follow or that it was open to the Board to follow any arbitrary procedure violating the principles of natural justice. There could be no substance in the contention of the peti tioners that the provisions of the impugned Act relating to proofreaders, whom it included within the definition of working journalists, period of notice under section 3(2), retrospective operation in cases specified by section 4 and hours of work, imposed unreasonable restrictions on their fundamental right to carry on business. Gratuity, however, was a reward for good, efficient and faithful service rendered for a considerable period and there could be 15 no justification for awarding the same when an employee voluntarily resigned, except in certain exceptional circumstances. The award of gratuity, therefore, to an employee who voluntarily resigned from service after a period of only three years, under section 5(1)(a)(iii) of the Act, must be held to be unreasonable and wholly unjustified. The impugned Act was not discriminatory in character and did not violate article 14 of the Constitution. Working journalists formed a separate class by themselves and could be classified apart from the rest of the newspaper employees on a perfectly intelligible differentia rationally related to the object which the Act had in view. Nor could the provisions of either section 12 or section 17 of the Act, therefore, be said to be discriminatory in character. Budhan Choudhary vs The State of Bihar, [1955] 1 S.C.R. 1045, applied. The impugned Act contained no prohibition nor did it in any way prevent the Wage Board from giving reasons for its decision and thus passing a speaking order where it chose to do so, and it could not, therefore, be said to have violated the fundamental right of a citizen to move the Supreme Court for a writ of certiorari under article 32 of the Constitution. Rex vs Northumberland Com. Appeal Tribunal, Ex Parte Shaw, and Rex vs Northumberland Compensation Appeal Tribunal, Ex Parte Shaw, ; , held inapplicable. A.K. Gopalan vs The State of Madras, ; , relied on. The question whether a particular body was exercising legislative, administrative or judicial or quasi judicial functions has to be determined in the light of the statute under which it was constituted and an administrative body functioning as such can also be acting in a quasi judicial capacity. The test would be whether it had to decide on evidence and decide judicially. So judged, there could be no doubt that the Wage Board under the impugned Act was functioning in a quasi judicial capacity. Nagendra Nath Bora vs Commissioner of Hills Division and Appeals, Assam, ; , referred to. Case law reviewed. Although this Court would not normally enter into questions of fact, in this case the Wage Board had wholly ignored an essential condition for the exercise of its function and imposed a very heavy financial burden on the newspaper industry. Although the Classification of the newspaper industry on the basis of grossrevenue, fixation of scales of wages, provisions as to the, hours of work, leave, retrospective operation in specified cases, and grouping of newspapers into chains or multiple units could not be said to be improper or unjustified, they made the burden heavier still. 16 The Board made no enquiry whatsoever as to the ability of the industry to pay either as a whole or region wise and did not call for or hear representations from them before finalising its decision. Its decision was, therefore, ultra vires the Act and contrary to the principles of natural justice.

The expression "systematic" has been deleted from sub section (3) of section 123 of the Representation of the People Act 1951 by the Amending Act by a candidate or his agent or by any other person with the consent of the candidate or his election agent or by any other person on the ground of his religion, race, caste, community or language etc. would be a corrupt practice. 160 The appellant challenged the election of respondent No. 3 to the Punjab Legislative Assembly on the allegations of corrupt practice. It was contended that section 123(3) of the Representation of the People Act had been violated for three reasons, namely, (a) Sponsorship of respondent No. 3 and distribution of election ticket to him for the Assembly elections by the Akal Takht, "the supreme religious authority of the Sikhs", (b) Issue of Hukumnama (Ex.p 4) by the Jathedar of the Akal Takht in the matter of Assembly elections having regard to the circumstances in which it was issued, indicated that the approval of the Akal Takhat was obtained in order to give his decision a colour of religious authority and (c) Appeal to the voters at election meetings by referring to the Hukamnama, to the writings in the Akali Times and exhorting them to vote for respondent No. 3 by applying to the religious sentiments and warning them of the consequences of not doing so. It was further alleged that an ex Chief Minister of the State as well as the respondent No. 3 himself had represented to the voters at different election meetings that respondent No. 3 had been sponsored by the Akal Takht. Respondent No.3 denied the aforesaid allegations and contended that the alleged Hukamnamas were not Hukamnamas of Akal Takht. The High Court held that Akal Takht was a symbol of political and religious powers and the documents alleged to be the Hukumnamas of Akal Takhat, but contained decision of the leaders of the Akali Party written on the letter head of the Akal Takhat and announced by a Jathedar, and the appellant had not succeeded in proving the charges of corrupt practice. The election petition was accordingly dismissed. The contentions raised in the High Court were reiterated by the appellant before this Court. In addition, it was contended (i) The documents shown at the meetings were Hukumnamas and having regard to the background it cannot be said that it did not have the effect of Hukumnama on the community at large of inducing them to believe 158 ignoring the claim of the candidate nominated by Shri Akal Takht and represented to be supported by Hukamnama would be an act of sacrilege on the part of a good Sikh; and (ii) Respondent No. 3 being a Sikh and a member of the Akali Dal and having known of the conditions precedent which were required to be fulfilled before a proper Hukumnama could be issued had not chosen to raise these contentions in his written statement. It was also urged that the concept of secular democracy is the basis of the Indian Constitution and that the paramount and basic purpose under lying section 123 (3) of the Act is the concept of secular democracy. Section 123 (3) was enacted to eliminate from the electoral process, appeals to divisive factors such as religion, caste, etc. which give vent to irrational passions. It is essential that powerful emotions generated by religion should not be permitted to be exhibited during election and that decision and choice of the people are not coloured in any way. Condemnation of electoral campaigns on lines of religion. caste, etc. is necessarily implicit in the language of section 123 (3) of the Act. Consequently the section must be so construed as to suppress the mischief and advance the remedy. 161 Respondent No. 3 contested the appeal, and it was urged: (i) in order to constitute a Hukumnama proper there were certain conditions precedent, A which were required to be fulfilled, namely, there should be a meeting of Sarbat Khalsa, that is, a meeting of all the Sikhs and secondly anunanimous decision must be arrived at which should be followed by the approval of Shiromani Gurdwara Prabandhak Committee and the decision should be announced from Shri A kal Takht and that in the instant case no such Hukamnama held been issued; (ii) the constituency was a mixed constituency equally B divided into Hindu votes and Sikh votes and an appeal in the name of the Sikh religion in such a situation was unlikely; and (iii) the Akali Party was in alliance with CPI (M) and it was most improbable that when one of the allied parties was a Marxist Party, a candidate of Akali Dal would appeal in the name of religion. Allowing the appeal, C ^ HELD :1. Respondent No. 3 was guilty of corrupt practice under section 123 (3) of the Representation of the People Act, 1951. [189D] 2. As a result of amendment of sub section (3) of section 123 of the Act even a single appeal by a candidate or his agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language would be corrupt practice. [1656] 3. Section 123 (2), (3) and (3A) of the Act were enacted to eliminate from the electoral process appeals to those divisive factors which arouse irrational passions that run counter to the basic tenets of the Constitution. Due respect for the religious beliefs and practices, race, creed, culture and language of other citizens is one of the basic postulates of our democratic system. The line has to be drawn by the court between what is permissible and what is prohibited after taking into account the facts and circumstances of each case interpreted in the context in which the statements or acts complained of might have been made. The court has to examine the effect of statements made by the candidate upon the minds and feelings of the ordinary average voter. [171B D] F Ambika Sharan Singh vs Mahant Mahadev and Giri and others, and Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdas Mehra and Ors. [1975] Suppl. S.C.R. 281, relied upon. With a view to curb communal and separatist tendencies, section 123 (3) of the Act has been amended in 1961. In order to determine whether certain activities come within the mischief of section 123 (3), regard must be had to the substance of the matter rather than to the mere form or phraseology. The inhibition of section 123 (3) should not be permitted to be circumvented indirectly or by circuitous or subtle devices. The court should attach importance to the effect and impact of the acts complained of and always keep in mind the paramount purpose, namely, to prevent religious influence from entering the electoral field. The nature and consequence of an act may not appear n its very face but the same can be implied having regard to the language, H 162 the context, the status and position of the person issuing the statement, the appearance and known religion of the candidate, the class of persons to whom the statement of act is directed, etc. [176C F] 5. It would not be an appeal to religion if a candidate is put up be saying vote for him because he is a good Sikh or he is a good Christian or he is a good Muslim, but it would be an appeal to religion if it is publicised that not to vote for him would be against Sikh religion or against Christian religion or against Hindu religion or to vote for the other candidate would be an act against a particular religion. It is the total effect of such an appeal that has to be borne in mind in deciding whether there was all appeal to religion as such or not. In each case, therefore, the substance of the matter has to be judged. [182E G] This question, however, has to be kept in view within proper limit and religious leaders have right freely to express their opinion on the comparative merits of the contesting candidates and to canvass for such of them as he considered worthy of the confidence of the electorates. [183B] Shubnath Deograrm vs Ram Narain Prasnd an(l others, , Ram Dial vs Sant Lal and others, [1959] Supp. 2 S.C.R., 748 and Kultar Shingh vs Mukhtiyar Singh; , , followed. Whether the documents said to be Hukamnamas were actually Hunkamnamas or not should not be decided in a technical manner. in these matter the Court has to examine the effect or the statements made by the candidate on his behalf upon the minds and the feelings of the ordinary voters of the country. It is undisputed that Shri Akal Takht enjoys a unique position amongst the Sikhs. It is indubitable that any communication from Shri Akal Takht which is represented by eminent members of the Sikh community as Hukamnama would have great religious persuasive value even though strictly speaking it might or might not be a Hukamnama. [182A D] Zyauddin Burhanuddin Bukhari vs Brijmohan Ramdas Mehra Glory of the Akal Takht, p. 97 by Harjinder Singh Dilgeer, Singh The Sikh Religion Vol. IV, p. 3 by M. A. Macauliff and a A History of the Sikhs by Khuswant Singh Vo. 1: 1469 1839, p. 63, referred to. From the evidence on record, in the background of the fact that some communications from Akal Takht call it Hukamnama or any other name were issued and the issues of editorials of Akali Times were pointed out by the ex Chief Minister at the meetings, and the same had not been denied by him, it is apparant that appeal in the name of religion was made on behalf of the respondent No. 3. Though some facts stated in the oral evidence about the meetings had not been stated in the petition, but when evidence was tendered and was not shaken in cross examination and the versions have a ring of truth in the background of other facts, the factum of appeal to religion by the respondent No. 3 has been proved. This conclusion becomes irresistible in view of absence of any express denial by the ex Chief minister and in the absence of any explanation for not calling him as a witness on this point, [188 E to 189A] 163 8. It is not a question of merely proving a fact by adverse presumption. A In cases where there is positive evidence to prove a fact and there is no denial by the person who is most competent to deny that fact and no reason was given for his not giving evidence the conclusion is that the evidence advanced must be accepted. In the instant case, in the background of his eminence and his position, as the ex Chief Minister, his relationship with respondent No. 3 and especially in view of the fact that respondent No. 3 had in fact been nominated by the same group on behalf of the Sikh community with which the ex. Chief Minister was so intimately connected leads to the conclusion that the evidence advanced on behalf of the appellant must be accepted. It is clear that the ex Chief Minister as well as the elected candidate himself represented to the electorate that respondent No. 3 was a nominee of the Akal Takht and that an appeal to vote for respondent No. 3 in the name of Akal Takht with all the consequences of Hukamnama of Akal Takht was highlighted before the electorate [185H; 186A D1 C 9. In matters of this nature, the evidence naturally is mostly oral. Especially where the charge is a grave one, namely, corrupt practice which if proved would disentitle the candidate to contest the election for sometime to come, the Court must proceed with caution. [188C] Rahim Khan vs Khurshid Ahmed & ors., [1975] I S.C.R. 643 and Ch. Razik Ram vs Ch. I.S. Chauhan & ors., A.I R. 1975 S.C. 667, relied upon. Kanhaiyalal vs Mannalal & ors. ; , and M. Narayama Rao vs G. Venkata Reddy & ors., [1977]1 S.C.R. 493, referred to, 10 While insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it well nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining Purity of the electoral process. [189B] Ram Saran Yadav vs Thakur MIJneshawar Nath Singh & ors. (Civil Appeal No. 892 (NCE) of 1980), relied upon. The contentions of the respondent No. 3 that since it was a mixed constituency and his party was in alliance with CPI (M), it was unlikely and improbable to make an appeal in the name of religion, are rejected for the reason that if there is conclusive evidence to that effect then such a theory would not outweigh the facts proved. These are only probabilities of a situation but if there is direct evidence of propaganda or campaign by candidate in the election in the name of religion, the probabilities of such a campaign not being made in view of other surrounding circumstances, cannot outweigh the direct evidence if the Court is otherwise inclined to accept such direct evidence. [170B.C] Ambika Sharan Singh vs Mahant Mahadev and Giri and others, , followed. For a proper verification of an affidavit or a petition based on certain informations, the source should be indicated. But in the instant case? 164 this question was not examined further because no objection at any stage was taken. [189 Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdas Mehra & ors Padmabati Dasi vs Rasik Lal Dhar. I.L.R. XXXVII Calcutta 259 at 260 and Hardwari Lal vs Kanwal Singh, followed.

Held by the Court (KANIA C.J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, DAS and CHANDRASEKHARA AIYAR JJ. FAZL ALI and MUKHERJEA JJ., dissenting) Article 13(1) of the Indian Constitution does not make existing laws which are incon sistent with fundamental rights void ab initio, but only renders such laws ineffectual and void 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 com mencement of the new Constitution in contravention of the provisions of any law which was a valid law at the time of the commission of the act, a prosecution for such an act, which was commenced before the Constitution came into force can be proceeded with and the accused punished according to that law. even after the commencement of the new Constitu tion. On the expiry of a temporary statute no further proceed ings can be taken under it unless the statute itself saved pending proceedings and if an offence had been committed under a temporary statute and proceedings were initiated but the offender had not been prosecuted and punished before the expiry of the statute, then in the absence of a saving clause the pending prosecution cannot be proceeded with after the expiry of the statute by efflux of time. The effect of article 13(1) is quite different from that of the expiry of a temporary statute or the repeal of a statute by a subsequent statute. A court of law has to gather the spirit of the Constitu tion from the language/of the Constitution. What one may believe or wish to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view. 229 Per FAZL ALI and MUKHERJEA JJ. (contra) Though article 13(1) has no retrospective operation, and transactions which are past and closed and rights which have already vested will remain untouched, with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings which were pending at the time of the enforcement of the Constitution and not yet prosecuted to a final judgment, a law which has become void under article 13(1) of the Constitution cannot be applied. What has to be looked at is the state of the law at the time when the question arises as to whether a person has commit ted an offence, and if it is found that the law which made the act an offence has become completely ineffectual and nugatory, then neither can a charge be framed nor can the accused person be convicted. Judgment of the Bombay High Court affirmed.

The Settlement Officer under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 suo motu made an inquiry as to whether a particular village notified by the State Government was an estate or not within the contemplation of section 9(2) of the Act and held that it was not an "inam estate" within the meaning of section 2(7) of the Abolition Act but that the village became an estate by virtue of Madras Estates Land (3rd Amendment) Act, 1936. Ther appellants unsuccessfully appealed to the Estate Abolition Tribunal. The appellant then instituted a suit (O.S. 47 of 1953) against the State Government for a declaration that the village was not an "estate" under section 3(2)(d) of them Madras Estates Land Act, 1908 and consequently Madras Estate (Reduction of Rent) Act, 1947 and the Abolition Act were not applicable to it. The trial court decreed the suit. The State Preferred an appeal. During the pendency of the appeal the appellant filed a suit (O.S. No. 101 of 1954) against the respondents for recovery of certain amount as rent or damages in respect of lands cultivated by them in the village in dispute. The respondents contended that the village was an estate within the meaning of the Act and that it had been so held by the Settlement Officer. Ultimately both the parties filed a joint memo on 26th March, 1958 that they would abide by the decision of the High Court or the Supreme Court in the appeal or revision arising out of the suit (O.S. 47/53) on the question whether the village was or was not an "estate" under, section 3(2)(d) of the Madras Estates Land Act. The High Court (in A.S. No. 668 of 1954 which was an appeal arising out of O.S. 47 of 1953) confirmed the decree of the trial court that the village in dispute was not an 'estate '. The State did not appeal, with the result that the High Court 's decision became final and the decree dated 28th March, 1958 became, effective. Against the decree of 28th March, 1958 the appellants preferred an appeal (A.S. 239 of 1961) to the High Court. The appeal related only to the extent of the land in the possession of the respondents and the quantum of rent or damages. The appellants ' claim was that the entire land was under cultivation of the respondents and so the lower court was wrong in not decreeing the appellants ' claim for rent or damages in toto. The respondents raised a preliminary objection at the time of hearing of the appeal that the suit itself was incompetent as the Civil Court had no jurisdiction to decide whether the suit village was an estate or not and, therefore, any (decision given by the High Court would not bind the parties and the decree in O.S. 101 of 1954 would be without Jurisdiction rendering it null and void and that the Settlement Officer was the competent authority to decide the tenure of the village and his deci sion had become final in view of the introduction of section 9A by Act 20 of 1960. The High Court upheld the preliminary objection of the respondents and rejected the contentions of the appellants that since section 9A was inserted by an amendment which came into force on 23rd June, 1960, it could not affect the compromise decree of the court passed on March 28, 1958 or the decree of the High Court by which both the parties agreed to abide by the decision of the High Court or the Supreme Court in appeal or revision arising out of O.S. 47 of 1953. The High Court held that the Civil Court was not the forum for the suit as framed by the appellants and the questions raised in the suit L748SuP CI/74 656 including the claim for arrears of rent or damages, were outside the jurisdiction of the Civil Court, and so dismissed the appeal. Allowing the appeal, HELD:1 (a) There is no doubt that the question was within the competence of the Civil Court. Under the Abolition Act, as it stood at the material date, the inquiry of the Settlement Officer could legitimately be confined to the ascertainment of only two disputes of fact, viz., (i) Was the village an "inam village"? (ii) If so, was it an 'Inam Estate ' as defined in section 2(7) of the Abolition Act ? Once issue (ii) was determined, the inquiry would be complete and the limits of his exclusive jurisdiction circumscribed by section 9(1) reached; if he went beyond those limits to investigate and determine something which is unnecessary or merely incidental or remotely related to issue No. (ii), 'then such incidental or unnecessary determination could be questioned in a Civil Court. [668FG] (b) Any finding recorded by the Settlement Officer regarding the property in question being an 'inam village ' or not, ' is not final or conclusive it being a finding of a jurisdictional fact only, the Preexistence of which is a sine qua non to the exercise of his exclusive jurisdiction by the Settlement Officer. [668H] (c) The legislature must have visualised that under the cloak of an erroneous finding as to the existence or nonexistence of this prerequisite, the Settlement Officer may illegally clutch at jurisdiction not conferred on him or refuse to exercise jurisdiction vesting in him. Perhaps that is why the statute does not leave the final determination of this preliminary fact to the Settlement Officer/Tribunal and his erroneous finding on that fact is liable to be questioned in a Civil Court. Once it is held that determination of this fact is not a matter of the exclusive jurisdiction of the Settlement Officer, the appellants cannot be debarred on the basis of any doctrine of res judicata from getting the matter fully and finally adjudicated by a court of competent jurisdiction. [669B C; E] Addanki Tiruvenkata Tata Desika Charyulu vs State of Andhra Pradesh A.I.R. 1964 S.C. 807 followed. District Board, Tanjore vs Noor Mohammed, (1952) 2 MJ. 586 (S.C.) referred to. (2) It is well settled that ordinarily when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was taken unless the new statute shows a clear intention to vary such rights. A plain reading of the impugned Act would show that there was nothing of this kind which expressly or by necessary intendment affects pending actions. [67OC D] (b) There is no non obstante clause in the amending Acts 17 and 18 of 1957 with reference to pending or closed civil actions. These amending Acts ' were published in the government gazette of December 23, 1957 and will therefore be deemed to have come into force from that date only. They could therefore be construed as having prospective operation only. [67OG H] (c) In the Amending Act 20 of 1960 also no back date for its commencement has been mentioned. It will, therefore, be deemed to have commenced on June 23, 1960 which is the date on which it was published in the Government gazette. [674E] Section 9A takes in its retrospective sweep only those decisions of the Settlement Officer or the Tribunal which at the commencement of 'the Amending Act 20 of 1960 were subsisting and had not been totally vacated or rendered non est by a decree of a competent court. [675 F] In the instant case the decision of the Settlement Officer dated September 2, 1950 was not such a decision. It had ceased to exist as a ' result of the inter linked decree in O.S. 47 of 1953 and O. section 101 of 1954 passed before the enactment of the Amending Act. The Amending Act of 1960, therefore, does not in any way affect the finality or the binding effect of those decrees. [675G] 657 (d) Order 23 rule 3 C.P.C. not only permits a partial compromise and adjustment of a suit by a lawful agreement, but further gives a mandate to the court to record it and pass a decree in terms of such compromise or adjustment in so far as it relates to the suit. If the compromise agreement was lawful the decree to the extent it was a consent decree was not appealable because of the express bar in section 96(3) of the Code. [672E] Raja Sri Sailendra Narayan Bhanja Deo vs State of Orissa ; , Shri Prithvi Cotton Mills Ltd. vs Broach Borough Municipality and Reid vs Reid at 408, followed. (e) In any suit the parties, in order to avoid unnecessary expenses and botheration, could legitimately make an agreement to abide by a determination on the same point in issue in another pending action in an advanced stage There was nothing unlawful and improper in such an arrangement particularly when the interests,of the respondents were sufficiently safeguarded by the State. By no stretch of reasoning it could be said that the agreement was collusive or was an attempt, to contract out of the statute. In the instant case as soon as the parties made the agreement to abide by the determination in the appeal (A. section 668) and induced the court to pass a decree in terms of that agreement the principle of estoppel underlying section 96(3) C.P.C. became operative and the decree to the extent it was in terms of that agreement became final and binding between the parties. It was as effective in creating an estoppel between the Parties as a judgment on contest. [672F C & 673C] In the instant case that part of the decree in suit No. 101 of 1954 and the appeal from that decree could not be said to be a continuation of that part of the claim which had been settled by agreement. The combined effect of the two integrated decrees was to completely vacate and render non est decision dated September 2, 1950 of the Settlement Officer. [673F] Raja Sri Sailendra Narayan Bhanja Deo vs State of Orissa ; applied. Per Krishna Iyer, J. concurring Courts have to be anchored to well known canons of statu tory construction and if they are out of tune With the law maker 's meaning and purpose the legitimate means of setting things right is to enact a new Interpretation Act. [678B] The Indian Constitution, adopting the fighting faith of equal I protection of the laws to all citizens, necessarily contemplates a new jurisprudence where vested rights may be, and often times are, extensively interfered. with for achieving the founding fathers ' social goals. Legislative exercises directed towards distributive justice as in the present case, cannot be considered in the light of dated value system, though sanctified by bygone decisions of Courts. [677H] In the present case the Act in question is clear about its intent and its application gives little difficulty.

The first respondent was the founder and Managing Director of a company, the second respondent in the appeal, which was incorporated in the State of Mysore and conducted a Prize Competition called the R. M. D. C. Cross words through a weekly newspaper printed and published at Bangalore. This paper had a wide circulation in the State of Bombay, where the respondents set up collection depots to receive entry forms and fees, appointed local collectors and invited the people by advertisements in the paper to participate in the competitions. On November 20, 1952, the Bombay Legislature passed the Bombay Lotteries and Prize Competitions Control and Tax (Amendment) Act of 1952, and widened the scope of the definition of 'prize competition ' contained in section 2(1) (d) of the Bombay Lotteries and Prize Competition Control and Tax Act of 1948, so as to include prize competitions carried on through newspapers printed and published outside the State and inserted a new section, section 12A, levying a tax on the promoters of such competitions for sums collected from the State. Thereupon, on December 18, 1952, the respondents moved the High Court of Bombay under article 226 of the Constitution and contended that the Act as amended and the Rules framed thereunder in so far as they applied to such prize competitions were ultra vires the State Legislature and violated their fundamental rights under article 19(1) (g) and freedom of inter State trade under article 301 of the Constitution. The Single Judge who heard the matter in the first instance as also the court of appeal found in favour of the respondents, though on somewhat different grounds, and the State of Bombay preferred the appeal. The principal question canvassed in this Court related to the validity. or otherwise of the impugned Act. It was contended on behalf of the appellant that the impugned Act was a law relating to betting and gambling and as such was covered 875 by Entries 34 and 62 of List II in the Seventh Schedule to the Constitution, whereas the contention of the respondents was that the Act was with respect to trade and commerce and came under Entries 26 and 60 of that List. Held, that in testing the validity of an Act it was necessary, in the first place, to decide whether it was with respect to a topic assigned to the legislature and, secondly, where it was so and the legislature was a State Legislature and the Act purported to operate beyond the State, whether there was sufficient territorial nexus to validate such operation and, lastly, whether the powers of the legislature were in any other way fettered by the Constitution. So judged, the impugned Act was a perfectly valid legislation and its constitutionality was beyond question. Regard being had to the purpose and scope of the Act read as a whole there could be no doubt that all the categories of prize competitions included in the definition contained in section 2(1) (d) of the Act were of a gambling nature. The qualifying ' clause appearing at the end of cl. (1) must apply to each of the five kinds enumerated therein, and the word 'or ' appearing after the word I promoters ' and before the word 'for ' in the clause must be read as 'and '. Similarly, cl. (ii), properly construed, could not include any prize competitions other than those of a gambling nature. Elderton vs Totalisator Co. Ltd., , held inapplicable. The impugned Act was, therefore, a legislation with respect to betting and gambling and fell under Entry 34 of List II of the Seventh Schedule to the Constitution and was within the competence of the State Legislature. Taxes on gambling are a well recognised group of indirect taxes and section 12A of the Act in seeking to tax the gross collections in the hands of the promoters, and not their profits, was only following an easy and convenient way of getting at the gambler 's money in their hands and this made no difference in the character of the tax, essentially one on betting and gambling and not on any trade, and, consequently, the section fell within Entry 62 and not Entry 6o of List II of the Seventh Schedule to the Constitution. A prize competition that did not to a substantial degree depend upon the exercise of skill for its solution would be of a gambling nature and a scrutiny of the prize competitions offered by the respondents clearly showed that there was an element of chance to start with, and, consequently, they must be of a gambling nature and fell within the mischief of the Act. The doctrine of territorial nexus was a well established doctrine and could apply only when (1) the territorial connection between the persons sought to be taxed and the legislating State was real and not illusory and (2) the liability sought to be imposed was pertinent to that connection. The existence of sufficient 876 territorial nexus in a particular case was essentially a question of fact. There could hardly be any doubt in the instant case that the impugned Act satisfied all these tests and, consequently, it was unassailable on the ground of extra territoriality. Gambling activities were in their very nature and essence extra commercium although they might appear in the trappings of trade. They were considered to be a sinful and pernicious vice by the ancient seers and law givers of India and have been deprecated by the laws of England, Scotland, United States of America and Australia. The Constitution makers of India, out to create a welfare State, could never have intended to raise betting and gambling to the status of trade, business, commerce or intercourse. The petitioners, therefore, had no fundamental right under article 19(1) (g) or freedom under article 301 Of the Constitution in respect of their prize competitions that could be violated and the validity of the impugned Act, in pith and substance an Act relating to gambling, did not fall to be tested by articles 19(6) and 304 Of the Constitution. judicial decisions on article 1, section 8, sub section (3) Of the Constitution of the United States and section 92 of the Australian Constitution should be used with caution and circumspection in construing articles 19(1) (g) and 301 of the Indian Constitution. State of Travancore Cochin vs The Bombay Co. Ltd. ; and P. P. Kutti Keya vs The State of Madras, A.I.R. (1954) Mad. 621, referred to. The King vs Connare, ; , The King vs Martin; , , Commonwealth of Australia vs Bank of New South Wales, L.R. (195o) A.C. 235, Mansell vs Beck, Australian Law journal Vol. 3o, NO. , Champion vs Ames, ; , Hipolite Egg Co. vs United States, ; , Hoke vs United States, ; , United States vs Kahriger, ; and Lewis vs United States, 99 L.Ed.475, discussed.

The respondent gave notice to the appellants terminating the lease of agricultural land situated within two miles of the limits of the Municipality and filed a suit for eviction. The suit was contested, inter alia, on the ground that under the provisions of the Bombay Tenancy Act, 1939, the defendants had acquired tenancy rights. The civil Judge, inter alia, held that the 1939 Act was repealed by the Bombay Tenancy and Agricultural Land Act, 1948, which did not apply to the suit land, as it was within two miles of the limits of the Surat Borough Municipality and decreed the suit. On appeal, the District Judge held that the 1948 Act applied to the Suit land and set aside the decree of the trial Court. In second appeal by the plaintiff, the High Court held that the suit land was within two miles of the limits of the Municipality and therefore, the 1948 Act did not apply to the suit land. On appeal by Special Leave the appellants contended that their rights under the 1939 Act were saved and preserved under section 89(2) of the 1948 Act with the result that the lease extended to 10 years under the 1939 Act was saved thereunder, and by reason of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952, which brought the suit land within the scope of the 1948 Act, their rights so preserved came to be governed by the provisions of he 1948 Act and, therefore, they could not be evicted except in the manner prescribed by the provisions of the Act. The respondent contended that the saving provision in section 89(2) of the 1948 Act operates only if there is no express provision to the contrary and that the saving of the appellant 's right would be otiose, as he could not enforce his right under the 1948 Act. Held:(i) Before the suit was disposed of, the 1952 Act came into force, and by reason of the extension of the 1948 Act to the suit land, the respondent could not evict the appellants except in the manner prescribed by the 1948 Act. (ii)The respondent 's contention must be rejected. There is an express provision found in section 88(1) of the 1948 Act, in as much as it says that the provisions of sections 1 to 87 will not apply to the area in question. (iii)As there was a right recognized by law there was a remedy and, therefore. in the absence of any special provisions indicating a 774 particular forum for enforcing a particular right the general law of the land would naturally take its course. The High Court, therefore, was wrong in holding that the appellants could not claim the benefit of the provisions of the 1948 Act. Sakharam (a) Bapusaheb Narayan Sanas vs Manikchand Motichand Shah ; relied on.

Appeal No. 388 of 1956. Appeal by special leave from the judgment and order dated the August 19, 1955, of the Bombay High Court in Appeal No. 53 of 1955. 755 C. K. Dhaphtary, Solicitor General of India, K. B. Choudhuri and B. H. Dhebar, for the appellant. N. section Bindra and R. section Narula, for respondent No. 1. B. H. Dhebar, for respondent No. 2. 1961. April 4. The Judgment of P. B. Gajendragadkar, IC. R. Wanchoo, K. C. Das Gupta and N. Rajagopala Ayyangar, JJ., was delivered by Ayyangar, J. A. K. Sarkar, J., delivered a separate judgment. AYYANGAR, J. This appeal by special leave is against the judgment and order of a Division Bench of the Bombay High Court by which a writ of mandamus or certiorari granted to the respondent was confirmed on appeal preferred by the appellant now before us. A few facts are necessary to be stated to understand the matters in controversy and the points raised for our decision. The respondent carries on business in Bombay and he was granted on August 18, 1954, a licence under the Imports and Exports (Control) Act, 1947, for the import of fountain pens at not less than Rs. 25 C.I.F. value each from soft currency area, up to a defined amount. He placed an order for the import of Sheaffer pens from Australia and a consignment of these was received by air in Bombay in Octo ber 1954. The fountain pens thus imported had nibs which were gold plated and also caps and clips of similar composition. The question in controversy relates to the rate of duty to be charged on these im. ported pens. The Schedule to the Indian Tariff Act, 1934, has an item numbered 45(3) in relations to the article described, as "fountain pens complete", the rate of duty being 30 per cent and valorem. It was the case of the respondent that the imported goods fell within this item and were liable to be charged with duty at that rate '. The Custom authorities, however, considered that the consignment fell within the description "articles plated with gold or silver" being item 61(8) on which duty was payable at 781 per cent. 756 The Assistant Collector of Customs adjudicated the duty on this latter basis and thereafter the respondent having filed an appeal to the Collector of Customs, the levy was upheld by order dated February 22, 1955. Section 191 of the enables any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government. The respondent, without resorting to this remedy, filed a writ application in the High Court of Bombay to quash the imposition of the duty at the higher rate (certiorari) and to direct the release of the goods on payment of duty at 30 per cent. (mandamus). The application was resisted by the Collector of Customs, who raised substantially two points: (1) that on the merits the goods imported were "gold plated articles" notwithstanding their being fountain pens and that the proper rate of duty was that which had been determined by the Assistant Customs Collector, (2) that the respondent had another remedy open to him, viz., to file a revision to the Central Government and that he was, therefore., disentitled to move the High Court under article 226 of the Constitution before availing himself of the remedy specially provided by statute. The writ petition came on for hearing before justice Tendolkar, who by his order dated July 5, 1955, recorded that on any reasonable construction of the items in the Schedule to the Indian Customs Tariff, fountain pens did not cease to be fountain pens" because they contained parts which were plated with silver or gold and that so long as they were "fountain pens complete", subject to any exceptional cases of which this was not one, only duty at 30 per cent. under item 45(3) could be levied. The learned Judge further held that the interpretation that he placed upon item 45(3) in the context of the other entries in the Tariff Schedule can "only be one and it is not reasonably possible for any person to take a contrary view". In other words, the learned Judge was of the opinion that the construction put upon the entry by the Customs authorities was unreasonable or perverse. 757 The objection to the writ petition based upon the petitioner before him not having exhausted the statutory remedies available to him was repelled by the learned Judge on the ground that on the facts the decision to levy duty at 783 per cent. was without jurisdiction. The petition was, therefore, allowed and the Customs authorities were, by order of Court, restrained from enforcing payment of any duty higher than 30 percent. The Collector of Customs filed an appeal against this order which was disposed of by a judgment delivered on behalf of the Bench, by Chagla, C. J. The learned Chief Justice was equally emphatic that no reasonable person could, on the construction of the relevant items in the Schedule to the Tariff Act, hold that the consignment of fountain pens could fall under any item other than 45(3) or be charged a duty other than the 30 per cent. provided under that item. Dealing with the other point about the writ petitioner not having exhausted his statutory remedy of Revision to the Government, the learned Chief Justice disagreed with the view of the learned Single Judge that the Customs authorities lacked or exceeded their jurisdiction in assessing duty at a higher figure than was justified by the relevant items of the Schedule to the Tariff Act. The learned Chief Justice, after pointing out that it was the settled practice of the Bombay High Court not to entertain writ petitions by parties who had not exhausted their statutory remedies, however, held that in the case before the Bench the remedy of applying in Revision to the Central: Government had become time barred by the date ' of the hearing of the appeal, and that on that ground he would not interfere with the order of the learned Single Judge. The appeal was, therefore, dismissed. The Collector of Customs having obtained special leave from this Court has brought this appeal before US. The learned Solicitor General appearing for the appellant argued the appeal on the basis that the view of the learned Judges of the Bombay High Court that on any reasonable interpretation of the items in 758 the Schedule to the Tariff Act the consignment imported by the respondent could have been liable only to a duty of 30 per cent. under item 45(3) was correct. We might add that even apart from this concession bay for the purpose of argument, we entirely agree with the learned Judges that the tariff items in the Schedule are not reasonably capable of any other construction. In reaching this conclusion we have taken into account the fact that "fountain pens complete" were taken out of the general item 45 'Stationery etc. ' under which they were originally included, by an amendment effected in 1949 in pursuance of an international agreement and that though the duty on stationery was thereafter increased from 30 to 37 1/2 per cent., under the provisions of the Finance Act, 1949, the duty of 30 per cent. fixed on fountain pens re mained unchanged. This at least showed that they were treated as a specialized class of stationery which required separate treatment. The only question therefore is whether a fountain pen in which certain of its essential parts are gold or silver plated falls outside the category of "fountain pens complete". It cannot be again said that anib, cap and clip are essential parts of a fountain pen and not more accessories, and that without them there would be no question of having a "fountain pen complete". Next it is a well known and recognized fact that most fountain pens in ordinary use have nibs 'Which are gold plated. In this connection it should not be overlooked that gold, apart from being a store of value, is a metal which has industrial uses by its malleability and its resistance to oxidation on contact with acids and chemicals which enter into the composition of ink. The use of gold plating for nibs is therefore for increasing the utility of the nib for its primary function of writing and not with a view to enhancing its value by the cost of the metal. In the case before us it would be noticed that the pens permitted to be imported had to be not less than Rs. 25 each C.I.F. value, presumably with a view to protect the market for cheaper pens of indigenous manufacture. Most pens of the 759 value specified in the licence, it need hardly be added, would have gold plated nibs. It could certainly not be that it was the intention of the authorities that notwithstanding Entry 45(3) reading "fountain pens complete" there could practically be no import of pens under that item, because with the limit of value prescribed in the licence, the permitted pens would mostly have gold plated nibs. Different considerations might arise when gold or gold plating is used not for poses essential for the utility of the pen as such, Purmerely as an addition to its value. These cases have been excepted by Justice Tendolkar and we endorse his remarks on this point. No such question arises on the pens imported by the respondent and it was obviously because of this, that the learned Solicitor General did not address us on the correctness of the interpretation placed on relative scope of entries 45(3) and 61(8), by the learned Judges of the High Court. The only point, therefore, requiring to be considered is whether the High Court should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed. The contention of the learned Solioitor General was that the existence of an alternative remedy was a bar to the entertainment of a petition under article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est. In all other cases, he sub mitted, Courts should not entertain petitions under article 226, or in any event not grant any relief to such petitioners. In the present case, he urged, the High Court in appeal had expressly dissented from the reasoning of the learned Single Judge as regards the lack of jurisdiction of the Customs Officers to adjudicate regarding the item under which the article imported fell and the duty leviable thereon. Nor was there any complaint in this case that the order had been passed without an opportunity to the importer 760 to be heard, so as to be in violation of the principles of natural justice. The learned Solicitor General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respon dent in not moving the Government in revision by taking into account the time that had elapsed between the date of the impugned order and that on which the appeal was heard. The submission was that if this were a proper test, the rule as to a petitioner under article 226 having to exhaust his remedies before he approached the Court would be practically a dead letter because in most cases by the date the petition comes on for hearing, the time for appealing or for applying in revision to the departmental authorities would have lapsed. We see considerable force in the argument of the learned Solicitor General. We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this Court but it is sufficient to refer to two cases: In Union of India vs T. R. Varma(l), Venkatarama Ayyar,J., speaking for the Court said: "It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the juris diction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed vs Municipal Board, Kairana ( 'a), 'the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs '. Vide also (1) [1958] S.C.R. 499 503,504. (1a) ; 761 K.S. Rashid and Son vs The Income tax Investigation Commission( '). And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under article 226, unless there are good grounds therefore. " There is no difference between the above and the formulation by Das, C. J., in The State of Uttar Pradesh vs Mohammad Nooh (2), where he observed: ". . It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite ,of the fact that the aggrieved party had other ade quate legal remedies. " After referring to a few cases in which the existence of an alternative remedy had been held not to bar the issue of a prerogative writ, the learned Chief Justice added: "It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari." In the result this Court held that the existence of other legal remedies was not per se a bar to the issue (1) [1954] S.C.R 738. 96 (2) ; , 605 607. 762 Of a writ of certiorari and that the Court was not bound to relegate the petitioner to the other legal remedies available to him. The passages in the judgments of this Court we have extracted would indicate (,I) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested. in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus preeminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court. The question that we have now to consider is has the discretion which undoubtedly vested in the Court been so improperly exercised as to call for our interference with that order. We might premise this discussion by expressing our opinion on two matters merely to prevent any misunderstanding. First we entirely agree with Chagla, C. J. that the order of the Assistant Collector of Customs in assessing duty at 781 per cent. or of the Collector of Customs in confirming the same, was not void for lack of jurisdiction. The interpretation they put on the relevant items in the Tariff Schedule might be erroneous, even grossly erroneous, but this error was one committed in the exercise of their jurisdiction and had not the effect of lacing the resulting order beyond their jurisdiction. Secondly, as we have already indicated, we must express our dissent from the reasoning by which the learned Judges of the High Court held that the writ petitioner was absolved from the normal obligation to 763 exhaust his statutory remedies before invoking the jurisdiction of the High Court under article 226 of the Constitution. If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he, cannot certainly be ' permitted to urge that as a ground for the Court dealing with his petition under article 226 to exercise its discretion in his favour. Indeed, the second pass age extracted from the judgment of the learned C. J. in Mohammad Nooh 's case. (1) with its reference to the right to appeal being lost "through no fault of his own" emphasizes this aspect of the rule. The question, however, still remains whether in the circumstances of this ease we should interfere with the decision of the High Court. In considering this, we cannot lose sight of three matters: (1) that the levy of the duty at 78 3/4 per cent. was manifestly erroneous and cannot be supported on any reasonable construction of the items in the Tariff Schedule, (2) it was stated by the Customs authorities in answer to the writ petition, in the grounds of appeal to the High Court under the Letters Patent, as also in the statement of case before us, that the Central Board of Revenue had issued a ruling to the effect that fountain pens with nibs or caps which were gold platled fell within item61(8). This might be some indication that the adjudication by the Assistant Collector of Customs and by the Customs Collector on appeal was in pursuance of a settled policy of the entire hierarchy of the department. Without going so far as to say that a Revision to the Central Government might in the circumstances be a mere futility, we consider that this is not a matter which would be wholly irrelevant for being taken into account in disposing of the appeal before us. After all, the basis of the rule by which Courts insist upon a person exhausting his remedies before making application for the issue of a prerogative writ is that the Court 's jurisdiction ought not to be lightly invoked when the subject can have justice done to him by resorting to the remedies prescribed by statutes. (3) Lastly, the learned (1) ; , 605 607. 764 Solicitor General does not dispute the correctness of the principle of law as enunciated by Chagla, C. J., his complaint is that the law as laid down by the learned Chief Justice has not. been properly applied to the facts of the case before him. If the challenge to the judgment of the High Court were of the former type, this Court might have to interfere to lay down the law correctly lest error creep into the administration of justice. But where the error is only in the application of the law correctly understood to the, facts of a particular case, we should be persuaded that there has been a miscarriage of justice in the case before us before being invited to interfere; and this the learned Solicitor General has not succeeded in doing. It would be remembered that the question is not whether if the respondent 's application were before us, we should have directed the writ to issue, but whether the learned Judges of the High Court having in their discretion which they admittedly possessed made an order, there is justification for our interfering with it. The two matters set out earlier should suffice to show that no interference could be called for in this appeal. We consider, therefore, on the whole and taking into account the peculiar circumstances of this case that the High Court has not exercised its discretion improperly in entertaining the writ application or granting the relief prayed for by the respondent and that no care for interference by us in an appeal under article 136 of the Constitution has been made out. The appeal fails and is dismissed with costs. SARKAR, J. In this case the respondent had imported a certain number of fountain pens plated with gold. The goods were assessed to import duty by an assessing officer of the Indian Customs under item 61(8) of the first schedule to the Customs Tariff which dealt with "Articles, other than cutlery and surgical instruments, plated with gold or silver" and provided for a duty of 78 3/4 per cent. ad valorem. The respondent appealed from this assessment to the Collector of Customs under a. 188 of the , on the ground that the assessment should have been 765 under item 45(3) of that schedule which dealt with "Fountain pens, complete" and provided for a duty of 30 percent ad valorem. He did not dispute that the fountain pens imported by him were, gold plated. His appeal was dismissed. The respondent then moved the High Court at Bombay for a writ to quash the order of assessment under item 61(8). The application was allowed by Tendolkar T. who issued a writ of mandamus directing the Collector of Customs to release the goods upon payment of the duty specified in item 45(3). The appeal by the Collector of Customs from the order of Tendol 'kar, J., to an appellate bench of the High Court was dismissed. The Collector has therefore filed the present appeal. The first question is, whether the writ should have been refused on the ground that the respondent had another remedy, namely, an application to the Central Government under section 191 of the to revise the order of the Collector. Tandolkar, J., held that the writ could issue though the other remedy had not been pursued, as the order of assessment under item 51(8) was without jurisdiction. This was clearly wrong. The Collector had ample jurisdiction to decide under which item in the schedule the fountain pens had to be assessed to duty, and if he made a mistake in his decision that did not make his order one without jurisdiction: cp. Gulabdas & Co. vs Assistant Collector of Customs (1). The learned Judges of the appellate bench held that the writ was properly issued, not because the assessing authority had no jurisdiction to assess the goods under item 61(8), but because at the date the matter had come before them, the other remedy had become barred. This again is,in my view, plainly erroneous for a party who by his own conduct deprives himself of the remedy available to him, cannot have a better right to a writ than a party who has not so deprived himself. Normally and the present has not been shown to be other than a normal case a writ of mandamus is not issued if other remedies are available. There would be stronger reason for following this rule where the obligation (1) A.1,R. 1957 S C 733 766 sought to be enforced by the writ is created by a statute and that statute itself provide,% the remedy for its breach. It should be the duty, of the courts to see that the statutory provisions are observed and, therefore, that the statutory authorities are given the opportunity to decide the question which the statute requires them to decide. The fact that the Central Government had on a prior occasion decided, as appears in this case to have happened, that fountain pens of the kind which the respondent had imported, were liable to ditty under item 61(8) cannot furnish any reason justifying a departure from the normal rule or the issue of a writ without that government having been moved under section 191. This prior decision of the Central Government could be a reason for such departure only on the presumption that it would not change its view even if that view was shown to be incorrect. I cannot imagine that a court can ever make such a presumption. Therefore, it seems to me that it would have been proper to refuse the writ on the ground that the respondent had another remedy available to him which he had not pursued. On the present occasion, however, I do not wish ' to decide the case on that ground. Next, I feel the gravest doubt if the case is one for the issue of a writ of mandamus. It is of interest to observe that the respondent had in his petition to the High Court himself asked for a writ of certiorari. A writ of mandamus issues in respect of a ministerial duty imposed by a statute; it cannot issue where the duty to be performed is of a judicial nature, except for the purpose of directing that the judicial duty should be performed, that is, a decision should be given on the question raised. In John Shortt 's book on Informations, Mandamus and Prohibition it is stated at p. 256: "If the duty be of a judicial character a mandamus will be granted only where there is a refusal to perform it in any way; not where it is done in one way rather than another, erroneously instead of properly. In other words, the Court will only 767 insist that the person who is the judge shall act as such; but it will not dictate in any way what his judgment should be. If, however, the public act to be performed is of a purely ministerial kind, the Court will by mandamus compel the specific act to be done in the manner which to it seems lawful. " It does not seem to me that the duty which the created and the performance of which was sought to be enforced by a writ in the present case, can properly be said to be a ministerial duty. That duty was to decide which item in the Customs Tariff was applicable to the respon dent 's goods and to realise the customs duty specified in that item. In so far as the statute required the officer to realise the Customs levy, I find it difficult to see how it can be said to be a public duty to the performance of which the respondent had a legal right and without this right he was not entitled to the mandamus: see Ex parte Napier( '). In so far again, as the Act required the Customs Officer to choose the proper item in the Customs Tariff for assessment of the customs levy on goods, it in my view involves performance of work of a quasi judicial nature. The observation of Das, J., in Province of Bombay vs K. section Advani (), which I am about to read, fully fits this case: "If a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi judical act provided the authority is required by the statute to act judicially." 'Now the empowers the Customs authorities to impose a certain duty on goods imported and this no doubt prejudicially affects the importer. The Act, further clearly requires the authorities to proceed judicially in imposing that duty when a dispute arises, that is, after giving a hearing to the party affected: see as. 29, 31 and 32 of the Act. In this case a hearing (1) ; (2) , 725. 768 was in fact given to the respondent. This taken with the provisions as to a right of appeal from the decision Of the first assessing officer and as to the right to move the government in revision from the decision in the appeal, would clearly indicate that the authorities have to act judicially. In Gulabdas & Co. vs Assistant Collector(1) this Court proceeded on the basis that the duty of assessing the customs levy was of a judicial nature. Therefore I feel the gravest doubt, if the present is a case where a mandamus could at all issue. No doubt if a mandamus could not issue because the act which the statute required to be performed was not a ministerial one but judicial in its character, the case might be a fit one for the issue of a writ of certiorari. But that writ cannot, in any event, issue unless the proceedings disclosed an error apparent on their face. In issuing a certiorari again, the Court does not examine the judicial act questioned as if it was hearing an appeal in respect of it: see Satyanarayan Laxminarayan Hegde vs Mallikarjun Bhavanappa Tirumale(2). I do not propose to discuss this question further in the present case, for it was not considered by the High Court nor raised at our bar. I proceed on the basis that it was a case where an application for a mandamus Jay. The respondent, in substance, asked for and obtained a writ directing the Customs authorities to release the goods on payment of duty at the rate of 30 per cent. ad valorem as prescribed by item 45(3). This was on the basis that the duty should have been levied under that item and not under item 61(8) as the Customs authorities had done. The question then is, was there a clear duty on the assessing authorities to assess the goods under item 45(3) dealing with "Fountain pens, completed and not to do so under item 61(8) dealing with "Articles, other than cutlery and surgical instruments, plated with gold". All the learned Judges of the High Court agreed that this clear duty had to be established before the respondent could be held entitled to a mandamus and they found that the Act created such (1) A.I.R. 1957 S.C. 733. (2) [1960] 1 S.C.R. 890, 901. 769 a duty. They said that item 45(3) was a specific provision and therefore it had to be applied in preference to item 61(8) which was a general provision. I am unable to agree with this view. What, apparently, the learned Judges had in mind and applied, was the rule of construction of statutes that when two provisions in an Act are inconsistent with each other, if one is specific and the other general, the specific provision prevails over the general. Now, this rule like all other rules of construction, derives its justification from the fact that it assists in ascertaining the intention of the legislature. The reason why it so assists is this. When two provisions enacted by the legislature, are inconsistent and one cannot operate at all if the other is given full effect, a question arises as to what the legislature intended. Clearly, it could not have intended that a provision that it enacted should have no operation at all. Therefore it is to be presumed that the legislature intended that both the provisions would at least have some effect, if they could not have their full effect. The rule under discussion gives effect to this presumed intention of the legislature. In order to give effect to this intention, the rule provides that the provision with a narrower scope of operation should have effect so far as it goes, in preference to the provision with the larger scope of operation so as to restrict the operation of the latter which, without such restriction, would have wiped the narrower provision out of the statute book altogether. This rule permits both the provisions to have effect; it reduces the scope of one and prevents the other from becoming a dead letter. This aspect of the rule would, I believe, appear clearly from a statement of it by Sir John Romillyn pretty vs Solly(1) which I now set out: "The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general (1) ; ; 770 enactment must be taken to affect only the other parts of the statute to which it may properly apply. " The test of the applicability of the rule, therefore, is that one enactment must overrule the other. The one overruled is called specific only in comparison with the other which is in the same way only, called general. There need be nothing inherent in the nature of the enactments which, apart from a consideration of their comparative scopes, mark one out as specific and the other as general. When one overrules the other, it must include within its scope that other and so becomes general in comparison with the other. If two provisions were merely in conflict with each other, each affecting the other and none overruling the other and itself remaining in force, no question of calling one general and the other specific would arise. I should suppose, when Sir John Romilly talked of one enactment overruling the other. he meant completely overruling. That would make the rule sensible for, then it would clearly be a guide to the intention of the legislature which is that, all tile provisions are intended to have effect. This reason to support the rule would not exist if it was applied to a case where the provisions only partially affected each other for, then, both the provisions would have at least some operation. It would further be impossible to say from a comparison of the degrees of the effect of each on the other, if such comparison was possible, what the intention of the legislature was. I am not aware that it has ever been said that when two pro. visions partially affect each other, without one completely overruling the other, the legislature intended the one less affected should yield to the other or even the other way about. To such a case the rule would, in my view, have no application. The present is a case of that kind. I now confine myself only to items 45(3) and 61(8) for, no question as to any other item in the Tariff arises for applying the rule. If gold plated fountain pens were assessed under item 61(8), there would still be plenty of scope left for item 45(3) to operate upon, for, there would 771 be many kinds of complete fountain pens without gold plating. Likewise also if gold plated fountain pens were assessed under item 45(3), there might be many other gold plated articles for being assessed under item 61(8). Item 61(8) cannot be said to overrule item 45(3) completely. Item 61(8) cannot be said to be a general provision and item 45(3) a specific one. There is no scope here of applying the rule giving effect to a specific enactment in preference to the general. What then should be done? Under which item should the gold plated fountain pens then be assessed to duty? In my view, they were properly assessed under item 61(8). The item is clearly intended to apply to all gold plated articles other than the two expressly excepted, namely, cutlery and surgical instruments. There is no reason why this intention should not be given effect to. The Customs Tariff Schedule no doubt makes separate provisions for various individual articles. A fountain pen is one of such articles. If a gold plated fountain pen is for the reason that fountain pens are separately provided for, to be taken out Of item 61(8), all other articles separately dealt with in the schedule would have for the same reason, to be taken out of that item even though they happen to be plated with gold. The result of that would be that item 61(8) would apply to those articles which are not ,separately provided, and as Customs Tariff Schedules are made as exhaustive as they can be, there would be very few articles, if any, left to which item 61(8) might be applied. It does not, seem to me that this could have been intended. Item 61(8), as already stated, is intended to take in all gold plated articles except cutlery and surgical instruments. A proper construction of this item must give effect to this intention. Item 45(3) applies to fountain pens. Now it is not necessary for a fountain pen to be gold plated at all. Indeed the large majority of them are not gold plated. It is true that a fountain pen does not cease to be a fountain pen because it is plated with gold. It is, however, equally true that a gold plated fountain pen is an article plated with gold. A fountain pen may or may not be 772 gold plated but a gold plated article can only be a gold plated article. Therefore, it seems to me that item 45(3) was intended to apply to fountain pens simpliciter, that is, without gold plating or other embellishments which might properly bring them under another item in the schedule. This, in my view, would best harmonise the different items in the Tariff schedule and carry out the intention of the legislature. This can be illustrated by an example. Suppose a fountain pen was Studded with diamonds. Could it then be said that the legislature intended to pose on them a duty of 30 per cent. ad valorem under item 45(3) and the diamonds were not intended to be assessed under item 61(10) which deals with jewels and provides for a higher duty. I do not think that a possible view to take. I think, therefore, that the assessment in the present case under item 61(8) was proper. I would hence allow the appeal. By COURT: In accordance with the opinion of the majority, this appeal is dismissed with costs. Appeal dismissed.

Under a licence granted for the import of fountain pens at not less than Rs. 25 C.I.F. value, the respondent imported Sheaffer pens from Australia, which had nibs which were gold plated and also caps and clips of similar composition. The imported goods were assessed to duty by the customs authorities under item 61(8) of the First Schedule to the Indian Tariff Act, 1934, dealing with "Articles, other than cutlery and surgical instruments, plated with gold or silver" which provided for a duty Of 781 per cent. ad valorem, while the respondent claimed that the goods fell within item 45(3) which related to the article described as "Fountain pens, complete", the rate of duty being 30 per cent. ad valorem. Section 191of the , enabled any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government, but the respondent, without resorting to this remedy filed a writ application in the High Court of Bombay under article 226 of the Constitution of India to quash the imposition of the duty at the higher rate and to direct the release of the goods on payment of duty at 30 per cent. The Single judge who disposed of the application took the view that fountain pens did not cease to be fountain pens though they contained parts which were plated with gold, that so long as they were "Fountain pens, complete" only duty under item 45(3) could be levied and that, in the context of the items in the Tariff Schedule, it was not reasonably possible for any person to take a contrary view. Accordingly, the customs authorities were restrained from enforcing payment of any duty higher than 30 per cent. On appeal, the Appellate Bench of the High Court agreed with the interpretation of the tariff items and held that, though it was not the practice to entertain writ petitions by parties who had not exhausted their statutory remedies, as the remedy of applying in revision to the 95 754 Central Government had become time barred by the date of hearing of the appeal, it would not interfere with the order of the Single judge. Held, that the High Court was in error in its view that though the respondent had failed to exercise his statutory remedy, the fact that it had become time barred at the date of the hearing of the appeal against the order in the petition under article 22 6, was a good ground for the Court to exercise its discretion in granting the relief prayed for by the respondent in his petition. Held, further (Sarkar, J., dissenting): (i) that the consignment imported by the respondent was liable only to a duty of 30 per cent. under item 45(3) in the First Schedule to the Indian Tariff Act, 1934, and that the tariff items in the Schedule were not reasonably capable of any other construction. (2) that as in the present case the levy of the duty under entry 61(8) was manifestly erroneous, and the Central Board of Revenue had issued a ruling to the effect that fountain pens with nibs or caps which were gold plated fell with entry 61(8), it could not be said that the High Court had exercised its discretion improperly in entertaining the writ application so as to justify interference in an appeal under article I36 of the Constitution. Per Gajendragadkar, Wanchoo, Das Gupta and Rajagopala Ayyangar, JJ. The rule that a party who applies for the issue of a high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion. Union of India vs T. R. Varma, [1958] S.C.R. 499 and The State of Uttar Pradesh vs Mohammad Nook, ; , relied on. Per Sarkar, J. Item 61(8) in the First Schedule to the Indian Tariff Act, 1934, is intended to apply to all gold plated articles other than cutlery and surgical instruments, while item 45(3) is applicable to fountain pens simpliciter, that is, without gold plating. Such a view would harmonise the different items in the Tariff Schedule and carry out the intention of the legislature. The customs authorities were correct in assessing gold plated fountain pens under entry 61(8).

The respondent was charged for violating rule 126 (H), 2(d)(ii) of the Defence of India (Amendment) Rules. 1963 relating to Gold Control and Rule 126 I before the Magistrate First Class, Bangalore and under Sec. 135 of the and Rule 126 of the Defence of India Rules. The Magistrate acquitted the Respondent of the charge under Sec. 135 of the but convicted him for the offence under Defence of India Rules and sentenced him to rigorous imprisonment and fine of Rs. 2,000/ . The Central Excise Department preferred an appeal to the High Court against the acquittal of the Respondent and the Respondent filed a revision challenging his conviction and sentence. The High Court came to the conclusion that the offence under Rule 126 P(2)(ii) of the Defence of India Rules was proved against the Respondent and that the minimum sentence prescribed was six months. The High Court however released the Respondent on probation of good conduct for a period of three years under the on his furnishing Bond in the sum of Rs. 2,000/ with one surety, over ruling the objection raised on behalf of the department that the provisions of the cannot be invoked in case of offences under the Defence of India Rules which prescribe a minimum sentence of imprisonment. In an appeal by special leave the Department contended that the provisions of sections 3, 4 and 6 of the are inconsistent with the provisions of Defence of India Rules which prescribe minimum sentence of imprisonment for offences specified therein. 43 of Defence of India Act 1962 which is a later Act than the and which contains a non obstante clause must prevail over the provisions of the . The Respondent contended: (1) There is no inconsistency between the provisions of and provisions of Rule 126 (2) of the Defence of India Rules. The provisions of are based on the combination of the deterrent and reformative theories of the measure of punishment 1105 in due proportion far from being destructive of the provisions of the Defence of India Act. 1962 are supplemental thereto and provide and equivalent to the sentence prescribed therein (ii) The Defence of India Act, 1962 which was a temporary measure has long since expired. Therefore, Sec. 43 of the Act no longer operates as a bar to the respondent continuing to remain on probation of good conduct. Allowing the appeal the Court, ^ HELD: 1. Rule 126 prescribes a minimum sentence of imprisonment of six months and a maximum of 2 years. Sec. 3 of the provides that if a person if found guilty of offences mentioned therein under the India Penal Code and any offence punishable with imprisonment for not more than 2 years, and if such a person has no previous conviction and if the Court is of the opinion that having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation instead of sentencing him to any punishment, the Court may notwithstanding any other law for the time being in force, release him after due admonition. Sec. 4 and 5 deal with other aspects of release in probation. 43 of the Defence of India Act provides that the provisions of the said Act and Rules made thereunder shall have effect. notwithstanding anything inconsistent therewith contained in any enactment. The incompatibility between sections 3, 4 and 6 of the Probation offenders Act and Rule 126 P(2)(ii) of the Defence of India Rules is patent. The fact that the provisions of the two statutes are inconsistent is reinforced by Sec. 18 of Probation of offenders Act which save provisions of certain statues which prescribe minimum sentence. In view of the inconsistency between two statutes the must yield to the Defence of India Act.1962 in view of the language of Sec. 43 which embodies a non obstante clause and which is a later Act. [1109H,1110 A F]. Kumaon Motor Owners ' Union Ltd. & Anr. vs The State of U.P., ; referred to. Arvind Mohan Sinha vs Amulya Kumar Biswas & Ors, ; dissented from. Clauses (a), (b), (c) and (d) of Sec. 1(3) of Defence of India Act, 1962 correspond to clauses (b), (c), (d) and (e) of Sec. 6 of the General Clauses Act. In view of the said provisions liabilities and penalties incurred during the operation of the Defence of India Act are kept alive. In the present case, Criminal liability was incurred by the respondent before the Defence of India Act came to an end and penalty and punishment was also inured and imposed on him while the Defence of India Act was very much in force Therefore, the benefit of the provision of Probationers of Offenders Act cannot be invoked by the Respondents. [1112 E G]

Respondent No. 1 a Private Limited Company, was sanctioned a loan of Rs.30 lakh by the Appellant Corporation for the setting up of a factory. To secure this loan a mortgage deed of certain properties was executed by the Company and Respondents 2 to 4 as its directors had executed a personal Surety Bond without any security for its repayment. After obtaining a part of the sanctioned loan, which was to be given in phases, the Company became disinterested in availing of the balance amount. Consequently the Corporation demanded back the amount ahead taken together with interest and on the company 's failure to do so, it took over the Industrial Concern under section 29 of the Act and initiated steps to realise its dues by putting the property to sale. Having failed to recover the amount as no adequate offer was forthcoming despite repeated advertisements, it filed a petition before the Bombay High Court under sections 31 and 32 of the Act both against the Company as well as its directors sureties praying for a decree in the sum of Rs. 15,87,391.20 to be passed against them jointly and severally. The respondents contested the petition contending (a) that a petition under sections 31 and 32 of the Act could be filed only before the City Civil Court and the High Court had no jurisdiction to entertain it, (b) that no money decree can be passed under sections 31 and 32 of the Act, and (c) that the provision in the Act relating to enforcement of the 481 liablity of surety were ultra vires of Article 149 of the Constitution. The learned single judge relying on an earlier decision of the Bombay High Court reported in 1987 Mah. L.J 243 held that the High Court had to entertain the petition but on merits took the view that no money decree could be passed under sections 31 and 32 even against the sureties and since in the instant case the sureties had not given any security except their personal guarantee, the same could be enforced only in the ordinary course and not under the special machinery provided under the Act. In view of his findings on the first two pleas no arguments were entertained on the last plea and accordingly the petition was dismissed. The Division Bench while dismissing the appeal not only upheld the finding of the single Judge on merits but also overruled the decision reported in and held that the High Court had no jurisdiction to entertain a petition under sections 31 and 32 of the Act. The Corporation came up in appeal before this court by special leave against this decision of the High Court of Bombay. The impugned judgement was assailed by the Appellant Corporation both on merites and on the plea of juridiction. The respondents in reply asserted that the findings of the High Court on both pleas were unassailable. Allowing the appeal, by a majority decision, HELD: A. By the Full Court (i)The extent of the liability stated in the application as contemplated by sub section (2) of section 31 of the Act would represent the value of the claim of the Corporation and if since value is upto Rupees Fifty Thousand, the application would lie in the City City Court and if it is more than that amount it would lie in the High Court. This interpretation would give meaning and relevance to the words "having jurisdiction" used in sub section (11) of section 32. A different interpretation would render superfluous or otiose not only the words "having jurisdiction" but also the words and in the absence such court, by the High Court, occurring in the said sub section (11) inasmuch as in a Presidency town, in terms of territorial jurisdiction, the jurisdiction of the City Civil Court and of the High Court is co terminus [495D F] (ii) In the instant case the extent of liability of the surety being more than Rupees fifty thousand, the application could only have been filed and was rightly filed in the High Court and the finding in the 482 judgment under appeal to the contrary for holding that the High Court had no jurisdiction to entertain the application cannot be sustained. [497A] B. Per N. D. Ojha, J. for himself and Ranganathan, J. (iii) There can be no doubt that the term, "any surety" used in clause (aa) in sub section (1) of section 31 of the Act, will include not only a surety who has given some security but also one who has given only a personal guarantee. In our opinion, in a case where the relief claimed in the application under section 31(1) of the Act is for enforcing the liability of a surety who has given only a personal guarantee, sub section 4(A) of section 32 where no cause is shown and clause (da) of sub section (7) where cause is shown, contemplate cutting across and dispensing with the provisions of the Code of Civil Procedure from the stage of filing a suit to the stage of obtaining a decree against the surety, the passing of an order which can straightaway be executed as if it were a decree against the surety which may be passed in the event of suit being filed. [498F, 499E] (iv) In the absence of any provision such as sub section (8) of section 32 of the Act applying the manner provided in the Code for the execution of a decree against a surety only "as far as practicable" the entire provision contained in this behalf in the Code shall be applicable. This would be so in view of the use of the expression "any other law for the time being applicable to an industrial concern" used in section 46B of the Act. That the Code is applicable to an industrial concern also is not in dispute and cannot be doubted. [50OH 501A] (v) Even in the absence of section 46B of the Act the provisions of the Code would have been attracted in the matter of enforcing the liability of a surety in view of the decision of this Court in National Sewing Thread Co. Ltd. vs James Chadwick & Bros. Ltd., ; inasmuch as the District Judge while exercising jurisdiction under sections 31 and 32 of the Act is not a persona designate but a court of ordinary civil jurisdiction. [501B D] (Per section C. Agrawal, J. Dissenting.) It cannot be comprehended that while making provision which would enable passing of an order in the nature of a money decree against a surety on an application under section 31 of the Act, Parliament would have refrained from making a corresponding provision prescribing the procedure for carrying into effect such an order. It 483 appears to be more in consonance with the scheme of the Act and the object underlying sections 31 and 32 that by introducing the amendments in sections 31 and 32 of the Act the Parliament intended to place the surety on the same footing as the principal debtor so as to enable the Financial Corporation to obtain relief against the properties of the principal debtor as well as the surety [515E G] If considered in this perspective, the expression "enforcing the liability of any surety" in clause (aa) of section 31(1) would mean enforcing the liability of a surety in the same manner as the liability of principal debtor is enforced, by attachment and sale of property keeping in view that the proceedings under sections 31 and 32 of the Act are akin to an application for attachment of property in execution of a decree at a stage posterior to the passing of the decree. The relief of a money decree sought against the sureties respondents 2 to 4 was not maintainable and the said relief could not be granted to the appellant in proceedings under section 31 of the Act. As a result, the petition filed by the appellant must be dismissed and for the same reason this appeal must fail. [515G 516A, 516D E] Munnalal Gupta vs Uttar Pradesh Financial Corporation & Anr. ,A.I.R. 1975 Allahabad 416; Thressiamma Varghese vs K. section F. Corporation, A.I.R. 1986 Kerala 222; Maharashtra State Financial Corporation vs Hindtex Engineers Pvt. Ltd., ; Kayastha Training & Banking Corporation Ltd vs Sat Narain Singh, All. 433; M. K. Ranganathan & Anr. vs Government of Madras & Ors. ,[1955] 2 S.C.R. 374; The Central Talkies Ltd., Kanpur vs Dwarka Prasad, ; , referred to. Maganlal V. MIS. Jaiswal Industries, Neemach & Ors., ; ; M/s. Everest Industrial Corporation & Ors. vs Gujarat State Financial Corporation, [1987] 3S.C.C. 597; Parkash Playing Cards Manufacturing Co. vs Delhi Financial Corporation, ; Gujarat State Financial Corporation V. Natson Manufacturing Co. Pvt. Ltd. & Ors., , distinguished. West Bengal Financial Corporation vs Gluco Series Pvt. Ltd. ,A.I.R. , approved.

Between September 1974 and May 1977 the appellant re ceived more than 6 lakh rupees from its customers by issue of debit notes over and above the amounts received under regular invoices for manufacturing aluminium wire rods on job basis on their behalf. The Excise Authorities issued notice under Rule 10(i)(c) of the Central Excise Rules, 1944, to the appellant to show cause why the aforesaid amount called as "handling charges" should not be added to the invoice price and differential duty recovered. The Assistant Collector confirmed the demand after cause was shown which was upheld by the Appellate Collector and confirmed by the Tribunal. In the appeal to this Court, on behalf of the appellant it was contended; (1) that on the basis of Rule 6(b)(i) of the Valuation Rules the statutory levy price of aluminium should be adopted as being the price of comparable goods and with effect from 1.10.75 the assessable value should have been fixed under proviso (ii) to s.4(1)(a) or s.4(1)(b) at the same amount,. (2) that Rs.60 which was collected as handling charges was not to be taken into account for com puting duty and (3) that the notice was barred by limita tion. Dismissing the appeal, HELD: (1) With effect from 1.10.1975 a new s.4 has been inserted into the Central Excise & Salt Act, 1944 providing for the mode of valuation. The period involved in this appeal is from 27.9.1974 upto 31.5.1977. Therefore, the period upto 30.9.1975 would be covered by the old s.4 and from 1.10.1975 till 31.5.1977 the provisions of new section would apply for determining the assessable value. [320E] 319 (2) As per arrangement between the appellant and its customers, the appellant was permitted to lift the allotted ingots directly and after carrying out the manufacturing process it used to deliver the same to the customers. [321C D] (3) There has been no sale of the material between the appellant and the customers. The appellant was collecting Rs.600 per metric ton as conversion charges and Rs.60 per metric ton as handling charges. [320G] (4) The handling charges were intended to cover the appellant 's expenses in lifting the ingots. The Tribunal has come to the right conclusion in holding that the handling charges represented pre manufacturing cost and became part of the value for computation of duty. [321D E] (5) Rule 9 which corresponds to s.11 A of the Act pro vided a period of one year for taking of proceedings while Rule 10 corresponding to the present section 11 of the Act pre scribed a period of three months for such purpose. With effect from 6.8.1977, the period of six months was substi tuted for the period of three months and the period of five years substituted for the period of one year. [321B C] (6) The rule is intended to relate back and cover a period of five years from the date jurisdiction under the rule is invoked. The provision, is therefore, retrospective in operation. [321G] (7) Once the rule comes into existence and jurisdiction under the rule is invoked, it has got to cover a period upto five years preceding the date of issue of notice. [321H]

The respondent held a trade and import licence for foreign liquor as well as a vendor 's licence under the Bombay Abkari 51 398 Act. It kept liquor in a bonded warehouse. On April 2, 1948, the appellant asked the respondent to remove the liquor from the bonded warehouse after paying the necessary excise duty. The respondent paid the duty, got the transport permits and took over the liquor, some of which it sold. On December 16, 1948, the appellant issued a notification doubling the duty on foreign liquor and called upon the respondent to pay the additional duty on the liquor which was still lying in its godown. The respondent contended that the imposition of additional duty on the stock on which duty had already been paid at the time of its issue from the bonded warehouse was illegal. The appellants case was that the respondent was bound to pay the duty prevailing on the transport of liquor at the time of transporting the same from its premises to another place within the State of Bombay: Held, that the imposition of the additional excise duty was illegal. Once the duty had been paid the liquor could be transported free from any further imposition, except where it was transported to a region where the duty was different from the region where the duty was paid. There was no power in the State Government to impose duty at every movement during the course of the trade. Though there was power in the legislature to levy duty at every movement of liquor, it had not exercised that power; nor had it delegated such power to the State Government.

In the reasonable belief that the respondents were smuggling silver out of the country, the Customs officials apprehended the respondents at about midnight while they were going in a fishing vessel off the coast of Bombay and found 194 ingots of silver in the vessel. I hey were prosecuted for offences under section 120 B Indian Penal Code, section 135(1) (a) (ii) of the , section 5 of the Imports and Exports (Control) Act, 1947 and section 23(1A) of the Foreign Exchange Regulations Act, 1973. While the Magistrate found them guilty of all the offences the High Court on appeal set aside the conviction under the and Foreign Exchange Regulations Act. The appellant accepted the acquittal Under section 23(1A) of the Foreign Exchange Regulations Act but impugned the judgment of the High Court in so far as it set aside the conviction under section 135 (1) (a) (ii) of the . It was contended on behalf of the prosecution that the accused were knowingly concerned with fraudulent evasion or attempt at evasion of the prohibition imposed under the Export Trade Control order of 1968 on the export of silver without licence and that therefore they were guilty of an offence under the . The respondents, on the other hand, contended that the words "with respect to such goods" occurring in the section, refer to goods on which duty was chargeable as contemplated in the first part of the section and since no duty was chargeable on export of silver it did not fall within the words "with respect to such goods" and therefore there was no fraudulent evasion or attempt at evasion of the prohibition on export of silver without a licence imposed under the Export Trade Control order, 1968 issued under section 3 of the Imports and Exports (Control) Act, 1947, which was punishable under the . 501 Allowing the appeal, ^ HELD: Where goods are chargeable with duty and any person is knowingly concerned in any fraudulent evasion or attempt at evasion of such duty, the case would fall within the first part of the section, but where a prohibition is imposed with respect to any goods under the or any other law for the time being in force, then, irrespective of whether duty is chargeable on such goods or not, any person who is knowingly concerned in any fraudulent evasion or attempt at evasion of such prohibition, would be covered by the second or third part as the case may be. [506 E] In the instant case the Export Trade Control order, 1968 issued under section 3 of the Imports and Exports (Control) Act, 1947, prohibited the export of silver without a licence. On the facts established by the prosecution the accused were knowingly concerned in fraudulent evasion or attempt at evasion of such prohibition on export of silver and their case was therefore covered by the third part of section 135(1)(a)(ii). The provision enacted in section 135(1)(a)(ii) is divisible into three parts: the first part postulates that goods in respect of which the offence is committed must be goods chargeable with duty; the second and third parts are not concerned with the question whether any duty is chargeable on the goods or not. They speak only of fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under the or any other law in force in respect of any goods. What they contemplate is that in respect of goods in question there must be a prohibition imposed under the or any other law for the time being in force irrespective of whether duty E is chargeable on such goods or not and the accused must be concerned in any fraudulent evasion or attempt at evasion of such prohibition. The prohibition fraudulently evaded or sought to be evaded might be with respect to "any goods": it is not necessary that it should be with respect to goods on which duty is chargeable. The expression "with respect to such goods": had to be used at the end of the section because the second and third parts start with the words "if any person is in relation to any goods knowingly concerned in any fraudulent evasion or attempt at evasion". The words "such goods" have clearly reference to "any goods" at the commencement of the section. These words are not descriptive of the kind of goods to which the first part of the section is applicable. It is totally impermissible on a plain, natural construction of the language used in the section to read these words as importing the requirement that the goods must be chargeable with duty in order to fall within the second or third part of the section. [505 E, 506 A D]

On 23rd August, 1970, when the respondent was travelling by car, alleged to be belonging to his brother, from Ambala to Batala, the Customs officer intercepted him near the Beas river and forcibly taken along with the driver, Gurunam Singh to the Customs House at Amritsar. The respondent along with the driver was searched and the customs authorities took into possession Rs.33,500 in Indian currency, 10 gold sovereigns and the car in which he travelled. The Customs authorities, thereupon initiated departmental proceedings under section 110(II) of the and extended the period of issuing of the show cause notice under section 124 of the . These proceedings were quashed by an order of the Learned Single Judge of the High Court of Punjab on 24th April, 1372 following an earlier decision of that Court. After the said judgment, the respondent approached the customs authorities for the return of the money and the car on 11.5.1972. The gold sovereigns were not demanded because ac cording to the respondent these did not belong to him. He had been directed to come on the following day to get back the currency notes and the car. On the next day, however the Income Tax officer served the warrant of authorisation dated 10th May, 1972 issued under section 132 of the Income Tax Act, read with Rule 112(II) of the Rules on the respondent as well as on the customs department with the result the cash was taken possession of by the Income Tax authorities. Thereafter 295 the respondent filed another writ petition under Article 226 and 227 of A the Constitution. The customs authorities also filed an appeal against the decision of the Single Judge dated 24th April, 1972. The writ petition and the appeal were heard together by a Division Bench of the Punjab High Court. Dismissing the appeal and allowing the writ petition the High Court held that where the amount was seized by the customs authorities and the seizure was held illegal by the Court customs authorities were bound to return the money to the person entitled to it under the relevant provisions of section 110 of the ; that the Income Tax authorities could not seize such an amount from the customs authorities under section 132 of the Income Tax Act and authorisation of search and seizure was illegal if issued in the name of the person who did not have possession of the Article in respect of which it was issued. Hence this appeal by the revenue by special leave. Dismissing the appeal, the Court, ^ HELD: 1.1 on a construction of section 132 of Income Tax Act, 1961 and the context, in which the words "search", "possession", and "seizure" have been used in the said section and the rules indicate that there cannot be any order in respect of goods or moneys or papers which are in the custody of another department under legal authority where the location of the property was known to the Government one government department could not search another department and seize them. [301E F] 1.2 Sub Section (3) of section 132 of the Act uses the expression "who is in immediate possession or control thereof". "Possession" is a word of ambiguous meaning and its legal senses do not always coincide with the popular sense. Possession again may not always be synonymous with manual detention or physical retention of the goods or moneys. When the physical custody of the moneys and goods were with the customs authorities, and that too by a legal sanction and authority to have that custody, it cannot be said that possession as used in section 132 of the Act was still with the respondent Tarsem Kumar. [30 1F H] 1.3 Reading the expressions "retention" and "custody" in some of the sub sections of section 132 in the context these have been used, it cannot be said, that where an authority or a person has retention and custody with the legal sanction behind it, it was not the intention of the legislature to say that he was not in possession as contemplated in section 132 of the Income Tax Act, 1961. [302A B] 296 The Commissioner of Income Tax vs Ramesh Chander & Ors. , PunJab; Tarsem Kumar & Anr. vs The Commissioner of Income Tax, Haryana, Himachal Pradesh & Delhi & ors. , ; Laxmipat Chororia vs K.K. Ganguli Motilal and ors. vs Preventive Intelligence officer, Central Excise and Customs, Agra & Ors., Allahabad, distinguished and partly overruled. Noor Mohd. Rahimatulla Gillani vs The Commissioner of Income tax Vidrabha and Marathwada, Nagpurand Anr., [1976] Taxation Law Reports, 688, Bombay; Pannalal vs Income Tax officer, Ward. Chhindwara and ors. , 93 ITR p. 480 Madhya Pradesh; Gulab and Company and Anr. vs Superintendent of Central Excise (Preventive) Trichy, and ors. , Madras; Assainar and Anr. vs Income tax officer, Calicut and ors. , Kerala, overruled. 1.4 It is true that in the instant case, the title was not transferred to the Customs authorities by seizure under the . But in the context, in which the expressions "possession" and "seizure" have been used, it cannot be considered to mean that the possession was where the legal title was, physical possession was with the Customs authorities, title was with the respondent herein. In this context, the physical possession having regard to the language used is relevant and material. Physical possession was with the Customs authorities when the seizure authorisation was passed. Therefore, where the exact location of the property was known and there was no need to seize the money, the Income tax department could direct handing over the money to the Income tax authorities or take steps for such direction through appropriate authorities and not by resort to section 132 of the Income Tax Act. This is so because if the location was certain then there was nothing to search or look for. [304G H; 305A B]

The claim of his pension at the rate of 1sh 9d. to a rupee by the respondeent, a former Secretary of State Service Officer was allowed by the Accountant General, but the Union appellant reversed it and directed recovery of the excess payment. The respondent basing his claim under the second proviso to article 934 of the Civil Service Regulations moved the High Court under article 226 of the Constitution which was accepted. The Letters Patent Appeal filed by the Union was dismissed. The appeal by special leave, in view of the Constitution (28th amendment) Act 1972 introducing article 312A and the , was accepted and the court. ^ HELD: (i) Under section 12 of the Former Secretary of State Service Officers (Conditions of services) Act 1972, enacted by Parliament by virtue of article 312A of the Constitution the provisions of the Act or of any order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any law other than the Act or in any rule, regulation or order or other instrument, having effect by virtue of any law other than the 1972 Act. [863 B] (ii) The former members of the Indian Civil Service as a result of Ss. 8 & 12 of the Conditions of Service Act, 1972 are not entitled to claim payment of pension in sterling or outside India, or by converting $ 1000/ at the rate of exchange exceeding the rate of exchange of rupees thirteen one third to the pound sterling. [863 C] (iii) The Judgment of the High Court holding that the second proviso to article 934 of the Civil Service Regulations applied to the instant case, cannot be sustained by reason of change in law. [863 D] V. B. Raju vs State of Gujarat & Ors. [1975] 1 S.C.R. 797, followed.

Appeal No. 157 of 1959. Appeal from the judgment and decree dated January 5, 1956, of the Allahabad High Court in Special Appeal No. 205 of 1954 and Civil Appeal No. 158 of 1959. Appeal by special leave from the judgment and order dated January 15, 1952, of the Labour Appellate Tribunal of India, Allahabad, in Appeal No. Cal. 47 of 1951. M.C. Setalvad, Attorney General for India and G. C. Mathur, for the appellant. M. R. Krishna Pillai, for respondent No. 5 (In C.A. No. 157/1959). C. P. Lal, for the State of U. P. and Respondents Nos. 2 and 4 (In C. A. No. 157/59). O. P. Verma, for respondent No. 5 (in C. A. No. 158/59). December 12. The Judgment of the Court was delivered by DAs GUPTA, J. These two appeals raise the question of the maintainability of an application made by the Employers ' Association of Northern India, Kanpur on behalf of , the J. K. Cotton and Weaving Mills 187 Co., Ltd., a member of the Association in connection with the proposed termination of service of certain members of its Watch and Ward Staff. But before we come to the consideration of this question it is necessary to indicate in brief the long and tortuous path this matter has traveled before coming to us. The application of the Employers ' Association purported to be under clause 5(a) of the Government order dated March 10, 1948, as amended by a later order of May 15, 1948. This order was issued by the Governor of the United Provinces in exercise of the powers conferred on him by cl. (b), (c), (d) and (g) of section 3 and by section 8 of the U. P. The application after stating that a number of thefts of Dhoties had taken place in the Mill further stated that it was obvious to the management of the J. K. Cotton Spinning and Weaving Mills Co., Ltd., that this state of affairs could not exist and continue if Watch and Ward staff were carrying out their duties vigilantly, correctly and honestly. It stated further that the management having lost confidence in the honesty of the Watch and Ward Staff had decided to terminate the services of all the per. sons of the Watch and Ward Staff and to recruit fresh men from the employment exchange and that in lieu of notice of termination of service the management would pay to these persons 12 days ' wages in accordance with Standing Order No. 17A. The prayer made in the application was that "the Board be pleased to record the award entitling the J. K. Cotton and Weaving Mills Co., Ltd., to terminate the services of all the members of the Watch and Ward Staff whose names appear in Annexure A". During the pendency of the application before the Board the applicant withdrew its prayer as regards 5 of the workmen. As regards the remaining workmen, after rejecting the preliminary objection raised on their behalf that the Board had no jurisdiction to entertain the application, the Board held that "it would not be in the interests of either party or in the interest of industry to allow the remaining 27 sepoys to continue in the employment of the Mills" and the Board 188 accordingly made the award permitting the appellants to terminate the services of these 27 sepoys after giving them compensation at the rates set out by it starting with 15 days full wages and compensation for those with one year of service with additional amount of compensation on a graduated scale for longer periods of service. Against this order both the parties appealed to the Industrial Court. That court agreed with Board 's conclusion on the question of jurisdiction but pointed out that the "procedure adopted by the employers association was defective inasmuch as the mills did not apply to the Regional Conciliation Officer to discharge the sepoys in question". On merits the court held that the evidence justified the conclusion of the Board that the management had lost confidence in the members of the Watch and Ward Staff and that having regard to the Standing Orders their services should be terminated in accordance with the Standing Orders. It accordingly directed in modification of the order made by the Board "that the services of the 27 sepoys in question be terminated in accordance with the Standing Orders and that they would not be paid extra compensation as directed by the Board. " The workmen then appealed to the Labour Appellate Tribunal of India. The appellate tribunal held relying on an earlier decision of its own in Kanpur Mill Mazdoor Union vs Employers ' Association of Northern India (1) that the application under cl. 5(a) of the Government Order was not maintainable. Accordingly it allowed the appeal and set aside the award of the Board as well as the Industrial Court. J.K. Cotton and Weaving Mills Co., Ltd., thereupon filed an application under article 226 of the Constitution to the High Court of Judicature at Allahabad praying for a writ in the nature of certiorari calling for the records of the case from the Labour Appellate Tribunal of India and quashing the order of the Tribunal which has been mentioned above. Mr. Justice Chaturvedi, before whom this application came up for hearing held that the application under (1)(1952) 189 cl. 5(a) was maintainable and the Appellate Tribunal had erred in holding otherwise. Being however, of opinion that there had been undue delay in making this application for a writ, he dismissed the petition on that ground. In the Letters Patent appeal preferred by the company against this decision a preliminary objection was raised on behalf of the Union representing the workmen that the Allahabad High Court could not call for the records and quash the order of the Labour Appellate Tribunal of India as those records were in Calcutta and consequently beyond the reach of the Court. The learned Judges who heard the appeal upheld this objection and dismissed the appeal. They however issued a certificate under article 132(1)and article 133(1)(c) of the Constitution. Thereafterthe company also obtained special leave from this court to appeal directly against the order of the Labour Appellate Tribunal of India. These two appeals preferred one on the certificate granted by theHigh Court and the other on the strength of the special leave granted by this Court, have been heard together. The main controversy, as already indicated, is on the question of the maintainability of the application under cl. 5(a) of the Government order. This order issued by the Governor of the United Provinces in exercise of the powers conferred on him by the U. P. 'contains detailed provisions as regards the settlement of industrial disputes. The first clause provides for the constitution of Conciliation Boards consisting of three members. Clause 2 provides for the appointment of conciliation officers for specified areas. Clause 5 contains the important provisions as to commencement of proceedings before the Boards. It provides two ways of starting these proceedings: one mentioned in cl.(b) is by an order made in writing by the Provincial Government for enquiring into a matter in respect of which an industrial dispute has arisen or is likely to arise. The other method is by means of an application by an employee or recognised association of employers or registered trade union of workers or where there is 190 no such registered trade union the representatives not more than five in number duly elected by a majority of the workmen in the industry. Any of these may by an application in writing move the Board to inquire into an industrial dispute. This provision is in cl. 5(a) which may be set out in full: "5(a). Any employee or recognised association of employers or registered Trade Union of workmen or, where no registered trade union of workmen exists in any particular concern or industry, the representatives not more than five in number of the workmen in such concern or industry duly elected in this behalf by a majority of the workmen, in such concern or industry as the case may be, at a meeting held for the purpose, may by application in writing move the Board to enquire into any industrial dispute. The application shall clearly state the industrial dispute or disputes which are to be the subject of such inquiry. " Clause 10 provides for the constitution of industrial courts for specified areas. Clause 12 provides for appeals to this Court against the awards made by the Board. The other clauses up to clause 22 deal with the powers and procedure of the Board or the Industrial Court and with the duties of employers to permit certain meetings to be held. Then comes cl. 23 which is in these words: "Save with the written permission of the Regional Conciliation Officer or the Additional Regional Conciliation Officer concerned, irrespective of the fact whether an inquiry is pending before a Regional Conciliation Board or the Provincial Concilia tion Board or an appeal is pending before the Industrial Court, no employer, his agent or manager, shall during the continuance of an inquiry or appeal, discharge or dismiss any workman. " Section 24 provides that every order made or direction issued under the provisions of this Government order shall be final and conclusive. Clause 26 provides for penalties for contravention or an attempt to contravene any of the provisions of the order. A consideration of the scheme of this legislation 191 makes it clear that while two modes are provided in clauses 5(a) and 5(b) for the commencement of proceedings for settlement of industrial disputes generally, a special provision is made in clause 23 that if an enquiry is proceeding before a Regional Conciliation Board or the Provincial Conciliation Board or an appeal is pending before the Industrial Court, no workman shall be discharged except with the written permission of the Regional Conciliation Officer or the Additional Conciliation Officer concerned. The consequence in cl. 26 is that if any workman is discharged or dismissed during the continuance of such enquiry or appeal without such permission the employer shall be liable to fine or to imprisonment not exceeding three years or both. The heavy punishment provided for contravention of the order shows the importance attached by the legislating authority to the directions given by the Order. In deciding whether an application under cl. 5(a) was maintainable in the facts of the present case two questions arise for consideration. The first is whether an industrial dispute comes into existence as soon as an employer decides on the dismissal of some of the workmen and proposes to give effect to such decision. One view is that it is only the party aggrieved by the proposed dismissal, in other words, the workmen, who by objecting to the same can raise the dispute and that the employer cannot by his own proposal to dismiss the workmen be heard to say that a dispute had come into existence even before the workmen had a chance to object to the dismissal. The contrary view which has found favour with Mr. Justice Chaturvedi of the High Court is that even at the stage the employer proposes to dismiss his workmen it is a case of contemplated non employment which will come within the expression "industrial dispute". The other question is whether the provisions of cl. 23 of the order bar an application under cl. 5(a) during the con tinuance of any enquiry before the Regional Conciliation Board or the Additional Conciliation Board or during the pendency of the appeal before the Industrial Court. There is no dispute that on June 13, 192 1950 when the application under clause 5(a) was made an inquiry was in fact pending before a Conciliation Officer. It appears that on July 9, 1949 the Governor of the United Provinces made an order directing the Labour Commissioner of the United Provinces or a Conciliation Officer nominated by him in this behalf to redstart the adjudication proceedings between the J. K. Cotton & Weaving Mills Co., and section N. Shukla, a dismissed employee of the concern. The Adjudica tor was directed to conclude the adjudication and submit his award by August 15,1949. The time was extended by subsequent orders first to November 15, 1949 and then to March 31, 1950, again to June 30, 1950 and thereafter to September 30, 1950. It is true that at the time these orders extending time for submission of award were made the Governor had no authority to make these orders and these orders were invalid. They were validated by the provisions of section 3 of the U.P. Act XXIII of 1953. In view of this position of the law the learned Attorney General has not disputed that on June 13, 1950 when the application under cl. 5(a) was made an enquiry was actually pending before a Conciliation Officer. Consequently, before the management could make any order discharging or dismissing any of its workmen it was required by cl. 23 to obtain permission for the same from the Regional Conciliation Officer. The question is whether in spite of this provision in cl. 23 the employer could make and the Board entertain an application under cl. 5(a) on this question of proposed dismissal. We propose to consider this question first and for that purpose assume that an industrial dispute comes into existence as soon as the employer decides to dismiss his workmen and proposes to do so and that ordinarily he can make an application in such a dispute to the Board under the provisions of cl. 5(a). If such application is decided against the employer and no permission is given to make the proposed dismissal, no difficulty arises. What however is the position if on such an application the Board makes an order granting the employer the requisite permission to 193 dismiss his workmen? Under cl. 24 this order unless modified in appeal will be final and conclusive and shall not be questioned by any party thereto. So far as the workmen are concerned they will not be able to dispute the correctness of the order except in the mode provided in the Government order itself. What however is the position of the employer if in pursuance of the order made on his application under cl. 5(a) he discharges or dismisses his workmen? By doing so he will have clearly contravened the provisions of cl. 23, and will become liable to the severe penalty provided in cl. 26 a, penalty which might even extend to imprisonment up to three years. To remove this incongruity, says the learned Attorney General, apply the rule of harmonious construction and hold that cl. 23 of the order has no application when an order is made on an application under cl. 6(a). On the assumption that under cl. 5(a) an employer can raise a dispute sought to be created by his own proposed order of dismissal of workmen there is clearly this disharmony as pointed out above between two provisions viz., cl. 5(a) and cl. 23; and undoubtedly we have to apply the rule of harmonious construction. In applying the rule however we have to remember that to harmonise is not to destroy. In the interpretation of statutes the court,% always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule making authority also. On the construction suggested by the learned Attorney General it is obvious that by merely making an application under cl. (5) on the allegation that a dispute has arisen about the proposed action to dismiss workmen the employer can in every case escape the requirements of cl. 23 and if for one reason or other every employer when proposing a dismissal prefers to proceed under cl. 5(a) instead of making an application under cl. 23, cl. 23 will be a dead letter. A construction like this which defeats the intention of the rule making authority in cl. 23 must, if possible, be avoided. 25 194 It is hardly necessary to mention that this rule in cl. 23 was made with a definite purpose. The provision here is very similar to section 33 of the before its amendment, though there are some differences. It is easy to see however that the rule making authority in making this rule was anxious to prevent as far as possible the recrudescense of fresh disputes between employers and workmen when some dispute was already pending and that purpose will be directly defeated if a fresh dispute is allowed to be raised under cl. 5(a) in the very cases where cl. 23 in terms applies. There will be complete harmony however if we hold instead that cl. 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of cl. 23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a con flict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty vs Solly (1) (quoted in Craies on Statute Law at p. 205, 5th Edition) Romilly, M.R. mentioned the rule thus:"The rule is, that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment (1) ; , 610. 195 must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply". The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned: De Winton vs Brecon (1), Churchill vs Crease (2), United States vs Chase (3) and Carroll vs Greenwich Ins. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision, we must hold that cl. 5(a) has no application in a case where the special provisions of cl. 23 are applicable. As in the present case an inquiry was in fact pending before a Conciliation Officer, cl. 23 applied in respect of any discharge or dismissal of a workman and the employer could not take advantage of cl. 5(a) of the Government Order and such an application could not in law be entertained by the Board. In view of this conclusion it is unnecessary for us to consider the other question that was raised, viz., whether an industrial dispute within the meaning of cl. 5(a) comes into existence as soon as an employer decides on the dismissal of some of its workmen and proposes to give effect to such a decision. On the above conclusions we hold that the Labour Appellate Tribunal of India rightly held that the application under cl. 5(a) filed on June 13, 1950 was not maintainable and rightly set aside the awards of the Conciliation Board and the Industrial Court. The appeal against the order of the Labour Appellate Tribunal of India is therefore dismissed. As we have already pointed out above the order made by the appellate Bench of the High Court in the writ petition was based on its acceptance of the preliminary objection that the records of the Labour Appellate Tribunal being in Calcutta could not be (1)(1858) (2)(1828) 5 Bing. (3)(1890) ; (4)(1905) ; 196 reached by any writ of the Allahabad High Court. In view of our conclusion that the application under cl. 5(a) was not maintainable, the appellant was on merits not entitled to any writ and on that ground the appeal against the High Court 's order must also be dismissed. It is unnecessary to consider the question whether the High Court was right in its view as regards the preliminary objection and we express no opinion on the same. Both the appeals are accordingly dismissed with costs to the contesting respondent. There will be one set of hearing fee. Appeals dismissed.

Under sections 3 and 8 of the U. P. the Governor issued an Order dated March 10, 1948, making dletailed provisions for the settlement of Industrial Disputes. Clause 5(a) of the Government Order empowered, among others, a recognised association of employers to refer an industrial dispute for adjudication to the Conciliation Board. Clause 23 provided that no employer shall discharge or dismiss any workman during the pendency of an inquiry except with the written permission of the Regional Conciliation Officer, and Cl. 26 provided for penalties for contravention of Cl. 23. The appellant proposed to dismiss certain workmen. Though at the time there was a dispute pending inquiry, the appellant did not seek permission under cl. 23 to dismiss the workmen; but the Employers ' Associa tion of Northern India made an application under cl. 5(a) to the Board to adjudicate and give an award that the appellant was entitled to dismiss the workmen. The workmen contended that the reference under cl. 5(a) was incompetent as the appellant had ,not first taken proceedings under Cl. Held, that the application under cl. 5(a) of the G. O. was not 24 186 maintainable, as the employer could not take advantage of cl. 5(a) during the pendency of an inquiry when Cl. 23 was applicable. If cls. 5(a) and 23 were held to ' apply at the same time there would be disharmony as by resorting to cl. 5(a) when Cl. 23 was applicable, the employers would be contravening cl. 23 and rendering themselves liable to the penalties under section 26. But there was complete harmony if it was held that cl. 5(a) applied in all other cases of dismissal or discharge except where an inquiry was pending within the meaning of Cl. 23. Besides Cl. 23 was a special provision which prevailed over the general provisions in cl. Kanpur Mill Mazdoor Union vs Employers ' Association of Northern India, , approved. De Winton vs Brecon, , Churchill vs Crease, (182S) 5 Bing. 177 and United States vs Chase, ; , referred to.

The appellant was appointed as the Chief Labour officer by the Company in 1947. In December; 1955, the company terminated his services The appellant, claiming to be a Welfare officer, preferred an appeal to the Chief Inspector of Mines under r. 74(2) of the Mines Rules, 1955. ^ Held, that the appellant was not a Welfare officer and as such could not prefer an appeal under r. 74 (2). The Welfare officer mentioned in r. 74 (2) is the same officer as is mentioned in r. 72 (1) which rule contemplates a Welfare officer appointed in respect of one mine. But the appellant was an officer of several mines of the Company and not of one of such mines only.

The first respondent. a Company engaged in the manufacture of Sugar, employed workers both on a permanent basis as well as on a seasonal basis. The employer refused to pay bonus to the seasonal employees on the ground that they were not employed throughout the year, and the consequential dispute that arose between the management and the appellant union was referred to the Industrial Court under section 49 of the Madhya Pradesh Industrial Relations Act. The Industrial Court decided in favour of the workers and held that they were entitled to payment of the minimum bonus. The Writ Petition filed by the company was allowed and the award of the Industrial Court was quashed. The High Court interpreted the words "working days in any accounting year" in section 13 of the as meaning all those days of the year except holidays, and held that the workers were only entitled to proportionate bonus and not the minimum bonus guaranteed under section 10 of the Act. Allowing the Appeal of the Union to this Court, ^ HELD: 1. In the case of a factory which works seasonally during an accounting year, working days in any accounting year" can only mean those days of the year during which the employee concerned is actually allowed to work. Having regard to the scheme and purpose of the , the High Court was not justified in placing a different 959 construction on the meaning of the expression "working days in any A accounting year". [960H; 961A] 2. The judgment of the High Court is set aside and the award of the Industrial Court is restored. The bonus payable to the employees will carry interest at nine per cent per annum, from the date bonus became due until date of payment. [961B]

Pending an adjudication proceeding between the workmen and the Mills, the management of the appellant Mills served notices on thirty three of its workmen and thereafter suspended them for taking a leading part in a protracted go slow in contravention of the Industrial Disputes Act. For similar reasons, a few days later, it again served similar notices on fifteen others and suspended them. Thereafter the management made two applications under section 33 Of the Industrial Disputes Act for permission to dismiss the said workmen. The forty eight workmen in their turn applied under section 33A of the Act alleging breach of section 33 by the management in suspending them by way of punishment. The Industrial Tribunal found that the suspension was not by way of punishment and that there was a deliberate resort to go slow by the workmen which was unjustified; it refused the permission with respect to sixteen of the workmen on the ground of want of evidence but granted leave to the management to suspend the rest for seven days, thus disallowing the prayer for dismissal. It also rejected the workmen 's application under section 33A of the Act. Appeals were filed by both the parties and when they came up for hearing, the Appellate Tribunal allowed the workmen to withdraw their appeal so far as it related to their application under section 33A of the Act, with the result that the finding of the Tribunal that the suspension was not a punishment but only pending enquiry by the management and proceedings before the Tribunal, stood confirmed. While agreeing with all other findings of the Tribunal, the Appellate Tribunal took the view that the suspension ordered by the management was substantive punishment since the notices did not state that it was pending enquiry, and the subsequent application for permisson to dismiss the workmen was, therefore, mala fide and dismissed the appeal of the management. Held, that the material findings arrived at by the Industrial Tribunal not having been upset by the Appellate Tribunal, the only possible order on the applications of the management under section 33 of the Act was to permit it to dismiss the workmen provided there was evidence against them all. It was not open to the Industrial Tribunal to substitute some other form of punisliment and give permission therefor. 837 The Appellate Tribunal was clearly in error in holding that suspension, in the instant case, was not an interim order pending .enquiry and proceedings before the Tribunal under section 33, but substantive punishment, contrary to the finding of the Industrial Tribunal which stood confirmed by its own order permitting the withdrawal of the appeal against it by the workmen. The finding of the Industrial Tribunal that there was no evidence against sixteen workmen was, on the face of it, perverse, since the evidence against them was the same as against the thirty two others. As go slow was serious misconduct, insidious in nature and could not be countenanced, and since the workmen were found guilty of such misconduct, the management must be granted the permission to dismiss them.

The respondent was an employee of the appellant. After a domestic inquiry in respect of alleged misconduct he was dismissed. As an industrial dispute was pending an application was made to the Industrial Tribunal under section 33(2)(b) of the . The tribunal held that though the enquiry was fair, the findings of the enquiry Officer were perverse and therefore it did not give its approval the order of dismissal. By special leave the appellant came to this Court, contending that since the enquiry was held to be fair the Tribunal no jurisdiction to interfere with the findings of fact arrived at by the Enquiry Officer. HELD: (i) Earlier decisions of 'this Court make it clear that when in Industrial Tribunal is asked to give its approval to an order of dismissal under section 33(2)(b) of the Act, it can disregard the findings given y the Enquiry Officer only if the findings are perverse. The findings are reverse when either they are not based on legal evidence or they are such as no reasonable person could have arrived at on the basis of material before the domestic tribunal. [739 G 740 C] Bangalore Woolien, Cotton and Silk Mills Company Ltd. vs Dasappa B) (Binny Mills Labour Union) & Ors. [1960] II L.L.J. 39, Lard Krishna Textile Mills vs Its Workmen, ; , State lndhra Pradesh vs section Sree Rama Rao; , , applied. (ii) A domestic tribunal though not bound by the technical rules rout evidence contained in the Indian Evidence Act cannot ignore subsintive rules which would form part of principles of natural justice. The principle that a fact sought to be proved must be supported by statements lade in the presence of the person against whom the enquiry is held nd that statements made behind the back of the person charged are not be treated as substantive evidence, is one of such basic principles which. domestic tribunal cannot disregard. The previous statement of a witness not substantive evidence unless affirmed as truthful by the witness when actually examined in the presence of the workman charged. A finding by the domestic tribunal based not on substantive evidence but on hearsay, is perverse, because hearsay is not legal evidence. [743 C E; 745 Khardah Co. Ltd. vs Their Workmen, ; , State of ysore V.S.S. Makapur; , and M/s. Kesoram Cotton ills Ltd. vs Gangadhar, ; , relied on. (iii) In the present case the findings of the Enquiry Officer were held by the Industrial Tribunal to be perverse as they were not sed on legal evidence and were not justified by the material before m. [749 C E] 736

The appellant company owned jute mills situated in Raigarh in the State of Madhya Pradesh, and it had to bring raw material from many railway booking stations outside the State as there was no other means of transport both for bringing jute to the mills and for carrying the finished products to ports for export to foreign countries; the jute mills in West Bengal and Madras had facilities for direct shipment of their goods without carriage by rail to the ports, and so the prices of the products of the appellant could not be brought down to the competitive level for the purposes of export out of, or sale in, India. The appellant filed a complaint before the Railway Rates Tribunal under section 41 of the Indian Railways Act, 1890, on the allegations that the Railway administration had contravened the provisions of section 28 of the Act in that it had offered special rates for certain stations in its zone to Kanpur which were cheaper than those that were charged between Raigarh and some other railway stations, and that the charges levied for the freight of the appellant 's goods were unreasonable and excessive. The Tribunal found that competition between the goods of the Kanpur mills and the appellant 's goods had not been alleged or proved in the present case Held, that the mere fact that the goods of the Kanpur mills are transported at more favourable rates would not attract the provisions of section 28 of the Act, unless there is competition between the goods of the Kanpur mills and the appellant 's goods, and undue preference has been shown by the railway administration to the appellant 's competitor. Nitshill and Lesmahagow Coal Company vs The Caladonian Railway Company, (1874) 11 Railway and Canal Traffic Cases, 39, Denaby Main Colliery Company vs Manchester, Sheffield and Lincolnshire Railway Company, , Lancashire Patent Fuel Company Limited vs London and North Western Railway Company, (1904) XII Railway and Canal Traffic Cases, 77 and Lever Brothers, Limited vs Midland Railway Company, (1909) XIII Railway and Canal Traffic Cases, 301, relied on. Held, further, that in considering the question as to the reasonableness of the railway freight the relevant factors would mainly be the working costs of the railway administration and 237 other material circumstances, and neither the geographical location of the appellant on account of which it has to incur additional expenses of transport, nor the cost incurred in producing the jute goods nor the commodity prices prevailing in the market, have any relevance.

While dismissing, by its order dated 8 4 71, the writ petition filed by the appellant challenging the findings of the appellate and revisional orders passed by the Collector of Central Excise, Bombay and the Government of India respectively holding that the appellant had been rightly assessed and called upon to pay excise duty in respect of cloth manufactured in some powerlooms and purported to have been purchased by him from the owners of those powerlooms, the Bombay High Court, by its order dated 12th January, 1972 granted certificate of fitness to appeal under Article 133(1)(a) against the said judgment. Dismissing the appeal, the Court, ^ HELD: 1. The books of accounts produced by the appellant before the excise authorities contained clear evidence of the fact that the appellant himself was the owner of the yarn alleged to have been sold by Tejpal to the powerloom owners and that the appellant got back that very yarn in the shape of cloth after it was woven into cloth. Consequently the appellant himself was the manufacturer of the cloth in question and liable to excise duty in respect of the cloth so got manufactured in the powerlooms of private owners. [182G H; 183D]

An award, called the Standardisation Award, fixing the wages for different categories of workers in the textile mills at Ahmedabad was made by the Industrial Tribunal. The wages of clerks were, however, settled by a subsequent agreement bet ween the Ahmedabad Mill Owners ' Association and the Textile 221 Labour Association. Clauses 2 and 5 of the said agreement were as follows, " 2. That this agreement shall apply to all the Clerks employed in the local mills, i. e., persons doing clerical work, that is those who do routine work of writing, copying or making calculations and shall also include compounders and assistant compounders who are qualified and who are employed in the local mills. A separate scale for those of the employees who occupy the position lower than that of a full fledged Clerk but higher than that of an operative will be provided as under: Rs. 40 3 70 EB 4 90 5 105 This scale will be applicable in case of ticket checker, coupons seller, tally boy, scale boy, production checker, third counter, cloth measurer or yard counter, fine reporter, cloth/ yarn examiner, department store man, cut looker and those others who have not been included above but who can properly fall under the above category. " The respondents moved the Authority under section 16 of the (4 of 1936), for an order against the appellant for payment of. their delayed wages. They claimed to be semi clerks, lower than full fledged clerks but higher than operatives, and as such governed by cl. 5 of the agreement. The Authority held against them and the appellate Authority affirmed its decision holding that Cl. 2 Of the agreement determined the applicability of cl. 5 and since the respondents did not come within Cl. 2 they could not maintain their claim under cl. 5. The High Court, on an application under article 226 and article 227 of the Constitution, took a contrary view and set aside the orders of the Authorities and directed a rehearing. In this Court the appellant mills urged that (1) the High Court had exceeded its jurisdiction under articles 226 and 227 in setting aside the order of the appellate Authority and (2) the Authority had itself exceeded its jurisdiction under section 15 of the Act in entertaining the applications of the respondents made under section 16 of the Act. Held, that both the contentions must be negatived. The High Court has power under article 226 of the Constitution to issue a writ of certiorari not only in cases of illegal exercise of jurisdiction but also to correct errors of law apparent on the face of the record, although not errors of fact even though so apparent. No unfailing test can, however, be laid down when an error of law is an error apparent on the face of the record and the rule that it must be self evident, requiring no elaborate examination of the record, is a satisfactory practical test in a large majority of cases. Rex vs Northumberland Compensation Appeal Tribunal, ; and Nagendra Nath Bora V. Commissioner of Hills Division and Appeals, Assam, ; , referred to. 222 Viswanath Tukaram vs The General Manager, Central Railway, V. T., Bombay, , considered. A look at the two clauses is enough to show that the appel late Authority in construing them in the way it did committed an obvious and manifest error of law. It was clear that the two clauses applied to two distinct categories of persons and persons falling under cl. 5 could not be governed by cl. 2 and were not expected to satisfy the test prescribed by it. Under section 15 of the , the Authority in exercising its jurisdiction, made exclusive by section 22 of the Act, has necessarily to consider various questions incidental to the claims falling thereunder and, although it would be inexpedient to lay down any hard and fast rule for determining the scope of such questions, care should be taken not to unduly extend or curtail its jurisdiction. Whether a particular employee was an operative or one above the rank of an operative and below that of clerk arid, therefore within cl. 5 of the agreement, was a question intimately and integrally connected with wages as defined by the Act and as such fell within the jurisdiction of the Authority under section 15 of the Act. There could, therefore, be no substance in the contention that an employee falling within the category of those others mentioned in the last part of cl. 5, to whom no designation was attached, could not apply under section 15 of the Act. A. V. D 'Costa vs B. C. Patel, ; , referred to. Anthony Sabastin Almeda vs R. M. T. Taylor, (1956) 58 Bom. L.R. 899, distinguished.

minal Appeal No. 192 of 1959. Appeal by special leave from the judgment and order dated October 27, 1958, of the Andhra Pradesh High Court at Hyderabad in Criminal Revision Case No. 395 of 1958. M. C. Setalvad, Attorney General of India, T. V. R. Tatachari and T. M. Sen, for the appellant. R. Thiagarajan for N. section Mani, for respondent. April 4. The Judgment of the Court was delivered by SARKAR, J. The respondent was convicted by the Judicial Magistrate of Adoni in the State of Andhra Pradesh, under section 14 of the . His appeal to the Sessions Judge of Kurnool was dismissed. He then moved the High Court of Andhra Pradesh in revision and the revision petition was allowed. Hence the present appeal by the State of Andhra Pradesh. The facts found were these: On January 20, 1955, the respondent had come to Adoni on a passport granted by the Government of Pakistan which bore the date January 10, 1955. The passport had endorsed on it a visa granted by the Indian authorities which permitted the respondent to stay in India up to April 14, 1955. The respondent continued to stay on in India after that date. On some date, not precisely ascertainable from the record, he appears to have made a representation to the Government of India for extension of his visa till September 2, 1957, on grounds of health. The records do not however show what order, if any, was made on this representation. On September 3, 1957, an order dated August 9, 1957, made by the Government of Andhra, Pradesh requiring him to leave India, was served on the respondent As the respondent did not leave India as directed by this order, he was prosecuted with the result earlier stated. The passport showed that the respondent was born at Adoni in 1924 The respondent appears to have 740 produced an extract from the municipal birth register, which is not on the record, but presumably showed that he was so born. The only evidence on the record of the date when he left India, shows that must have been at the end of 1954 or early in 1955. There is evidence to show that he had been paying rent for his ,hop at Adoni for about ten years prior to 1958 and his parent section brothers, wife, and children were. and bad always been in India. The respondent was charged with the breach of the order to leave India which had been made under section 3 (2)(c) of the . Now the order could not be made on him, neither could he be convicted for breach of it, if lie was not a foreigner. That was the defence of the respondent, namely that he was not a foreigner. The question is, was a foreigner? The learned Judicial Magistrate found that by obtaining the passport from the Pakistan authorities, "he has disowned Indian nationality and has ceased to be an Indian National." He also held that section 9 of the did not apply to the case but section 8 of that Act did and that under that section a decision made by the Government that a person is a foreigner is final and such a decision had been made in this case regarding the respondent as the Government had decided not to grant him an extension of his visa. On these grounds he found that the respondent was a foreigner. It seems to us that both these grounds are untenable. Section 8 applies to a case where "a foreigner is recognised as a national by the law of more than one foreign country or where for any reason, it is uncertain what nationality if any is to be ascribed to a foreigner. " The section provides that in such cases the prescribed authority has power to decide of which country the foreigner is to be treated as the national and such decision shall be final. The section, therefore, applies to a person who is a foreigner and the question is of which foreign country he is a national. In the case of the respondent no such question arose and no decision could be or was made by any prescribed authority of such question. The learned Magistrate therefore clearly went wrong in relying on section 8. 741 As regards the passport, the learned Magistrate did not come to the finding that it proved the respondent to have been a Pakistani national all along. What he Al did was to think that the respondent who had earlier been an Indian national, had by obtaining it, disowned Indian nationality and ceased to be an Indian national. Now, section 9(2) of the , provides that if any question arises as to whether an Indian citizen has acquired the citizenship of another country, it shall be determined by such authority and in such manner as may be prescribed. Under r. 30 of the rules framed under that Act,, the authority to decide that question is the Central Government. So the question whether the respondent, an Indian citizen, had acquired Pakistani citizenship cannot be decided by courts. The learned Magistrate had no jurisdiction therefore to come to the finding on the strength of the passport that the respondent, an Indian citizen, had acquired Pakistani citizenship. Nor was there anything before the learned Magistrate to show that the Central Government had decided that the respondent had renounced Indian citizenship and acquired that of Pakistan. The learned Magistrate thought that the fact that the Central Government had refused to extend the respondent 's visa proved that it had decided that he had acquired Pakistani nationality. This view again was not warranted. There is nothing to show that the Central Government had refused to extend the respondent 's visa. Even if it had, that would not amount to a decision by it, that the respon dent, an Indian citizen, had acquired subsequently Pakistani nationality for there may be such refusal when an applicant for the extension had all along been a Pakistani national. Furthermore, in order that there may be a decision by the Central Government that an Indian citizen has acquired foreign nationality, an enquiry as laid down in r. 30 of the rules framed under the has to be made and no such enquiry had at all been made. That being so, it cannot be said that the Central Government had decided that the respondent, an Indian citizen, had acquired the citizenship of Pakistan. 742 The question whether a person is an Indian citizen or a foreigner, as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality, is not one which is within the exclusive jurisdiction of the Central Government to decide. The courts can decide it and, therefore, the learned Magistrate could have done so. He, however, did not decide that question, that is, find that the respondent had been a Pakistani national all along. On the evidence on the record such a finding would not have been warranted. For all these reasons we think that the conviction of the respondent by the learned Magistrate was not well founded. Coming now to the decision of the learned Sessions Judge, he seems to have based himself on the reasoning that the "conduct of the appellant" that is, the respondent before us, "in applying for extension of time shows that he is not a citizen of India and that he has acquired citizenship of Pakistan. If he were a citizen of India, he could have raised this plea and this question could have been decided by the Central Government as envisaged by Rule 30, sub Rule I of the Rules made under the and there was no necessity to apply for extension. " Quite plainly, the learned Sessions Judge was proceeding on the basis that the respondent had renounced his Indian citizenship and acquired Pakistani citizenship. As we have said earlier, that is not a question which is open to a court to decide and there is no evidence to show that it has been decided by the Central Government who alone has the power to decide it. The learned Sessions Judge did not direct himself to the question which lie could decide, namely whether the respondent had from the beginning been a Pakistani citizen. His decision, therefore, cannot also be sustained. We have examined the evidence on the record our.,elves and are unable to say that a conviction can be based on it. There can be no conviction unless it can be held on the evidence that the respondent is a foreigner, that is to say, a person who is not an Indian 743 citizen: see section 2(a) of the as amended by Act 11 of 1957. The evidence shows that the respondent did go to Pakistan, but the only evidence with regard to that is that he went there about the end of 1954 or the beginning of 1955. This evidence also indicates that he stayed there for a short time. He was all along paying the rent for his shop in Adoni. His family bad always been there. Therefore it can be said that he had never migrated to Pakistan. Clearly, a short visit to Pakistan would not amount to migrating to that country. The passport obtained by him from Pakistan would no doubt be evidence that he was a Pakistani national. As on the facts of this case he must be held to have been an Indian citizen on the promulgation of the Constitution, the passport can show no more than that he renounced Indian citizenship and acquired Pakistani nationality. Such evidence would be of no use in the present case for, in view of section 9(2) of the , a Court cannot decide whether an Indian citizen has acquired the citizenship of another country. The position then is this. The respondent has clearly discharged the onus that lay on him under section 9 of the to prove that he was not a foreigner, by proving that he was born and domiciled in India prior to January 26, 1950, when the Constitution came into force and thereby had become an Indian citizen under article 5(a) of the Constitution. He has further proved that he had never migrated to Pakistan. It has not been shown that the Central Government had made any decision with regard to him under section 9 of the that he has acquired a foreign nationality. Therefore, it cannot be held by any court that the respondent who was an Indian citizen has ceased to be such and become a foreigner. That being so, it must be held for the purpose of this case that the respondent was not a foreigner and no order could be made against him under section 3(l)(c) of the . Conviction for breach of such an order by the respondent would be wholly illegal. 744 Though we are upholding the decision of the High Court, we wish to observe that we do not do so for the reasons mentioned by it. It is unnecessary to discuss those reasons but we would like to point, out one thing, namely. that the High Court seems to have been of the opinion that article 7 of the Constitution contemplates migration from India to Pakistan even after January 26, 1950. We desire to make it clear that we should not be taken to have accepted or en dorsed the correctness of this interpretation of article 7. The reference in the opening words of article 7 to articles 5 and 6 taken in conjunction with the fact that both articles 5 and 6 are concerned with citizenship (at the commencement of the Constitution) apart from various other considerations would appear to point to the conclusion that the migration referred to in article 7 is one before January 26, 1950, and that the contrary construction which the learned Judge has put upon article 7 is not justified, but in the view that we have taken of the facts of this case, namely, that the respondent had never migrated to Pakistan, we do not consider it necessary to go into this question more fully or finally pronounce upon it. In the result we dismiss the appeal. Appeal dismissed.

The respondent was born in India in 1924 and had lived there all along till about the end of 1954. He had been paying rent for his shop in India for ten years upto about 1958 and his family was and had always been in India. At the end of 1954 or the beginning of 1955 lie went to Pakistan from where he returned on January 20, 1955, on a passport granted by the Pakistan Government which had a visa endorsed on it by the Indian authorities permitting him to stay in India up to April, 1955. The respondent applied to the Central Government for extension of the time allowed by the visa but the records did not Show What order, if any, had been made on it. As the respondent had stayed beyond the time specified in the visa, he was on September 3, 1957, served with an order made by the Government of Andhra Pradesh under section 3(2)(C) Of the , i946 requiring him to leave India. The order described him as a Pakisthan National. on his failure to comply with this order 93 738 he was prosecuted under section 14 of the . His defence was that he was an Indian national. The trying magistrate rejected this defence and convicted him holding (a) that the fact that the respondent obtained a Pakistan passport proved that he had disowned Indian nationality and ceased to be an Indian national and (b) that by refusing to extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner and under section 8 of the , such a decision was final. An appeal by the respondent was dismissed by the Sessions judge on the ground that the respondent 's application for extension of the time fixed by the visa proved that he had renounced his Indian nationality and had acquired the citizenship of Pakistan. The High Court of Andhra Pradesh set aside the conviction in revision. On appeal by the State of Andhra Pradesh, Held, that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own that the respon dent, an Indian national, had disowned his nationality and acquired Pakistan nationality for under section 9(2) of the , that decision could only be made by the prescribed authority which under the Rules framed under the Act was the Central Government. The fact that the Central Government had refused to extend the visa did not show that it had decided under the section that the respondent had renounced his Indian nationality and acquired Pakistan citizenship. In any event, in order that the Central Government might come to a decision under section 9(2) of the an enquiry as laid down in r. 30 Of the Rules framed under the Act had to be made and no such inquiry had been made. On the facts established, the respondent became an Indian citizen under article 5(a) of the Constitution when it came into force. He thereby discharged the onus laid on him by section 9 of the to prove that he was an Indian citizen when that was in dispute. The passport obtained by the respondent from the Pakistan Government would, therefore, only be evidence that the respondent had renounced Indian nationality and acquired Pakistan citizenship. Such evidence was however of no use in a court for no court could in view of section 9(2) of the decide whether an Indian citizen had renounced his citizenship and acquired the citizenship of a foreign country. Section 8 of the had no application to the case as it only applied where a foreigner is recognised as a national by the law of more than one foreign country or where it is uncertain what nationality is to be ascribed to a foreigner and in the present case that was not the question but the question was whether the respondent was an Indian or a foreigner. The respondent 's short visit to Pakistan had not amounted to a migration to that country. Query, whether article 7 of the Constitution contemplates migration from India to Pakistan after January 26, 1950.

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.

The respondent was prosecuted under clause 7(iii) of the Foreigner 's Order, 1958 read with Sec. 14 of the for over staying in India after the expiration of the permit. The respondent had entered India on a Pakistani passport. At the trial, the respondent produced evidence to show that he was a citizen of India when the Constitution came into force on 26 1 1950 and never migrated to Pakistan to obtain the citizenship of that country. He further stated that he had to obtain the Pakistani passport against was volition. The respondent further urged that without the decision of the Central Government u/s 9(2) of the as to whether he has acquired Pakistani citizenship or not, the prosecution under the was incompetent. The trial Magistrate acquitted the respondent, holding that he had proved that he was an Indian citizen who never migrated to Pakistan. The High Court upheld the acquittal as it thought that the prosecution had not proved the only case set up by it namely that the res pondent was not an Indian citizen on 26 1 1950. Quashing the charge and setting aside the acquittal, HELD : (1) The real and decisive question to be considered and decided was not whether the respondent possessed Indian nationality and citizenship on 26 1 1950 but whether he had lost that nationality at the time when he entered this country on Pakistani passport. Without a decision of the Central Government under section 9(2) of the on that question, the Criminal Court had no jurisdiction to acquit or convict a person. (II) After having examined the charge framed, the cases set up by the two sides, the contentions advanced in the trial court, the grounds of appeal of the High Court and those in the special leave petition, we think that the question regarding acquisition of foreign citizenship by the respondent was the decisive question. The respondent had himself raised the plea although he gave an impression that the prosecution was inviting a decision on the legality of the order of acquittal without obtaining a prior decision of the Central Government under Sec. 9(2) of the . It was not proper for the prosecuting authorities to have proceeded with a case without the determination of the said question under sec. 9(2) of the . [577 D] (III) In view. of the erroneous procedure adopted on behalf of the State in pressing for a conviction without obtaining a decision from the appropriate authority, quashing of the charge itself is the correct order. This would leave the State free to follow the proper procedure under law regarding the acquisition of foreign citizenship by the respondent and then to prosecute the respondent. (577 H) State of Andhra Pradesh vs Abdul Khader ; , Abdul Sattar vs State of Gujarat A.I.R. 1965 section C. 810 and Akbarkhan vs Union of India ; , followed. Kulathilmammu vs State of Kerala ; , referred to.

The point in controversy in this appeal was whether SS. 207 and 207A inserted into the Code of Criminal Procedure by the amending Act 26 of 1955, violated the provision of article 14 of the Constitution and were, therefore, invalid in law. The appellants were committed for trial to the Court of Session by the inquiring 397 Magistrate in a proceeding instituted against them on a Police report and he followed the procedure laid down in section 207A of the Code as required by section 207 Of the Code. The appellants moved the High Court for quashing the order of commitment on the ground that the provisions of section 207A introduced discrimination as against accused persons against whom proceedings were ' instituted on Police report and were unconstitutional in character. The High Court held against them. The contention was reiterated in this Court and it was sought to be made out that the provisions Of section 207A of the Code, in comparison and contrast to other provisions of Ch. XVIII of the Code, prescribed a less advantageous procedure for the accused persons in a proceeding started on Police report than the procedure prescribed for other cases in the succeeding sections of the chapter. Held, that sections 207 and 207A of the Code were not discriminatory and did not contravene article 14 of the Constitution and their constitutional validity was beyond question. Although there can be no doubt that the impugned sections introduced substantial difference in the procedure relating to commitment proceedings applicable to the two classes of cases, they did not in any way affect the procedure at the trial, and the true test of the constitutional validity of the classification they made, was whether it was reasonable and pertinent to the object the Legislature had in view, namely, a speedy trial of offences with the least possible delay. So judged there could be no doubt that the Legislature in prescribing the two different procedures at the commitment stage, one for proceedings instituted on Police report and the other for those that were not, had acted on a consideration that was reasonable and connected with the object it had in view. Budhan Choudhry vs The State of Bihar, ; , applied. Matajog Dobey vs H. C. Bhari, ; , Chiranjit Lal Chowdhuri vs The Union of India, ; , The State of Bombay vs F. N. Balsara, ; , The State of West Bengal vs Anwar Ali Sarkar, ; , Kathi Raning Rawat vs The State of Saurashtra, (1952) S.C.R. 435, Lachmandas Kewalram Ahuja vs The State of Bombay, ; , Qasim Razvi vs The State of Hyderabad, ; , Habeeb Mohamad vs The State of Hyderabad, ; and The State of Punjab vs Ajaib Singh; , , referred to.

The petitioner was Second in Command of 1. N. section Mysore which came to Bombay in the beginning of March, 1959. Soon thereafter he was arrested on a charge of murder under section 302 of the 'Indian Penal Code and was placed, and continued to remain, in naval custody all along during his trial. In due course he was placed on trial by a jury before the Sessions Judge, Greater Bombay, in which the jury returned a verdict of not guilty by a majority; but the Sessions judge disagreeing with the verdict of the jury made a reference to the High Court which convicted the petitioner under section 302 of the Indian Penal Code and sentenced him to imprisonment for life. On the same day when the High Court pronounced its judgment the Governor of Bombay passed an order under article 161 of the Constitution of India suspending the sentence passed by the High Court of Bombay on the petitioner until the appeal intended to be filed by him in the Supreme Court against his conviction and sentence was disposed of and subject meanwhile to the condition that he shall be detained in the Naval Jail custody. A warrant for the arrest of the petitioner which was issued in pursuance of the judgment of the High Court was returned unserved with the report that it could not be served in view of the order of the Governor suspending the sentence passed upon the petitioner. In course of the hearing of an application for leave to appeal to the Supreme Court filed by the petitioner in the High Court the matter of the unexecuted warrant was placed before it and a Special Bench of the High Court after examining the validity of the action taken by the Governor came to the conclusion that the order passed by the Governor was not invalid, that the order for detention of the petitioner in naval custody was not unconstitutional and that the sentence passed on the petitioner having been suspended the provisions of 0. XXI, r. 5, of the Supreme Court Rules did not apply and it was not necessary for the petitioner to surrender to his sentence. Thereafter the petitioner filed an application for special leave in the Supreme Court and also another application praying for exemption from compliance with the aforesaid rule and 498 for the hearing of his application for special leave without surrendering to his sentence. His plea at first was that as he was not a free man it was not possible for him to comply with the requirements of 0. XXI, r. 5, of the Supreme Court Rules; but he subsequently amended it to the effect that the aforesaid Rule did not apply to his case in view of the Governor 's order. On a reference of this matter by a Division Bench of this Court to the Constitution Bench for hearing, Held, that the Governor had no power to grant the suspension of sentence for the period during which the matter was sub judice in this Court. The Governor 's order suspending the sentence could only operate until the matter became sub judice in this Court on the filing of the petition for special leave to appeal whereupon this Court being in seisin of the matter would consider whether 0. XXI, r. 5 should be applied or the petitioner should be exempted from the operation thereof as prayed for. It would then be for this Court to pass such orders as it thought fit as to whether bail should be granted to the petitioner or he should surrender to his sentence or to pass such other order as the court deemed fit in the circumstances of the case. On the principle of harmonious construction and to avoid a possible conflict between the powers given under article 161 to the Governor and under article 142 to the Supreme Court, both of which are absolute and unfettered in their respective fields of operation, it must be held that. article 161,does not deal with the suspension of sentence during the time that article 142 is in operation and the matter is sub judice in the Supreme Court. Per KAPUR J. (dissenting) The language of article 161 is of the widest amplitude. It is plenary and an act of grace and clemency and may be termed as benign prerogative of mercy; The power of pardon is absolute and exercisable at any time. Rules framed under article 145 are subordinate legislation and cannot override the provisions of article 161 of the Constitution itself. While the Governor 's power to grant pardon is a power specially conferred upon him as was vested in the British Governor in British days, the power given to the Court under article 142(1) is a general power exercisable for doing complete justice in any cause or matter, and if they deal with the same matter then article 161 must prevail over article 142(1). The two powers may have the same effect but they operate in distinct fields on different principles taking wholly irreconcilable factors into consideration. The action taken by the executive being the exercise of overriding power is not subject to judicial review. It could not have been the intention of the framers of the Constitution that the amplitude of executive power should be restricted as to become suspended for the period of pendency of an appeal in the Supreme Court.

The appellants, in execution of a decree passed in a suit filed by them under section 180 of the U.P. Tenancy Act, 1939, on December 2, 1948 took back possession of the land in dispute from the respondent Nos. 4 and 5 (respondents for short). On the advent of the U.P. Zamindari Abolition and Land Reforms Act, 1950 ( '1950 Act ' for short) the respondents moved an application under section 232 of the 1950 Act to regain possession of the land on the ground that they hand acquired the status of adhivasis udder that Act. The Assistant Collector dismissed the application. The respondents appealed to the Additional Commissioner. The appellants contended that since the village in which the land in dispute was situated was put into consolidation under the U.P. Consolidation of Holdings Act, 1953 ( '1953 Act ' for short), the Additional Commissioner had no jurisdiction to hear the appeal. The appellants also submitted that a statement under section 8 and 8A of the 1953 Act was published in which they were shown as bhumidars of the land in question and the respondents had not objected to the entries. The Additional Commissioner, by his order dated June 15, 1956, allowed the appeal. Pursuant to that order the entries in the said statement were corrected and the respondents acquired possession of the land. The Board of Revenue, before whom the Additional Commissioner 's order was challenged, held that the Additional Commissioner had no jurisdiction to hear the appeal on merits. On September 11, 1958 the appellants moved an application under section 144 of the Code of Civil Procedure before the Sub Divisional officer praying for restitution of possession. This application and the subsequent appeals were rejected by the authorities. Dismissing a writ petition filed by the appellants the High Court held that the proceedings under section 144 of the Code of Civil Procedure could not succeed, but since the decision recorded by the authorities under the 1953 Act had become final, it was always open 288 to the petitioners to move the first appellate court to decide the appeal in terms of the decision of the consolidation authorities. Thereupon, in August 1966, the appellants filed a suit under sections 209 and 229 (b) of the 1950 Act against the respondents for a decree for possession on the ground that they were bhumidhars of the land in question under the 1950 Act. The Assistant Collector decreed the suit. The Additional Commissioner allowed the appeal filed by the respondents. The Board of Revenue dismissed the appellants ' second appeal. The appellants filed a writ petition in the High Court. A single Judge of the High Court dismissed the writ petition. A Division Bench of the High Court dismissed the special appeal filed by the appellants. Hence this appeal. The respondents contended: (i) that the suit was barred by limitation and the appellants were not entitled to the benefit of section 14(1) of the ; and (ii) that the suit was barred by section 49 of the 1953 Act. Dismissing the appeal, ^ HELD. 1. The party seeking benefit of section 14 (1) of the must satisfy the three conditions laid down in the section, namely, (i) that the Party as the plaintiff was prosecuting another civil proceeding with due diligence (ii) that the former proceeding and the later proceeding relate to the same matter in issue; and (iii) that the former proceeding was being prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.[297G H] 2. The expression 'other cause of a like nature ' will have to be read ejusdem generis with the expression 'defect of jurisdiction '. So construed the expression other cause of a like nature must be so interpreted as to convey something analogous to the preceding words from defect of jurisdiction '. The defect of jurisdiction goes to the root of the matter as the court is incompetent to entertain the proceeding. The proceeding may as well fail for some other defect. Not all such defects can be said to be analogous to defect of jurisdiction. Therefore, the expression other cause of a like nature on which some light is shed by the Explanation (C) to section 14 which provides "misjoinder of parties or causes of action shall be deemed to be a cause of like nature with defect of jurisdiction", must take its colour and content from the just preceding expression, defect of jurisdiction '. Prima facie it appears that there must be something taking to a preliminary objection which if it succeeds, the court would be incompetent to entertain the proceeding on merits. Such defect could be said to be of the like nature ' as defect of jurisdiction. Coversely if the party seeking benefit of the provision of section 14 failed to get the relief in earlier proceeding not with regard to anything connected with the jurisdiction of the court or some other defect of a like nature, it would not be entitled to the benefit of s 14. [300C G] India Electric Works Ltd. vs James Mantosh & Anr., ; , referred to. In a proceeding under section 144 of the Code of Civil Procedure, the party applying for restitution has to satisfy the court of first instance that a decree under which it was made to part with the property is varied or reversed or modified in appeal or revision or other proceeding or is set aside or modified in any suit instituted for the purpose and therefore, restitution 289 must be ordered. In such a proceeding, the party seeking restitution is not required to satisfy the court about its title or right to the property save and except showing its deprivation under a decree and the reversal or variation of the decree. [298C D; E] 4. In the instant case, the High Court rightly declined to grant benefit of the provision of sec 14 of the to the appellants because the second and third condition laid down in section 14 (1) were not satisfied. It may be assumed that the earlier proceeding under section 144 of Civil Procedure Code was a civil proceeding for the purpose of section 14 (1) and that the appellants were prosecuting the same with due diligence. But it is difficult to accept that the subsequent proceeding relates to same matter in issue as was involved in the earlier proceeding. The appellants merely claimed in their application under section 144 that in view of the reversal of the order by the Board of Revenue the respondents are not entitled to retain possession and that restitution should be evicted because the appellants lost possession under the order of the Additional Commissioner which was reversed by the Board of Revenue. The cause of action was the reversal of the order of the Additional Commissioner. When they failed to obtain restitution, the appellants filed a substantive suit under sections 209 and 229 (b) of the 1950 Act. It was a suit on title as bhumidars for possession against respondents alleging unauthorised retention of possession. It had nothing to do with the order of the Additional Commissioner. Moreover, the appellants failed in the earlier proceeding not on the ground that the authority had no jurisdiction to entertain the application nor on the ground that there was any other defect of a like nature, but on merits inasmuch as the authorities and the High Court held that in view of the decision of the authorities under 1953 Act, the appellants are not entitled to restitution. [301B; 299A; 298G H; 299A] 5. Once an allotment under section 49 of the U.P. Consolidation of Holdings Act, 1953 became final, a suit would not lie before a civil or revenue court with respect to rights in lands or with respect to any other matter for which a proceeding could or ought to have been taken under that Act. [301G] 6. In the instant case, once the village was denotified, as found by the authorities and the High Court the allotment made under the 1953 ACI became final and it could not be questioned in a suit before civil or revenue Court in view of the bar enacted in section 49. [302A B] 7. The appellants ' submission that after reversal of the Additional Commissioner 's order dated June 15, 1956 the respondents had neither a legal nor equatable right to be in possession, has no force. Assuming that the appellants had acquired the status of bhumidars the same was subject to the provision contained in section 20 (b) read with Explanation I of the U.P. Zamindari Abolition and Land Reforms Act, 1950 according to which, as correctly found by single Judge of the High Court, the respondents would become adhivasis of the land. Such adhivasis if they had lost possession were entitled to regain the same by making an appropriate application under section 232 of that Act. The respondents did move such an application which ultimately was accepted by the Additional Commissioner. Therefore, primarily, legally and additionally in equity, respondents have an iron clad case to be in possession against appellants. [294H; 296D G] 290

The appellants obtained a decree against the respondent in the court of Sub Judge, Bankura (West Bengal) on December 3, 1949. On March 28, 1950 they applied to the court which passed the decree to transfer the decree with a certificate of non satisfaction of the court at Morgan in the then State of Madhya Bharat. It was ordered accordingly. The Judgment debtors resisted the execute on the ground that the court had no jurisdiction to execute the same as the decree was that of a foreign court and that the same had been passed ex parte. The court accepted that contention and dismissed the execution petition on December 29, 1950. On April , 1951 the Code of Civil Procedure (Amendment) Act 2 of 1951 came into force. By this Act the Code was extended to the former State of Madhya Bharat as well as various other places. Meanwhile the appellants appealed against the order of the Additional District Judge Morena dismissing the execution petition to the High Court of Madhya pradesh. The appeal was allowed. In further appeal this Court 'restored the order of the Addl. District Judge, Morena. Thereafter on February 15, 1963 the appellants filed another execution case before the Bankura Court praying for the transfer of the decree to the Molrena Court for execution. The Bankura Court again ordered the transfer of the decree of the Morena Court. The judgment debtors resisted execute on the flowing grounds : (1) that it was barred by yes judicature in view of the aforesaid decision of this Court; (2) that it was barred by section 48 of the Code of Civil Procedure; (3) that it was barred by limitation and (4) that it was not executable because it was the decree of a foreign court. The Addl. District Judge rejected the objections. The High Court in appeal agreed with the executing court that the execution petition was neiber barred by resjudicata nor was there any bar of limitation but it disagreed with that court and held that the decree was not executable as the court which passed the decree was a foreign court. The decree holders filed the present appeal by special leave. The questions which fell for consideration were : (i) whether the decree under execution was not executable by courts situate in the area comprised in the former State of Madhya Bharat; (ii) whether the decree was barred by section 48 of the Code. HELD:Per Sikri C.J., Mitter, Hyde and Bhargava JJ. (1) (a) On the date when the decree under execution was passed foreign court ' was 8 1 100 SupCII71 816 defined in section 2(5) of the Code as a court situate beyond the limits of British India which had no authority in British India and was not established or continued by the Central Government. After the amendment of the Code of Civil Procedure in 1951. 'foreign court ' under the Code means a court situate outside India and not established or continued by the authority of the Central Government. Whether we take the earlier definition or the present definition the Bankura Court could not be considered as a foreign court within the meaning of that expression in the Code. 'Foreign judgment ' is defined as the 'judgment of a foreign court '. Hence the decree under execution could not be considered as a foreign decree for the purpose of the Code. [820 D G] Accordingly the judgment debtors could not take advantage of the provision in section 13(b) of the Code under which the ex parte decree of a foreign court is not conclusive. Nor could they take advantage of section 13(d). They were served with notice of suit but did not choose to appear before the court. Hence, there was Po basis for the contention that any principle of natural justice has been contravened. Further section 13(d) was not applicable because the judgment in question was not a foreign judgment. [821 D] (b) Under Private International Law a decree passed by a foreign court to whose juri diction a judgment debtor had not submitted is an absolute nullity only if the local legislature had not conferred jurisdiction on the domestic courts over the foreigners either generally or in specified circumstances. Clause (c) of section 20 of the Code provides that subject to the limitations mentioned in the earlier sections of the Code a suit can be instituted in a court within the local limits of whose jurisdiction the cause of action wholly or in part, arises. This provision confers jurisdiction on a court in India over foreigners when the cause of action arises within its jurisdiction. There was not dispute in the present case that the cause of action for the suit which led up to the decree under execution arose within the jurisdict on of the Bankura Court. Hence, it must be held that the suit in question was properly instituted. Accordingly the decree in question was a valid decree though it might not have been executable at one stage in courts in the former Indian States [822 B F] Sardar Gurdyal Singh vs The Rajah of Faridkot, 21 I.A. 171, referred to. (c) A combined reading of sections 2(12), 38, 39 and 40 of the Code shows that a decree can be transferred for execution only to a court to which the Code apple . This is what was ruled by this Court in Hansraj Nathu Ram 's case. But by the date the transfer in the present case was made, the Code had been extended to the whole of India. It followed that the transfer of the decree in question which was not a foreign decree, to the Morena Court, was in accordance with the provisions of the Code. [823 B D] Hansraj Nathu Ram vs Lalii Raja & Sons of Bankura, , applied. Narsingh Rao Shitole vs Shri Shankar Saran & Ors., ; , distinguished. (d) Section 20(1)(b) of the Code of Civil Procedure Amendment Act, 1951 by which the Code was extended to Madhya Bharat and other areas undoubtedly protects the right acquired and privileges accrued under the law repealed by the amending Act. But even by straining the language of the provision it cannot be said that the non executabilitv of the decree within a particular territory can be considered a privilege [824 E F] 817 Nor is it a 'right accrued ' within the meaning of section 20(1) (b) of the Code of Civil Procedure (Amendment) Act, 1950. In the first peace in order to get the benefit of this provision the non executability of the decree must be a right, and secondly it must be a right that had accrued from the provisions of the repealed law. It Was difficult to consider the non executability of the decree in Madhya Bharat as a vested right of the judgment debtors. The non executability in question pertained to the jurisdiction of certain courts and not to the "rights of the judgment debtors. Further the relevant provision of the Code of Civil Proedue in force in Madhya Bharat did not confer the, right claimed by the judgment debtors. All that had happened in view of the extension of +he Code to the whole of India in 1951 was that the decrees which could have been executed only by courts in British India were made ' executable in the whole of India. The change made was one relating to procedure and jury diction. By the extension of the Code to Madhya Bharat, want of jurisdiction on the part of the Morena Court was remedied and that court was now competent to execute the decree [825 A E] Hamilton Gell vs White , Abbot vs Minister for Lands, and G. Ogden Industries Pvt. Ltd. vs Lucas, , applied. (ii)The execution was also not barred, by section 48 of the Cod . For considering the true impact of cl. (b) of sub section 2 of section 48 of the Code provisions of articles 181 and 182 of the Limitation Act, 1908 have also to be taken into consideration. These provisions clearly go to indicate that the period prescribed under section 48(1) of the Code is a period of limitation. This interpretation is strengthened by the subsequent history of the legislation. By the section 48 of the Code is deleted. It , place has not been taken by article 136 of the Limtation Act of 1963 The High Courts also are now unanimous that section 48 of tile (ode is controlled by the provisions of the Limitation Act, 1908. [828 A C] Kandaswami Pillai vs Kamappa Chetty, A I R, , Durg vs Poncham, I.L.R. [1939] All. 647, Sitaram vs Chunnilalsa, I.L.R. , Amarendra vs Manindra, A.I.R. '1955 Cal. 269, Krishna Chandra v Parovatamma, A.I.R. 1953 Orissa 13 and Ramgopal vs Sidram, A.I.R. 1943 Bom. 164 referred to. Per Jaganmohan Reddy, J. (Concurring) No question of 'a vested right or privilege arose to entitle the respondent to challenge execution proceedings in Morena Court. The decree granted by the Bankura Court was executable by the Courts governed by the same Code, by talk Court which passed it or by the Court to which it was transferred. One the Code was made applicable to the whole of India by Amendment Act 11 of 1951 the decree was no longer a foreign decree qua the Morena Court which was a court under the Code to which the Bankura Court could transfer the decree for execution. No doubt in ' Shitole 's case it was observed that section 13 of the Code creates substantive rights and not merely procedural and therefore defenses that were open to the resno dents were not taken away by any constitutional changes, but the ratio of the decision was that the Gwalior Court not being a court that passed the decree after the coming into force of Act 11 of 1951 the Allahabad Court could not execute it. The impediment did not exist now in that the Bankura Court bad transferred the decree to a court under the Code. the plea that section 48 Civil Procedure Code presents a bar of limitation was also not tenable. [831 F H] 818 Kishendas vs Indo Carnatic Bank Ltd. A.I.R. 1958 A.P. 407 Sardar Gurdayal Singh V. Raja of Firidkote, 21 I.A. 171, Rai Rajendra Sardar Maloji Narsingh Rao Shirole vs Shri Shankar Saran, ; and Hansaj Nathuram Y. Lalji Raja

The father of respondent No. 1, who was the Zamindar, filed a suit for the eviction of Ramprasad, the father of appell ants, from certain plots of land. The suit was decreed and the Zamindar took possession of the land. Ramprasad filed an appeal before the Additional Commissioner but the same was dismissed . He preferred a second appeal before the Board of Revenue during the pendency of which the matter was compromised whereunder he was recognised as tenant of the land in dispute and the order of eviction was; thus nullified. He applied for restitution of possession under section 144 of the Code of Civil Procedure. The application was resisted by Dataram and others who had been inducted as tenants on these plots of land during the pendency of the appeals. The trial court allowed the application but its order was reversed by the Additional Commissioner who held that the newly inducted tenants could not be dispossessed. Its order was affirmed by the Board of Revenue in revision. Thereafter fie filed a petition under article 226 of the Constitution in the High Court challenging the decision of the Board of Revenue, but that petition was dismissed on merits. No appeal was attempted to be filed against the order of the High Court either by applying for a certificate or moving this Court for special leave under article 136. The appellants have instead come to this Court in appeal by special leave against the order of the Board of Revenue. A preliminary objection was raised on behalf of of the respondent that the appeal was not maintainable as it was barred by res judicata. Held, that the appeal was barred by res judicata as the decision of the High Court was on merits and would bind the parties unless it was modified or reversed in appeal or by other appropriate proceedings. 829 Daryao vs State of U. P., [19621 1 section C. R. 574 and Indian Aluminium Co. Ltd. V. The Commissioner of Income tax, West Bengal, (1961) 43 , relied on. Chandi Prasad Chokhani vs State of Bihar, [1962] 2 section C. R. 276, explained.

ons Nos. 66 and 67 of 1956, 8 of 1960, 77 of 1957, 15 of 1957 and 5 of 1958. Writ Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. Naunit Lal, for the petitioner in W. Ps. Nos. 66 and 67 of 1956. C. P. Lal, for respondent No. 1 in W. Ps. Nos. 66 and 67 of 1956. Bhawani Lal and P. C. Agarwal, for respondents Nos. 3a and 4 in W. Ps. Nos. 66 and 67 of 1956. C. B. Agarwala and K. P. Gupta, for the petitioner in W. P. No. 8 of 1960. Veda Vayasa and C. P. Lal, for respondent in W. P. No. 8 of 1960. Pritam Singh Safeer, for the petitioner in W. P. No. 77 of 1957. section M. Sikri, Advocate General, Punjab, N. section Bindra and D. Gupta, for respondent No. 1 in W. P. No. 77 of 1957. Govind Saran Singh, for respondent. No. 2 in W. P. No. 77 of 1957. A. N. Sinha and Raghunath, for petitioner in W. P. No. 15 of 1957. C. K. Daphtary, Solicitor General for India, N. S Bindra and R. H. Dhebar, for respondent in W.P. No 15 of 1957. 577 B. R. L. lyengar, for the petitioner in W. P. No. 5 of 1958. C. K. Daphtary, Solicitor General for India, R. Gana Dar pathy Iyer and R. H. Dhebar, for the respondent in W. P. No. 5 of 1958. March 27. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. These six writ petitions filed Gaje, under article 32 of the Constitution have been placed before the Court for final disposal in a group because though they arise between separate parties and are unconnected with each other a common question of law arises in all of them. The opponents in all these petitions have raised a preliminary objection against the maintainability of the writ petitions on the ground that in each case the petitioners had moved the High Court for a similar writ under article 226 and the High Court has rejected the said petitions. The argument is that the dismissal of a writ petition filed by a party for obtaining an appropriate writ creates a bar of res judicata against a similar petition filed in this Court under article 32 on the same or similar facts and praying for the same or similar writ. The question as to whether such a bar of res judicata can be pleaded against a petition filed in this Court under article 32 has been adverted to in some of the reported decisions of this Court but it has not so far been fully considered or finally decided; and that is the preliminary question for the decision of which the six writ petitions have been placed together for disposal in a group. In dealing with this group we will set out the facts which give rise to Writ Petition No. 66 of 1956 and decide the general point raised for our decision. Our decision in this writ petition will govern the other writ petitions as well. Petition No. 66 of 1956 alleges that for the last fifty years the petitioners and their ancestors have been the tenants of the land described in Annexure A attached to the petition and that respondents 3 to 5 are the proprietors of the said land. Owing to communal 73 578 disturbances in the Western District of Uttar Pradesh in 1947, the petitioners had to leave their village in July, 1947; later in November, 1947, they returned but they found that during their temporary absence respondents 3 to 5 had entered in unlawful possession of the said land. Since the said respondents refused to deliver possession of the land to the petitioners the petitioners had to file suits for ejectment under section 180 of the U. P. Tenancy Act, 1939. These suits were filed in June, 1948. In the trial court the petitioners succeeded and a decree was passed in their favour. The said decree. was confirmed in appeal which was taken by respondents 3 to 5 before the learned Additional Commissioner. In pursuance of the appellate decree the petitioners obtained possession of the land through Court. Respondents 3 to 5 then preferred a second appeal before the Board of Revenue under section 267 of the U. P. Tenancy Act, 1939. On March 29, 1954, the Board allowed the appeal preferred by respondents 3 to 5 and dismissed the petitioner 's suit with respect to the land described in Annexure A, whereas the said respondents ' appeal with regard to other lands were dismissed. The decision of the Board was based on the ground that by virtue of the U. P. Zamindary Abolition and Land Reforms (Amendment) Act XVI of 1953 respondents 3 to 5 had become entitled to the possession of the land. Aggrieved by this decision the petitioners moved the High Court at Allahabad under article 226 of the Constitution for the issue of a writ of certiorari to quash the said judgment. Before the said petition was filed a Full Bench of the Allahabad High Court had already interpreted section 20 of the U. P. Land Reforms Act as amended by Act XVI of 1953. The effect of the said decision was plainly against the petitioners ' contentions, and so the learned advocate who appeared for the petitioners had no alternative but not to press the petition before the High Court. In consequence the said petition was dismissed on March 29, 1955. It appears that section 20 has again been amended by section 4 of Act XX of 1954. It is under these 579 circumstances that the petitioners have filed the present petition under article 32 on March 14, 1956. It is plain that at the time when the present petition has been filed the period of limitation prescribed for an appeal under article 136 against the dismissal of the petitioners ' petition before the Allahabad High Court had already expired. It is also clear that the grounds of attack against the decision of the Board which the petitioners seek to raise by their present petition are exactly the same as the grounds which they had raised before the Allahabad High Court; and so it is urged by the respondents that the present petition is barred by res judicata. Mr. Agarwala who addressed the principal arguments on behalf of the petitioners in this group contends that the 'principle of res judicata which is no more than a technical rule similar to the rule of estoppel cannot be pleaded against a petition which seeks to enforce the fundamental rights guaranteed by the Constitution. He argues that the right to move the Supreme Court for the enforcement of the fundamental rights which is guaranteed by article 32(1) is itself a fundamental right and it would be singularly inappropriate to whittle down the said fundamental right by putting it in the straight jacket of the technical rule of res judicata. On the other hand it is urged by the learned Advocate General of Punjab, who led the respondents, that article 32(1) does not guarantee to every citizen the right to make a petition under the said article but it merely gives him the right to move this Court by appropriate proceedings, and he contends that the appropriate proceedings in cases like the present would be proceedings by way of an application for special leave under article 136 or by way of appeal under the appropriate article of the Con stitution. It is also suggested that the right to move which is guaranteed by article 32(1) does not impose on this Court an obligation to grant the relief, because as in the case of article 226 so in the case of article 32 also the granting of leave is discretionary. In support of the argument that it is in the discretion of this Court to grant an appropriate relief or refuse to do so reliance has been placed on the observations 580 made in two reported decisions of this Court. In Laxmanappa Hanumantappa Jamkhandi vs The Union of India & Another (1), this Court held that as there is a special provision in article 265 of the Constitution that no tax shall be levied or collected except by authority of law, cl. 1 of article 31 must be regarded as concerned with deprivation of property otherwise than by imposition or collection of tax and as the right conferred by article 265 is not a fundamental right con ferred by Part III of the Constitution, it cannot be enforced under article 32. In other words, the decision was that the petition filed before this Court under article 32 was not maintainable; but Mahajan, C.J. , Who spoke for the Court, proceeded to observer that "even otherwise in 'the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court". The learned Chief Justice has also added that when this position was put to Mr. Sen he fairly and rightly conceded that it was not possible for him to combat this position. 'To the same effect are the observations made by the same learned Chief Justice in Dewan Bahadur Seth Gopal Das Mohta vs The Union of India & Another (2). It will, however, be noticed that the observations made in both the cases are obiter, and, with respect, it would be difficult to treat them as a decision on the question that the issue of an appropriate writ tinder article 32 is a matter of discretion, and that even if the petitioner proves his fundamental rights and their unconstitutional infringement this Court nevertheless can refused. to issue an appropriate writ in his favour Besides, the subsequent decision of this Court in Basheshar Nath vs The Commissioner of Income tax, Delhi and, Rajasthan (3) tender to show that if a petitioner makes out a case of illegal contravention of his fundamental rights he may be entitled to claim an appropriate relief and a plea of waiver cannot be raised against his claim. It is true that the question of res judicata did not fall to be considered in that case but the tenor of all the judgments, which no doubt disclose a (1) , 772, 773 (2) ; , 776. (3) [1959] SUPP. 1 S.C.R. 528 581 difference in approach, seems to emphasise the basic importance of the fundamental rights guaranteed by, the Constitution and the effect of the decision appears to be that the citizens are ordinarily entitled to appropriate relief under article 32 once it is shown that their fundamental rights have been illegally or unconstitutionally violated. Therefore, we are not impressed by the argument that we should deal with the question of the applicability of the rule of res judicata to a petition under article 32 on the basis that like article 226 article 32 itself gives merely a discretionary power to the Court to grant an appropriate relief. The argument that article 32 does not confer upon a citizen the right to move this Court by an original petition but merely gives him the right to move this Court by an appropriate proceeding according to the nature of the case seems to us to be unsound. It is urged that in a case where the petitioner has moved the High Court by a writ petition under article 226 all that he is entitled to do under article 32(1) is to move this Court by an application for special leave under article 136; that, it is contended, is the effect of the expression "appropriate proceedings" used in article 32(1). In our opinion, on a fair construction of article 32(1) the expression "appropriate proceedings" has reference, to proceedings which may be appropriate having regard to the nature of the order, direction or writ which the petitioner seeks to obtain from this Court. The appropriateness of the proceedings would depend upon the particular writ or order which he claims and it is in that sense that the right has been conferred on the citizen to move this Court by appropriate proceedings. That is why we must proceed to deal with the question of res judicata on the basis that a fundamental right has been guaranteed to the citizen to move this Court by an original petition wherever his grievance is that his fundamental rights have been illegally contravened. There can be no doubt that the fundamental right guaranteed by article 32(1) is a very important safeguard for the protection of the fundamental rights of the citizen, and as a result of the said guarantee this 582 Court has been entrusted with the solemn task of upholding the fundamental rights of the citizens of this country. The fundamental rights are intended not only to protect individual 's rights but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this Court to uphold those rights. This Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution itself. It is because of this aspect of the matter that in Romesh Thappar vs The State of Madras (1), in the very first year after the Constitution came into force, this Court rejected a preliminary objection raised against the competence of a petition filed under article 32 on the ground that as a matter of orderly procedure the petitioner should first have resorted to the High Court under article 226, and observed that "this Court in thus constituted the protector and guarantor of the fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of Ruch rights". Thus the right given to the citizen to move this Court by a petition under article 32 and claim an appropriate writ against the unconstitutional infringement of his fundamental rights itself is a matter of fundamental right, and in dealing with the objection based on the application of the rule of res judicata this aspect of the matter had no doubt to be borne in mind. But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in section 11 of the Code of Civil Procedure has no doubt, some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is (1) ; 583 founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts ' of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under article 32. In considering the essential elements of res judicata one inevitably harks back to the judgment of Sir William de Grey, (afterwards Lord Walsingham) in the leading Duchess of King8ton 's case (1). Said Sir William de Grey, (afterwards Lord Walsingham) "from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose". As has been observed by Halsbury, "the doctrine of res judicata is not a technical doctrine applicable only to records; it is a fundamental doctrine of all courts that there must be an end of litigation" (2 ). Halsbury also adds that the doctrine applies equally in all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was a court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause" (p. 187, paragraph 362). "Res judicata", it is observed in Corpus Juris, "is a rule of universal law pervading every well regulated system of jurisprudence, and is put upon two grounds embodied in various maxims of the common law; the one, (1) 2 Smith Lead. 13th Ed., pp. 644, 645. (2) Halsbury 's Laws of England, 3rd, Ed., Vol. 15, para. 584 public policy and necessity, which makes it to the, interest of the State that there should be an end to s litigation interest republican ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause nemo debet bis vexari pro eadem causa" (1). In this sense the recognised basis of the rule of res judicata is different from that of technical estoppel. "Estoppel rests on equity able principles and res judicata rests on maxims which are taken from the Roman Law" (2). Therefore, the argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under article 32 cannot be accepted. The same question can be considered from another point of view. If a judgment has been pronounced by a court of competent jurisdiction it is binding between the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law. Therefore, if a judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his prayer for the issue of an appropriate writ on the ground either that he had no fundamental right as pleaded by him or there has been no contravention of the right proved or that the contravention is justified by the Constitution itself, it must remain binding between the parties unless it is attacked by adopting the procedure prescribed by the Constitution itself. The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. As Halsbury has observ ed "subject to appeal and to being amended or set aside a judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences"(3). Similar is the statement of the law in Corpus Juris: "the doctrine of estoppel by judgment does not rest on any superior authority of the court rendering the judgment, and a judgment of one court is a bar to an (1) Corpus juris, VOl. (2) Ibid. P. 745 (3) Halsbury 's Laws of England, 3rd Ed., VOl. 22, P 780, paragraph 1660. 585 action between the same parties for the same cause in the same court or in another court, whether the latter has concurrent or other jurisdiction. This rule is subject to the Limitation that the judgment in the former action must have been rendered by a court or tribunal of competent jurisdiction" (1). "It is, however ' essential that there should have been a judicial determination of rights in controversy with a final decision thereon" In other words, an original petition for a writ under article 32 cannot take the place of an appeal against the order passed by the High Court in the petition filed before it under article 226. There can be little doubt that the jurisdiction of this Court to entertain applications under article 32 which are original cannot be confused or mistaken or used for the appellate jurisdiction of this Court which alone can be invoked for correcting errors in the decisions of High Courts pronounced in writ petitions under article 226. Thus, on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Art,. 32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a court of competent jurisdiction, there has been a contest between the parties before the court, a fair opportunity has been given to both of them to prove their case, and at the end the court has pronounced its judgment or decision. Such a decision pronounced by a court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution. In our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustained. This Court had occasion to consider the application of the rule of res judicata to a petition filed under article 32 in Pandit M. section M. Sharma vs Dr. Shree Krishna Sinha (3). In that case the petitioner had moved this (1) Corpus juris Secundum, VOI. 50 (judgments), p. 603. (2) Ibid. p. 608. (3) 74 586 Court under article 32 and claimed an appropriate writ against the Chairman and the Members of the Committee of Privileges of the State Legislative Assembly. The said petition was dismissed. Subsequently he filed another petition substantially for the same relief and substantially on the same allegations. One of the points which then arose for the decision of this Court was whether the second petition was competent, and this Court held that it was not because of the rule of res judicata. It is true that the earlier decision on which res judicata was pleaded was a decision of this Court in a petition filed under article 32 and in that sense the background of the dispute, was different, because the judgment on which the plea was based was a judgment of this Court and not of any High Court. Even so, this decision affords assistance in determining the point before us. In upholding the plea of res judicata this Court observed that the question determined by the previous decision of this Court cannot be reopened in the present case and must govern the rights and obligations of the parties which are substantially the same. In support of this decision Sinha, C. J., who spoke for the Court, referred to the earlier decision of this Court in Raj Lakshmi Dasi vs Banamali Sen (1) and observed that the principle underlying res judicata is applicable in respect of a question which hag been raised and decided after full contest, even though the first Tribunal which decided the matter may have no jurisdiction to try the subsequent suit and even though the subject matter of the dispute was not exactly the same in the two proceedings. We may add incidentally that the Court which tried the earlier proceedings in the case of Raj Lakshmi Dasi (1) was a Court of exclusive jurisdiction. Thus this decision establishes the principle that the rule of res judicata can be invoked even against a petition filed under article 32. We may at this stage refer to some of the earlier decisions of this Court where the presedt problem was posed but not finally or definitely answered. In Janardan Reddy vs The State of Hyderabad (2), it (1) ; (2) ; , 370 587 appeared that against the decision of the High Court a petition for specialleave had been filed but the, same had been, rejectedand this was followed by petitions under article 32.These petitions were in fact entertained though on the merits they were dismissed, and in doing so it was observed by Fazl Ali, J., who delivered the judgment of the Court, that "it may, however, be observed that in this case we have not considered it necessary to decide whether an application under article 32 is maintainable after a similar application under article 226 is dismissed by the High Court, and we reserve our opinion on that question". To the same effect are the observations made by Mukherjea, J., as he then was, in Syed Qasim Razvi vs The State of Hyderabad (1). On the other hand, in Bhagubhai Dullabhabhai Bhandari vs The District Magistrate, Thana (2) the decision of the High Court was treated as binding between the parties when it was observed by reference to the said proceedings that "but that is a closed chapter so far as the Courts including this Court also are concerned inasmuch as the petitioner 's conviction stands confirmed as a result of the refusal of this Court to grant him special leave to appeal from the judgment of the Bombay High Court". In other words, these observations seem to suggest that the majority view was that if an order of conviction and sentence passed by the High Court would be binding on the convicted person and cannot be assailed subsequently by him in a proceeding taken under article 32 when it appeared that this Court had refused special leave to the said convicted person to appeal against the said order of conviction. The next question to consider is whether it makes any difference to the application of this rule that the decision on which the plea of res judicata is raised is a decision not of this Court but of a High Court exercising its jurisdiction under article 226. The argument is that one of the essential requirements of section 11 of the Code of Civil, Procedure is that the Court which tries the first suit or proceeding should be competent (1) (2) ; 588 to try the second suit or proceeding, and since the High Court cannot, entertain an application under article 32 its decision cannot be treated as res judicata for the purpose of such a petition. It is doubtful if the technical requirement prescribed by section 11 as to the Competence of the first Court to try the subsequent suit is an essential part of the general rule of res judicata; but assuming that it is, in substance even the said test is satisfied because the jurisdiction of the High Court in dealing with a writ petition filed under Art,. 226 is substantially the same as the jurisdiction of this Court in entertaining an application tinder article 32. The scope of the writs, orders or directions which the High Court can issue in appropriate cases under article 226 is concurrent with the scope of similar writs, orders or directions which may be issued by this Court under article 32. The cause of action for the two applications would be the same. It is the assertion of the existence of a fundamental right and its illegal contravention in both cases and the relief claimed in both the cases is also of the same character. Article 226 confers jurisdiction oil the High Court to entertain a suitable writ petition, whereas article 32 provides for moving this Court for a similar writ petition for the same purpose. Therefore, the argument that a petition under article 32 cannot be entertained by a High Court under article 226 is without any substance; and so the plea that the judgment of the High Court cannot be treated as res judicata on the ground that it cannot entertain a petition under article 32 must be rejected. It is, however, necessary to add that in exercising its jurisdiction under article 226 the High Court may sometimes refuse to issue an appropriate writ or order on the ground that the party applying for the writ is guilty of laches and in that sense the issue of a high prerogative writ may reasonably be treated as a matter of discretion. On the other hand, the right granted to a citizen to move this Court by appropriate proceedings under article 32(1) being itself a fundamental right this Court ordinarily may have to issue an appropriate writ or order provided it is shown that 589 the petitioner has a fundamental right which has been illegally or unconstitutionally contravened. It is not unlikely that if a petition is filed even under article 32 after a long lapse of time, considerations ma arise whether rights in favour of third parties which may, have arisen in the meanwhile could be allowed to be ' affected, and in such a case the effect of laches on the, part of the petitioner or of his acquirence may have to be considered; but, ordinarily if a petitioner makes out a case for the issue of an appropriate writ or ' order he, would. be entitled to have such a writ or, order under article 32 and that may be said to constitute a difference in the right conferred on a citizen to move the High Court under article 226 as distinct from the right conferred on him to move this Court. This difference must inevitably mean that if the High, Court has refused to exercise its discretion on the ground of laches or on the ground that the party has an efficacious alternative remedy available to him then of course the decision of the High Court cannot generally be pleaded in support of the bar of res judicata. if, however, the matter has been considered on the merits and the High Court has dismissed the petition for a writ on the ground that no fundamental right is proved or its breach is either not established or is shown to be constitutionally justified there is no reason why the said decision should not be treated as a bar against the competence of a subsequent petition filed by the same party on the same facts and for the same reliefs under article 32. In this connection reliance has been placed on the fact that in England habeas corpus petitions can be filed one after the other and the dismissal of one habeas corpus petition is never held to preclude the making of a subsequent petition, for the same reason. In our opinion, there is no analogy between the petition for habeas corpus: and petitions filed either under article 226 or under article 32. For historical reasons the writ for habeas corpus is treated as standing in a category by itself; but, even with regard to a habeas corpus petition it has now been held in England in Re, Hastings (No. 2) (1) that "an applicant for a writ (1) (1958) 3 All E.R. Q.B.D. 625. 590 of habeas corpus in a criminal matter who has once been heard by a Divisional Court of the Queen 's Bench Division is not entitled to be heard a second time by another Divisional Court in the same Division, since a decision of a Divisional Court of the Queen 's Bench Division is equivalent to the decision of all the judges of the Division, just as the decision of one of the old common law courts sitting in bank was the equivalent of the decision of all the judges of that Court. " Lord Parker, C. J., who delivered the judgment of the Court, has elaborately examined the historical genesis of the writ, several dicta pronounced by different judges in dealing with successive writ petitions, and has concluded that "the authorities cannot be said to support the principle that except in vacation an applicant could go from judge to judge as opposed to going from court to court" (p. 633), so that even in regard to a habeas corpus petition it is now settled in England that an applicant cannot move one Divisional Court of the Queen 's Bench Division after ano ther. The said decision has been subsequently applied in Re Hastings (No. 3) (1) to a writ petition filed for habeas corpus in a, Divisional Court of tile Chancery Division. In England, technically an order passed on a petition for habeas corpus is not regarded as a judgment and that places the petitions for habeas corpus in a class by themselves. Therefore we do not think that the English analogy of several habeas corpus applications can assist the petitioners in the present case when they seek to resist the application of res judicata to petitions filed under article 32. Before we part with the topic we would, however, like to add that we propose to express no opinion on the question as to whether repeated applications for habeas corpus would be competent under our Constitution. That is a matter with which we are not concerned in the present proceedings. There is one more argument Which still remains to be considered. It is urged that the remedies available to the petitioners to move the High Court under article 226 and this Court under article 32 are (1) [1959] 1 AR E.R. Ch.D. 698. 591 alternate remedies and so the adoption of one remedy cannot bar the adoption of the other. These remedies are not exclusive but are cumulative and so no bar of res judicata can be pleaded when a party who has filed a petition under article 226 seeks to invoke the jurisdiction of this Court under article 32. In support of this contention reliance has been placed on the decision of the Calcutta High Court in Mussammat Gulab Koer vs Badshah Bahadur (1). In that case a party who had unsuccessfully sought for the review of a consent order on the ground of fraud brought a suit for a similar relief and was met by a plea of res judicata. This plea was rejected by the Court on the ground that the two remedies though co existing were not inconsistent so that when a party aggrieved has had recourse first to one remedy it cannot be precluded from subsequently taking recourse to the other. In fact the judgment shows that the Court took the view that an application for review was in the circumstances ail inappropriate remedy and that the only remedy available to the party was that of a suit. In dealing with the question of res judicata the Court examined the special features and conditions attaching to the appli cation for review, the provisions with regard to the finality of the orders passed in such review proceedings and the limited nature of the right to appeal provided against such orders. In the result the Court held that the two remedies cannot be regarded as parallel and equally efficacious and so no question of election of remedies arose in those cases. We do not think that this decision can be read as laying down a general proposition of law that even in regard to alternate remedies if a party takes recourse to one remedy and a contest arising therefrom is tried by a court of competent jurisdiction and all points of con troversy are settled the intervention of the decision of the court would make no difference at all. In such a case the point to consider always would be what is the nature of the decision pronounced by a Court of competent jurisdiction and what is its effect. Thus considered there can be no doubt that if a writ petition filed by a party has been dismissed on the merits (1)(1909) 1 592 by the High Court the,, judgment thus pronounced is binding between the parties and it cannot be circumvented or by passed by his taking recourse to article 32 of the Constitution. Therefore, we are not satisfied that the ground of alternative remedies is well founded. We, must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under article 226 is considered on the merits as & contested matter, and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide 593 what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar The petition filed under article 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent Gaj petition under article 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res jadirata which has been argued as a preliminary issue in these writ petitions and no other. It is in the light of this decision that we will now proceed to examine the position in the six petitions before us. In Petition No. 66 of 1956 we have already seen that the petition filed in the High Court was on the same allegations and was for the same relief The petitioners had moved the High Court to obtain a writ of certiorari to quash the decision of the Revenue Board against them, and when the matter was argued before the High Court in view of the previous decisions of the High Court their learned counsel did not press the petition. In other words, the points of law raised by the petition were dismissed on the merits. That being so, it is a clear case where the writ petition has been dismissed on the merits, and so the dismissal of the writ petition creates a bar against the competence of the present petition under article 32. The position with regard to the companion petition, No. 67 of 1956, is exactly the same. In the result these two petitions fail and are dismissed; there would be no order as to costs. In Writ Petition No. 8 of 1960 the position is substantially different. The previous petition for a writ filed by the petitioner (No. 68 of 1952) in the Allahabad High Court was withdrawn by his learned counsel and the High Court therefore dismissed the said petition with the express observation that the merits had not been considered by the High Court in dismissing it and so no order is to costs was passed. This order the writ petition withdrawn which was 75 594 passed on February 3, 1955, cannot therefore support the plea of res judicata against the present petition. It appears that a co lessee of the petitioner had also filed a similar Writ Petition, No. 299 of 1958. On this writ petition the High Court no doubt made certain observations and findings but in the end it came to the conclusion that a writ petition was not the proper proceeding for deciding such old disputes about title and so it left the petitioner to obtain a declaration about title from a competent civil or revenue court in a regular suit. Thus it would be clear that the dismissal of this writ petition (on 17 3 1958) also cannot constitute a bar against the competence of the present writ petition. The preliminary objection raised against this writ petition is therefore rejected and it is ordered that this writ petition be set down for hearing before a Constitution Bench. In Petition No. 77 of 1957 the petitioner has stated in paragraph 11 of his petition that he had moved the High Court of Punjab by a writ petition under articles 226 and 227 but the same was dismissed in limine on July 14, 1957. It is not clear from this statement whether any speaking order was passed on the petition or not. It appears that the petitioner further filed an application for review of the said order under O. 47, r. 1 read with section 151 of the Code but the said application was also heard and dismissed in limine on March 1, 1957. It is also not clear whether a speaking order was passed on this application or not. That is why, on the material as it stands it is not possible for us to deal with the merits of the preliminary objection. We ' would accordingly direct that the petitioner should file the two orders of dismissal passed by the Punjab High Court. After the said orders are filed this petition may be placed for hearing before the Constitution Bench and the question of res judicata may be, considered in the light of our decision in the present group. In Petition No. 15 of 1957 initially we had a bare recital that the writ petition made by the petitioner in the Punjab High Court had been dismissed. Subsequently, however, the said order itself has been 595 produced and it appears that it gives no reasons for dis missal. Accordingly we must hold that the said order does not create a bar of res judicata and so the petition will have to be set down for hearing on the merits. In Writ Petition No. 5 of 1958 the position is clear. The petitioner had moved the Bombay High Court for an appropriate writ challenging the order of the Collector in respect of the land in question. The contentions raised by the petitioner were examined in the light of the rejoinder made by the Collector and substantially the petitioner 's case was rejected. It was held by the High Court that the power conferred on the State Government by section 5(3) of the impugned Act, the Bombay Service Inam (Useful to the Community) Abolition Act, 1953, was not arbitrary nor was its exercise in this particular case unreasonable, or arbitrary. The High Court also held that the land of the petitioner attracted the relevant provisions of the said impugned statute. Mr. Ayyangar 'for the petitioner realised the difficulties in his way, and so he attempted to argue that the contentions which he wanted to raise in his present petition are put in a different form, and in support of this argument he has invited am attention to grounds 8 and 10 framed by him in paragraph X of the petition. We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the grounds raised by the petitioner in that behalf are substantially the same. Therefore the decision of the High Court pronounced by it on the merits of the petitioner 's writ petition under article 226 is a bar to the making of the present petition, under article 32. In the result this writ petition fails and is dismissed. There would be no order as to costs. Petition dismissed.

Where the High Court dismisses a writ petition under article 226 of the Constitution after hearing the matter on the merits on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified, a subsequent petition to the Supreme Court under article 32 of the Constitution on the same facts and for the same reliefs filed by the same party would be barred by the general principle of res judicata. There is no substance in the plea that the judgment of the High Court cannot be treated as res judicata because it cannot 575 under article 226 entertain a petition under article 32 of the Constitution. Citizens have ordinarily the right to invoke article 32 for appropriate relief if their fundamental rights are illegally on unconstitutionally violated and it is incorrect to say that article 32 merely gives this Court a discretionary power as article 226 does to the High Court. Basheshar Noth vs Commissioner of Income tax, Delhi and Rajasthan, [1959] SUPP. 1 S.C.R. 528, referred to. Laxmanappa Hanumantappa jamkhandi vs The Union of India; , , and Diwan Bahadur Seth Gopal Das Mohla vs The Union of India, ; , considered. The right given to the citizens to move this Court under article 32 is itself a fundamental right and cannot be circumscribed or curtailed except as provided by the Constitution. The expression "appropriate proceedings" in article 32,(1), properly construed, must mean such proceedings as may be appropriate to the nature of the order, direction or writ the petitioner seeks from this Court and not appropriate to the nature of the case. Romesh Thappar vs The State of Madras, ; , referred to, Even so the general principle of res judicata, which has it. ; foundation on considerations of public policy, namely, (1) that binding decisions of courts of competent jurisdiction should be final and (2) that no person should be made to face the same kind of litigation twice over, is not a mere technical rule that cannot be applied to petitions under article 32 of the Constitution, Duchess of Kingston 's case, 2 Smith Lead. 13th E d. 644, referred to. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under article 226 passed after a hearing on merits as aforesaid must bind the parties till set aside in appeal as provided by the Constitution and cannot be circumvented by a petition under article 32. Pandit M. section M. Sharma vs Dr. Shree Krishna Sinha, and Raj Lakshmi Dasi vs Banamali Sen, [1053] S.C.R. 154, relied on. Janardan Reddy vs The State of Hyderabad, ; , Syed Qasion Rezvi vs The State of Hyderabad, [1953] S.C.R. 589 and Bhagubhai Dullabhabhai Bhandari vs The District magistrate, Thana; , , referred to. It was not correct to say that since remedies under article 226 and article 32 were in the nature of alternate remedies the adoption of one could not bar the adoption of the other, Mussammat Gulab Koer vs Badshah Bahadur, (1909) 13 1197 held inapplicable. 576 Consequently, (1) where the petition under article 226 is considered on the merits as a contested matter and dismissed by the High Court, the decision pronounced is binding on the parties unless modified or reversed by appeal or other appropriate proceedings under the Constitution; (2) Where the petition under article 226 is dismissed I not on the merits but because of laches of the party applying for the writ or because an alternative remedy is available to him, such dismissal is no bar to a subsequent petition under article 32 except in cases where the facts found by the High Court may themselves be relevant even under article 32; (3) Where the writ petition is dismissed in limine and an order is pronounced, whether or not such dismissal is a bar must depend on the nature of the order; (4) if the petition is dismissed in limine without a speaking order, or as withdrawn, there can be no bar of res judicata.

These two petitions challenged the constitutional validity of the Punjab Special Powers (Press) Act, 1956 (No. 38 of 1956) passed by the State Legislature in the wake of the serious communal tension that had arisen between the Hindus and the Akali Sikhs over the question of the partition of the State on a linguistic and communal basis. The petitioners were the editors, printers and publishers, respectively, of the two daily newspapers, Pratap and Vir Arjun, printed and published simultaneously from jullundur and New Delhi, whose admitted policy was to support the "Save Hindi agitation". Two notifications under section 2(1)(a) of the impugned Act were issued against the editor, printer and publisher of the two papers published from Jullundur by the Home Secretary prohibiting him from printing and publishing any matter relating to the 'Save Hindi agitation ' in the two papers for a period of two months. Two other notifications in identical terms were issued under section 3(1) of the impugned Act against the other petitioner, the editor, printer and publisher of the two papers in New Delhi prohibiting him from bringing into the Punjab the newspapers printed and published in. New Delhi from the date of the publication of the notifications. Unlike section 2(1) of the impugned Act which provided a time limit for the operation of an order made thereunder as also for a representation to be made by the aggrieved person, section 3 of the Act made no such provision. It was contended on behalf of the petitioners that both the sections were ultra vires the State Legislature inasmuch as they infringed articles 19(1)(a) and 19(1)(g) of the Constitution and were not saved by articles 19(2) and 19(6) of the Constitution. It was urged that the sections imposed not merely restrictions but a total prohibition against the exercise of the said fundamental rights by prohibiting the publication of all matters relating to the 'Save Hindi agitation ' under section 2(1)(a) and by a complete prohibition of the entry of the two papers into the whole of the Punjab under section 3(1) of the Act, that even supposing 309 that the sections merely imposed restrictions and not a total prohibition, the restrictions were not reasonable, that the sections gave unfettered and uncontrolled discretion to the State Government and its delegate, that the Act did not provide for any safeguard against an abuse of the power, that the language of the sections being wide enough to cover restrictions both within and cutside the limits of constitutionally permissible legislative action they were ultra vires the Constitution and that the notification under section 2(1)(a) of the Act as made would prevent even the publication of anything against the 'Save Hindi agitation ' and should have been restricted to such matters alone as were likely to prejudicially affect the public order. Held, that the restrictions imposed by section 2(1)(a) of the impugned Act were reasonable restrictions within the meaning of article 19(2) of the Constitution and the petition directed against the notifications issued thereunder must fail, but since section 3 Of the Act did not provide for any time limit for the operation of an order made thereunder nor for a representation by the aggrieved party to the State Government, the restrictions imposed by it were not reasonable restrictions under article 19(6) of the Constitution and the petition directed against the notifications made thereunder must succeed. Held further, that there can be no doubt that the right of freedom of speech and expression carries with it the right to propagate one 's views and the several rights of freedom guaranteed by article 19(1) of the Constitution are exercisable throughout India but whether or not any restrictions put on those rights amount to a total prohibition of the exercise of such rights must be judged by reference to their ambit. So judged, the restrictions imposed in the instant cases with regard to the publications relating to only one topic and the circulation of the papers only in a particular territory could not amount to a total prohibition of the exercise of the fundamental rights. The expression "in the interest of" in articles 19(2) and 19(6) of the Constitution makes the protection they afford very wide and although free propagation and interchange of views are ordinarily in social interest, circumstances may arise when social interest in public order is greater and the imposition of reasonable restrictions on the freedom of speech and expression and on the freedom of carrying on trade or business becomes imperative. Regard being had to the surrounding circumstances in which the impugned Act was passed, its object, the extent and urgency of the evil it sought to remedy, and the enormous power wielded by the Press, with modern facilities of quick circulation, and the consequence that any abuse of it might lead to, the restrictions imposed by the impugned Act must be held to be reasonable restrictions under the Articles. The State of Madras vs V. G. Row, ; , followed. 310 It was only in the fitness of things that the State Legislature should have left the wide preventive powers under the sections to the discretion of the State Government, charged with the maintenance of law and order, or to its delegate, to be exercised on their subjective satisfaction. To make the exercise of these powers justiciable and subject to judicial scrutiny would be to defeat the purpose of the enactment. Dr. N. B. Khare vs The State of Delhi, ; , referred to. But such discretion was by no means unfettered and uncontrolled. The two sections laid down the principle that the State Government or its delegate could exercise such powers only if they were satisfied that such exercise was necessary for the purpose mentioned in the sections and not otherwise. Where there was any abuse of such powers, therefore, what could be struck down was the abuse itself but not the statute. Dwaraka Prasad Laxmi Nayain vs The State of Uttar Pradesh, ; , held inapplicable. Harishankar Bagla vs The State of Madhya Pradesh, , relied on. In view of the amended provisions of article 19(2) of the Constitution and the language of the two sections limiting the exercise of the powers to the purposes specifically mentioned therein, the principles enunciated by this Court in Ramesh Thappay 's case and applied to Chintaman Rao 's case could have no application to the instant cases. Ramesh Thappay vs The State of Madras, ; and Chintaman Rao vs The State of Madhya Pradesh, (1950) S.C. R. 759, held inapplicable. The two provisos to section 2(1)(a) and cl. (b) of section 2(1) clearly show that the restrictions imposed by section 2 are reasonable restrictions on the exercise of the rights guaranteed by articles 19(1)(a) and 19(1)(g) and are, therefore, protected by articles 9(2) and 19(6) of the Constitution. There could be no basis for the grievance that the notifica tion under section 2(1)(a) prevented the publication even of matters against the 'Save Hindi agitation '. If there was a change in the policy of the papers, the time limit provided for the operation of the notifications and the right to make a representation provided ample remedies for the petitioner. To introduce into the notifications the suggested qualification would be to make the exercise of the powers conferred by the section dependent on an objective test subject to judicial scrutiny and defeat the very purpose of the section.

In these petitions in the nature of public interest litigation under Article 32 of the Constitution, the relief asked for is one for mandamus to the Union of India to fill the vacancies of Judges in the Supreme Court and the several High Courts of the country and ancillary orders or direc tions in regard to the relief of filling up of vacancies. In response to the rule, the Union of India, relying upon S.P. Gupta vs Union of India, [1982] 2 SCR 365, raised a preliminary objection as to the justiciability of the issue. The objection, however, was later withdrawn by the succeed ing Attorney General who made a statement that it was the constitutional obligation of the Union of India to provide the sanctioned Judge strength in the superior courts and default, if any, was a matter of public interest, and the writ petitions requiring a direction to the Union of India to fill up the vacancies were maintainable. Disposing of the petitions, this Court, HELD: (1) The ratio in S.P. Gupta 's case left the matter of fixing Up Of the Judge strength to the President of India under the constitutional scheme, and the choice of Judges to the prescribed procedure, but once the sanctioned strength was determined it was the obligation of the Union of India to maintain the sanctioned strength in the superior Courts. [437H; 438A] (2) It is too late in the day to dispute the position that justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice. The Judiciary therefore be comes the most prominent and outstanding wing of the Consti tutional System for fulfilling the mandate of the Constitu tion. 434 For its sound functioning, it is necessary that there must be an efficient judicial system and one of the factors for providing the requisite efficiency is ensuring adequate strength. [440E F] (3) For the availability of the appropriate atmosphere where a Judge would be free to act according to his con science it is necessary that he should not be over burdened with pressure of work which he finds it physically impossi ble to undertake. This necessarily suggests that the judge strength should be adequate to the current requirement and must remain under constant review in order that commensurate Judge strength may be provided. [441F G] Bradley vs Fisher, ; 1871, referred to. (4) It is a matter for immediate attention of all con cerned and of Government in particular that the Adminis tration of Justice is made a plan subject and given appro priate attention. [444C] (5) Backlog in Courts has become a national problem. The adjudicatory process is being blamed for not equalling itself to the challenge of the times. There is a general complaint that the judicial system is on the verge of col lapse. It is, therefore, the obligation of the constitution al process to keep the system appropriately manned. There is no justification for the sluggish move in such an important matter. [447C D] (6) If in a given case the Chief Justice of the High Court has recommended and the name has been considered by the Chief Minister and duly processed through the Governor so as to reach the hands of the Chief Justice of India through the Ministry of Justice and the Chief Justice of India as the highest judicial authority in the country, on due application of his mind, has given finality to the process at his level, there cannot ordinarily be any justi fication for reopening the matter merely because there has been a change in the personal of the Chief Justice or the Chief Minister of the State concerned. This has to be the rule and the policy adopted by the Union of India should immediately be given up. [448B D] (7) In the functioning of public offices there is and should be continuity of process and action and all objective decisions taken cannot be transformed into subjective issues. That being the position, recommendations finalised by the Chief Justice of India unless for any particular reason and unconnected with the mere change of the Chief 435 Justice or the Chief Minister justifying the same should not be reopened and if in a given case the Union of India is of the view that the matter requires to be looked into again a reference should be made to the Chief Justice of India and there can be a fresh look at the matter only if the Chief Justice of India permits such a review of the case. [448E F] (8) Consistent with the constitutional purpose and process it becomes imperative that the role of the institu tion of the Chief Justice of India be recognised as of crucial importance in the matter of appointments to the Supreme Court and the High Courts of the States. This aspect dealt with in Gupta 's case requires re consideration by a larger bench. [450E] (9) In India the judicial institutions, by tradition, have an avowed a political commitment and the assurance of a non political complexion of the judiciary cannot be divorced from the process of appointments. Constitutional phraseology of "consultation" has to be understood and expounded consistent with and to promote this constitutional spirit. These implications are, indeed, vital. The constitutional values cannot be whittled down by calling the appointment of Judges as an executive act. The appointment is rather the result of collective, constitutional process. It is a participatory constitutional function. It is, perhaps, inappropriate to refer to any `power ' or `right ' to appoint judge. It is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories. [457D F] (10) The executive, on whose advice the President acts, as a participant in the process has its own important and effective role. To say that the power to appoint solely vests with the executive and that the executive, after bestowing such consideration on the result of consultations with the judicial organ of the State, would be at liberty to take such decision as it may think fit in the matter of appointments, is an over simplification of a sensitive and subtle constitutional sentence subversive of the doctrine of judicial independence. [457F G] (11) The word "consultation" is used in the constitu tional provision in recognition of the status of the high constitutional dignitary who formally expresses the result of the institutional process leading to the appointment of judges. To limit that expression to its literal limitations, shorn of its constitutional background and purpose, is to borrow Justice Frankfurter 's phrase, "to stick in the bark of words". [458B] (12) Judicial Review is a part of the basic constitutional structure 436 and one of the basic features of the essential Indian Con stitutional policy. This essential constitutional doctrine does not by itself justify or necessitate any primacy to the executive wing on the ground of its political accountability to the electorate. [458C] (13) It might under certain circumstances be said that Government is not bound to appoint a judge so recommended by the judicial wing. But to contemplate a power for the execu tive to appoint a person despite his being disapproved or not recommended by the Chief Justice of the State and the Chief Justice of India would be wholly inappropriate and would constitute an arbitrary exercise of power. [458D E] (14) The purpose of the `consultation ' is to safeguard the independence of the judiciary and to ensure selection of proper persons. The matter is not, therefore, to be consid ered that the final say is the exclusive prerogative of the executive government. The recommendations of the appropriate constitutional functionaries from the judicial organ of the State has an equally important role. "Consultation" should have sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpretation. [458F G] (15) There are preponerant and compelling cousideratious why the views of the Chief Justices of the States and that of the Chief Justice of India should be afforded a decisive import unless the executive has some material in its posses sion which may indicate that the appointment is otherwise undesirable. [458G H] (16) The correctness of the opinion of the majority in S.P. Gupta 's case relating to the status and importance of consultation, the primacy of the position of the Chief Justice of India and the views that the fixation of Judge strength is not justiciable should be reconsidered by a larger bench. [459B] (17) In view of the fact that the bulk of vacancies in the High Courts have been filled up, and in view of the assurance held out by the learned Attorney General that prompt steps are being taken to fill up the remaining vacan cies, further monitoring for the time being is not neces sary. [459F]

The West Bengal Government issued an Order under Rule 125 of the Defence of India Rules, placing certain restrictions upon the right of persons carrying on business in milk products. The validity of this Order was challenged by a writ petition. After Rule had been issued on the petition and served on the State Government, the State Chief Minister broadcast a speech sreking to justify the propriety of the Order. The High Court issued a Rule requiring the Chief Minister to show cause why he should not be committed for contempt of Court. It was contended on behalf of the Chief Minister that he had come to learn of certain persons propagating the view that the Order would not only have the effect of reducing the supply of milk, but also of displacing numerous persons from work and causing unemployment; that attempts were made to commence a political agitation against the Order; and that with a view to agitation it was considered that the Chief Minister was under a duty to explain to the people the policy underlying, and the reasons for promulgating the Order. The High Court held that the speech amounted to contempt of Court; that it was contumacious in that it was likely to have a baneful effect upon the petitioners who had challenged the validity of the Order, and their cause and upon other persons having a similar cause; and that it was likely to interfere with the administration of justice. The High Court therefore expressed disapproval of the Chief Minister 's conduct. In appeal to this Court it was contended, inter alia, on behalf of the Chief Minister that the High Court erred in holding that the Chic/ Minister committed contempt of court because there was no finding that the contempt was intentionally committed; no real prejudice was caused either in the mind of the Judge or to the cause of the petitioners; that the speech contained no direct reference to any pending proceedings and that the Chief Miraster was under a duty to make the speech to instruct the public about the true state of affairs. HELD :The speech was ex facie calculated to interfere with the administration of justice. The High Court 's orders observing that the Chief Minister had acted improperly and expressing disapproval of his action was correct and did not call for any interference, by this Court. Gray, at p. 40 and Legal Remembrancer .v. Matilal Ghose and Others, I.L.R. ; referred to. The, question in all cases of comment on pending proceedings is not whether ' the publication does interfere, but whether it tends to interfere, with the due course of justice. The question is not so much of the in tention. of the contemner as whether it is calculated to interfere with the 650 administration of justice. If, therefore, the speech broadcast by the Chief Minister was calculated to interfere with the course of justice, it was liable to be declared a contempt of the Court even assuming that he had not intended thereby to interfere with the due course of justice. [654 B] Debi Prasad Sharma and Ors. vs The King Emperor, L.R. 70 I.A. 216 at p. 224; Saibal Kumar Gupta and Ors. B.K. Sen and Anr., ; ; and Arthur Reginald Perera vs The King, ; referred to. The Chief Minister in his speech characterised the preparation of food with milk in West Bengal as tantamount to a crime. He also announced his version about the validity of the order, the reasons why it was promulgated, and asserted that it was an order made bona fide and in the interest of the public so that those who resisted it were acting contrary to the public interest. These were the very questions that had to be determined by the Court. The statements in the Chief Minister 's broadcast were therefore prims facie calculated to obstruct the administration of justice, since they were likely to create an atmosphere of prejudice against the petitioners and also to deter other persons having similar claims from approaching the Court. It could not be held that when the trial of a case is held by a Judge without the aid of a jury, no contempt by interfering with the administration of justice may be committed. The foundation of the jurisdiction lies not merely in the effect which comments on a pending proceeding may have upon the mind of the jury, but the consequences which result from the conduct of the contemner, who by vilification or abuse of a party seeks to hold him up to public ridicule, obloquy, censure or contempt or by comment on his case seeks to prejudice the issue pending before the Court. [658 H; 659 A, B] The William Thomas Shipping Co., In re. H.W. Dhillan & Sons Ltd. vs The Company, In re, Sir Robert Thomas and Others, and Regina vs Duffey and others Ex Parte Nash, ; referred to.

Held, per MAHAJAN, MUKHERJEA, DAs and CHANDRASEKHARA AIYAR, JJ. (PATANJALI SASTRI C.J. dissenting). Section 12 of the Bombay Public Safety Measures Act, 1947, in so far, at any rate, as it authorises the Government to direct particular "cases" to be tried by a Special Judge appointed under the Act does not purport to proceed on any classifica tion and therefore contravenes article 14 of the Constitution and is void under article 13 on the principles laid down in the cases of State of West Bengal vs Anwar Ali Sarkar ([1952] S.C.R. 284) and Kathi Raning Rawat vs Tht State of Saurash tra ([1952] S.C.R. 435). The appellants who were accused of having committed murder and other serious offences were directed by the Government of Bombay by an order made on the 6th August, 1949, to be tried under the Bombay Public Safety Measures Act by a Special Judge appointed under the Act, charges were framed against them on the 13th January, 1950, and they were convicted in March, 1950. On appeal it was contended before the High Court that the trial and conviction were illegal as the Bombay Public Safety Measures Act was void under article 13 read with article 14of the Constitution which came into force on the 26th January, 1950, but the High Court held that as the proceedings against the accused had commenced before the Constitution, the provisions of articles 13 and 14 did not apply and the conviction was not illegal. Held,by a majority, that although substantive rights and liabilities acquired or accrued before the date of the Constitution remain enforceable, it cannot be held that after that date, those rights or liabilities must be en forced under the particular procedure that was in force before that date, although it has since that date been repealed or come into conflict with the fundamental right to equal protection of the laws guaranteed by the 711 Constitution, as there is no vested right in procedure. The fact of reference of "cases" to the Special Judge before the Constitution came into force has no reasonable relation to the objects sought to be achieved by the Act, the discrimi nation therefore continued after the Constitution came into force and such continuation of the application of the dis criminatory procedure to the cases of the appellants after the date of the Constitution constituted a breach of the fundamental right guaranteed by article 14, and the appellants were therefore entitled to be tried under the ordinary procedure after the date of the Constitution. PATANJALI SASTRI C.J. (contra). Granting that section 12 of the Bombay Act must, in view of the decision in Anwar Ali Sarkar 's case, be held to be discriminatory and void in so far as it empowers the State Government to refer individual cases to a Special Judge for trial, the trial of the appel lants which had validly started before the Special Judge who had been empowered to try the case cannot be vitiated by the Constitution subsequently coming into force. The provisions of the Constitution relating to fundamental rights have no retrospective operation and do not affect a criminal prose cution commenced before the Constitution came into force. The jurisdiction of the Special Judges validly created and exercised before the Constitution and their competence to try the cases referred to them cannot be affected by the special procedure becoming discriminatory. The correct view is that article 14 does not affect pending trials even in matters of procedure. Moreover the appellants against whom proceedings had been commenced before the Special Judge, were not in the same situation as others and there was nothing discriminatory in a law which permits them to be tried under the special procedure which was applicable to them when the proceedings were started against them.

Dismissing the appeals and the Writ Petitions, the Court ^ HELD: (1). It is fundamental that the nation 's Constitution is not kept in constant uncertainty by judicial review every season because it paralyses, by perennial suspense, all legislative and administrative action on vital issues deterred by the brooding interest of forensic blow up. This, if permitted, may well be a kind of judicial destabilisation of State action too dangerous to be indulged in save where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake, or the basic direction of the nation itself is in peril of a shake up. The decision in Kesavananda Bharati 's case, therefore, upholding the vires of Article 31A in unequivocal terms binds the court on the simple score of stare decisis and the constitutional ground of Article 141. Further, fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority "merely because it was badly argued, inadequately considered and fallaciously reasoned". And none of these misfortunes can be imputed to Bharati 's case. [1164 C G, 1165 C D] (2). The sweep of Article 31A is wide and indubitably embraces legislation on land ceilings. Equitable distribution of lands, annihilation of monopoly of ownership by imposition of ceiling and regeneration of the rural economy by diverse planning and strategies are covered by the armour of Article 31A. Article 31A repulses, therefore, all invasions on ceiling legislation armed with Articles 14, 19 and 31. [1165 D E, 1166 D E] Ranjit Singh and ors. vs State of Punjab and Ors. ; , State of Kerala and Anr. vs The Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. etc. ; , reiterated. The decision in Maneka Gandhi 's case is no universal nostrum or cure all. Nor can it be applicable to the land reform law which is in another domain of constitutional jurisprudence and quite apart from personal liberty in Article 21. To contend that land reform law, if unreasonable violates Article 21 as expansively construed in Maneka Gandhi case is incorrect. [1168 E G] (4). Section 5(6) d the U.P. Imposition of Ceiling on Land Holdings Act, 1960 is fair, valid and not violative of Article 19(1)(f) of the Constitution. There is no blanket ban by it but only qualified invalidation of certain sinister assignments etc. There is nothing in this section which is morally wrong nor is such an embargo which comes into force only on a well recognised date not from an arbitrarily retrospective past constitutionally anathematic. Article 19(1)(f) is not absolute in operation and is subject, under Article 19(6), to 1160 reasonable restrictions such as the one contained in Section 5(6). Further it is perfectly open to the legislature as ancillary to its main policy to prevent activities which defeat the statutory purpose, to provide for invalidation of such action. When the alienations are invalidated because they are made after a statutory date fixed with a purpose, there is sense in this prohibition. Otherwise, all the lands would have been transferred and little would have been left by way of surplus. [1169 A B, D, F G, 1170 C, E F] (5). Articles 14 and 15 and the humane spirit of the Preamble rebel against the defacto denial of proprietory personhood or womanhood. But this legal sentiment and jural value must not run riot and destroy the provisions which do not discriminate between man and woman qua man and woman but merely organise a scheme where life realism is legislatively pragmatised. Such a scheme may marginally affect gender justice but does not abridge, wee bit, the rights of women. If land holding and ceiling thereon are organised with the paramount purpose of maximizing surpluses without maiming women 's ownership, any plea of sex discrimination as a means to sabotage what is socially desirable measure cannot be permitted. [1173 D F] From a reading of Section 3(7) read with Section S(3) it is clear that no woman 's property is taken away any more than a man 's property. Section 5(3) does not confer any property on an adult son nor withdraw any property from adult daughter. Legal injury can arise only if the daughter 's property is taken away while the son 's is retained or the daughter gets no share while the son gets one. The legislation has not done either. [1171 G, 1173 F, H, 1174 C D] (6). Section 3(17) of the Act is not discriminatory Land does not offend Articles 14 & 15 of the Constitution. True, Section 3(17) makes the husband a tenure holder even when the wife is the owner. This is a legislative device for simplifying dealings and cannot therefore be faulted. [1174 E, F G] (7). Neither ceiling proceedings abate nor taking surplus land from the tenure holder is barred under the provisions of Section 4 of the U.P. Consolidation of Holdings Act, 1953 read with Section 5(2) of the Ceiling Act. [1177 C] The whole scheme of consolidation of holdings is to restructure agrarian landscape of U.P. so as to promote better farming and economic holdings by 'eliminating fragmentation and organising consolidating. No one is deprived of his land. What happens is, his scattered bits are taken away and in lieu thereof a continuous conglomeration equal in value is allotted subject to minimal deduction for community use and better enjoyment. Whatever land belongs to the tenure holder at the time when consolidation proceedings are in an on going stage, may or may not belong to him after the consolidation proceedings are completed. Alternative allotments may be made and so the choice that he may make before the prescribed authority for the purpose of surrendering surplus lands and preserving 'permissible holding ' may have only tentative value. But this factor does not seriously prejudice the holder. While he chooses the best at the given time the Consolidation Officer will give him its equivalent when a new plot is given to him in tho place of the old. There is no diminution in the quantum of land and quality of land since the object of consolidation is not deprivation but mere substituting of scattered pieces with a consolidated plot. The tenure holder may well exercise his option before the prescribed officer and if, later, the Consolidation Officer takes away there lands, he will allot a real equivalent thereof to the tenure holder elsewhere. There is no reduction or damage or other prejudice by this process of statutory exchange. [1177 C G] 1161 When land is contributed for public purposes compensation is paid in that behalf, and in the event of illegal or unjust orders passed, appellate and revisory remedies are also provided. On such exchange or transfer taking place, pursuant to the finalisation of the consolidation scheme, the holding, upto the ceiling available to the tenure holder, will be converted into the new allotment under the consolidation scheme. Thus there is no basic injustice nor gross arbitrariness in the continuance of the land reforms proceedings even when consolidation proceedings are under way. [1178 B D] Agricultural & Industrial Syndicate Ltd. vs State of U.P. and Ors., [1974] 1 S.C.R. 253, distinguished. Khetarpal Singh vs State of U.P. (High Court) [1975] Recent Decisions p. 366, approved. There is no time wise arbitrariness vitiating the statute in that various provisions in the Act were brought into force on random dates without any rhyme or reason, thus violating, from the temporally angle, Article 14. It is true that neither the legislature nor the Government as its delegate can fix fanciful dates for effectuation of provisions affecting the rights of citizens. Even so, a larger latitude is allowed to the State to notify the date on which a particular provision may come into effect. Many imponderables may weigh with the State in choosing the date and when challenge is made years later, the factors which induced the choice of such dates may be buried under the debris of time. Parties cannot take advantage of this handicap and audaciously challenge every date of coming into force of every provision as capriciously picked out. [1179 B D]

The property of the respondent was acquired under the U. P. Land Acquisition (Rehabilitation of Refugees) Act, 1948. The respondent challenged the constitutionality of the Act by way of a writ petition and though the High Court dismissed the petition it held that the two provisos to s.11 of the Act were invalid as they offended section 299(2) of the Government of India Act. Subsequently the Constitution (Fourth Amendment) Act, 1955, included the U. P. Act in the Ninth Schedule as item NO. 15. The appellant contended that the inclusion of the Act in the Ninth Schedule protected it under article 31 B of the Constitution from any challenge under section 299(2) of the Government of India Act. Held, that the U. P. Act could not be assailed on the ground of unconstitutionality based on a contravention of section 299 of the Government of India Act. The provisions of the Act having been specifically saved by article 31 B read with the Ninth Schedule, the Act could not be deemed to be void or to ever have become void on the ground of its having contravened the provisions of the Government of India Act. Dhirubha Devisingh Gohil vs The State of Bombay, ; , relied on. Saghir Ahmad vs The State of U. P., ; , not applicable.

Against the judgment of the Single judge of the Punjab High Court dated January 5, 1953, in which he followed the decision of a Division Bench holding that section 7A of the Delhi and Ajmer Rent Control Act, 1947, was unconstitutional and void, the appellants preferred an appeal under the Letters Patent. Meanwhile the judgment or the Division Bench was brought up by way of appeal to the Supreme Court, and as the appeal was getting ready to be heard, the appellants made an application on January 5, 1959, for special leave to appeal to the Supreme Court against the judgment of the Single judge. No notice was given to the respondent to the application, and special leave was granted ex parte. The Letters Patents appeal was thereafter withdrawn by the appellants. When the appeal came on for hearing in due course, the respondent raised an objection to the hearing of the appeal on the grounds that the application for special leave was barred by limitation, that there were no sufficient reasons for condoning the long. delay of four years, and that the special leave granted ex parte should be revoked. 243 Held, that, in the peculiar circumstances of the case, leave should not be revoked. Expect in very rare cases, if not invariable, the Supreme Court should adopt as a settle rule that the delay in making an application for special leave should not condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave. Desirability of the Rules of the Supreme Court being amended suitably pointed out.

Appeal No. 12 of 1958. Appeal by special leave from the judgment and order dated April 6,1953, of the Madras High Court in Appeal against order No. 54 of 1949. section T. Desai and K. R. Choudhri, for the appellant. K. N. Rajagopala Sastri and T. V. B. Tatachari, for respondents Nos. I to 5. April 5. The Judgment of the Court was delivered by MUDHOLKAR, J. In this appeal by special leave from the decision of the High Court of Madras the appellant challenges the validity of an award made by an arbitrator appointed by the Court in a suit for partition and recovery of possession filed by the appellant of his half share in certain properties upon three grounds. The first ground is that the reference to arbitration was itself invalid because the Court failed to comply with the mandatory requirements of section 23, sub section (1) of the (10 of 1940) in the matter of specifying the time within which the award was to be made. The second ground is that the award was filed in Court by the arbitrator after the expiry of the time subsequently granted by the court for filing the award. The third ground is that the arbitrator erred in allotting to the appellant less than half the share in the properties in suit. In our opinion there is no substance in any of these grounds. It is undoubtedly true that sub section (1) of a. 23 requires that an order thereunder referring a dispute to an arbitrator must specify the time within which the award is to be made. What is imperative is the fixation of the time for making the award. But it does not follow that where the Court omits to specify the time in the order of reference but does so elsewhere in the proceedings, the reference is bad. In Raja Har Narain Singh vs Chaadhrain Bhagawant Kuar and another (1) which was a case under the Code of Civil (1) (1981) L.R. 18 I.A. 55. 786 Procedure, 1882, the Privy Council had to consider the provisions of section 508 which correspond to those of section 23(l) of the . While pointing out that the provisions of section 508 are mandatory and imperative they held that though the failure of the Court, to specify the time for making the award in the order of reference was not a strict compliance of the terms of the section still the fact that the Court fixed a date for hearing of the case "might be sufficient. " There also, as here, subsequent to the mak ing of the reference the Court repeatedly made orders enlarging the time and in those orders Axed the time within which the award was to be made. Thus the emphasis laid by the Privy Council was on the fixation of time in some manner and not on the necessity of expressly specifying the time in the order of reference itself. Here the B Form Diary of the court shows that the dispute was referred to arbitration on January 22, 1948. The entry in the diary of that date reads thus: "Subject matter of suit is referred to Arbitration on joint petition. Call on. 24 2 1948". The words "call on" must be interpreted to mean that the arbitrator was required to file his award by the date for which the suit stood adjourned, that is, February 24, 1948. In our opinion this entry should be read along with the order of reference. Reading them together it would follow that time was in fact fixed for filing the award by February 24, 1948. The mere omission to mention this date in the order of reference itself did not vitiate the reference. As regards the failure of the arbitrator to file the award within the time fixed the argument of learned counsel is that though on March 25, 1948, time was fixed for filing the award by June 23, 1948, the award was not actually filed till July 6, 1948. A reference to the B Form Diary discloses that on February 24, 1948, the case was adjourned to March 25, 1948. The Diary contains the remark "call on" and this remark precedes the mention of the adjourned date. The High Court has interpreted this to mean that the time was extended by the Court on February 24, 1948, to March 25, 1948. The entry dated March 25, 1948, contains the following: 787 "Further time wanted. File Award 23 6 1948". Three further entries are relevant and they are as follows: "23 6 1948 Call on . 28 6 1948 28 6 1948 Call on. 6 7 1948 6 7 1948 Award filed. Objections 13 7 1948". It is obvious from these entries that time was extended by the Court to file the award on three occasions. The award was actually ready on June 28, 1948, and was filed in Court on July 6, 1948. Learned counsel for the appellant faintly urged that on July 2, 1948, that is, before the award was actually filed, he had made an application to the Court for superseding the arbitration and that, therefore, the award could not be filed thereafter. A mere application of the kind could not affect the reference. Apart from that, the award had actually been made before that date and, there fore, the attempt to seek the supersession of the arbitration was, in any case, belated. As regards the last point the High Court has come to the conclusion that though the area of the land allotted to the appellant is less than half the total area of the land in suit there is nothing to indicate that the value of that land is less than half that of the entire land in suit. We agree that upon the material on record it would not be possible to say that the appellant has in fact received less than his due share of property. Apart from that, however, we may point out that under section 30 of the Act an award can be set aside only on the following three grounds: (a). that an arbitrator or umpire has misconducted himself or the proceedings; (b). that an award has been made after the Issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid in under section 35; (c). that an award has been improperly procured or is otherwise invalid. Plainly this objection would not fall either under el. (a) or under cl. (b) nor under the first part of cl. 788 The question is whether it could possibly fall within the second part of cl. (c), that is, whether the award is I otherwise invalid". In order to bring the objection within this clause learned counsel contended that the award was bad on its face. It is difficult for us to appreciate bow the award could be said to be bad on its face. When a dispute is referred to arbitration, the arbitrator has to decide it to the best of his judgment, of course acting honestly. Here, in his judgment the arbitrator has allotted to the appellant certain lands the total area of which is less than half that of the entire I and in suit. The appellant 's contention is that he is entitled to half the entire land. This contention was before the arbitrator. In spite of that he has made the award in the terms in which he has made it. There appears to be no suggestion that the arbitrator acted dishonestly. How can it then be said that this award is on its face bad? Agreeing with the High Court we dismiss this appeal with costs to the contesting respondent. Appeal dismissed.

The questions for determination in the appeal were whether the award in question was invalid, (1) by reason of the court failing to comply with the mandatory requirement of section 23(l) Of the , that the time within which the award is to be made, must be specified in the order, and (2) whether the arbitrator was in error in allotting to the appellant less than half share in the properties. Held, that under section 23(l) Of the , it is imperative that the time for making the award must be fixed; but that does not mean that where the court omits to specify the time in the order of reference and does so elsewhere in the proceedings, the reference is invalid. Consequently, in a case where the order sheet of the court read with the order of reference made it clear that the arbitrator was to file his award by the date to which the suit was adjourned, it could not be said that the section had not been complied with. Raja Har Narain Singh vs Chaudbrain Bhagwant Kuar (1891) L.R. 18 I.A. 55, referred to. Held, further, that the award could not be said to be bad on the face of it and "otherwise invalid" merely because the appellant had received less than his due share. The court cannot interfere with the findings of an arbitrator based on the best of his judgment unless it is shown that he has acted dishonestly.

The areas in question which were parts of two estates belonging to the appellants, called Gangole A and Gangole C, were situated in what was known as the Godavari Agency tract which was governed by the Scheduled Districts Act, 1874. By section 92 of the Government of India Act, 1935, no Act of the Provincial Legislature was applicable to certain areas in which the Godavari Agency was included, unless the Governor by public 536 notification so directed. The Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, was enacted in 1948, and on August 15, 1950, the Government of Madras issued a notification under section 1(4) Of the Act by which, among other estates, Gangole A and Gangole C in their entirety were purported to be taken over, specifying September 7, 195o, as the date on which the vesting was to take place. But as no action as contemplated by section 92 of the Government of India Act, 1935, had been taken to render the Madras Act of 1948 applicable to the Godavari Agency tract, only parts of the Gangole estates were within the operation of that Act, while there were portions of the estates which were outside its purview and operation. When this legal situation was noticed another notification was issued on September 5, 1950, by which the areas in question were excluded from the scope of the notification dated August 15, 1950. In exercise of the power under para 5(2) Of the Fifth Schedule to the Constitution, Madras Regulation IV of 1951 was passed on September 8, 1951 by which, inter alia, the Act Of 1948 was made applicable to the areas in which the two Gangole estates were situate with retrospective effect from April 19, 1949. On January 14, 1953, the Government of Madras issued a notification vesting those portions of the Gangole estates to which the Act Of 1948 was extended. The appellants challenged the legality of the notification on the ground that the various provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, showed that the Act contemplated the taking over of estates as a unit and not in parts, while what the Government had done in the present case was to deal with the two estates of Gangole A and Gangole C as if each one of them were really two estates, one that which lay in the Godavari Agency tract and the other outside that area, and had issued notifications in respect of these units separately. Held, that the first notification dated August 15, 1950, as modified by that dated September 5, 1950, was valid and effective in law to vest the portion of the estate to which it related in the State Government. Held further, that the notification dated January 14, 1953, was equally valid. The action taken by the Government in issuing the said notification was in conformity with the scheme of the Act of 1948 that the entirety of the estate should be taken over.

These appeals by special leave arose from applications made by the respondents, who were employed as timekeepers in the time office of the Central Railway Workshop and Factory, Parel, Bombay, claiming payment of overtime wages under the (4 of 1936). The case of the respondents was that they were workers within the meaning of section 2(1) of the (LXIII Of 1948) and as such were entitled to overtime wages under section 59 of the said Act. Alternatively, they urged that even if they were not workers within the meaning of section 2(1) of the said Act, they would nevertheless be entitled to overtime wages under the section 59 by reason Of section 70 of the Bombay Shops and Establishments Act, 1948 (Bom. 79 of 1948). The validity of the claim on both the grounds was disputed by the appellant. The Authority under the found that only four of the respondents, who were required to do the work of progress timekeepers, could claim the status of workers within the meaning Of section 2(1) Of the and the rest were merely employees of the workshop, but the Authority accepted the alternative case made by the respond ents and directed the appellant to file a statement showing the overtime wages due to each of the respondents and ordered it to pay the same. Held, that the Authority was right in the view that it took Of section 70 Of the Bombay Shops and Establishments Act, 1948, and its decision must be affirmed. On a proper construction Of section 70 Of the Act it is clear that the first part of the section excludes a factory and its employees from the operation of the Act; but the second part makes the relevant provisions of the applicable to them. The non obstante clause in the section shows that the employees in a factory, although they might not be workers within the meaning Of section 2(1) of the , are entitled to claim overtime wages as provided for by that Act. It is not correct to say that section 4 Of the Bombay Shops and Establishments Act, 1948, has the effect of excluding the operation Of section 70 Of the Act. Section 4 applies only to establishments and not to factories; but even if it applied, to factories 18 138 that cannot materially affect the application Of section 70 which is intended to operate not withstanding the other provisions of the Act. Consistently with its policy, the Act, which provides for overtime wages for employees in all establishments, provides for overtime wages for employees in factories as well by making the relevant provisions of the applicable to them.

A dispute over the completion of construction work under a contract led to the litigation between the appellant and the respondent company. However, during the pendency of the proceedings in the High Court, the parties agreed to settle the dispute through arbitration. The Arbitrators gave their award in favour of the respondent company on the ground that the appellant had committed breach of contract and was also guilty of wrongful revocation of the agreement. The award did not contain any reason as to why and how the Arbitrators had arrived at the sum awarded. The appellant filed objection to the respondent 's application for making the award Rule of the Court on the ground inter alia that (i) no reasons had been given for the award, (ii) the award being ambiguous showed non application of mind, and (iii) the amount of interest awarded was unjustified. The learned District Judge allowed the objection and set aside the award on the ground of ambiguity and non statement of reasons. The High Court, however, allowed the respondent 's appeal and also directed payment of interest for the period during which the arbitration proceedings were pending. Before this Court it was urged that, because the question whether on the ground of absence of reasons the award is bad per se is pending consideration by a Constitution Bench of this Court, the present case should await adjudication on this point by the Constitution Bench. Disposing of the appeal, it was, HELD: (1) One of the cardinal principles of the administration of justice is to ensure quick disposal of PG NO 441 PG NO 442 disputes in accordance with law, justice and equity. Justice between the parties in a particular case should not be in suspended animation. [445B C, G] (2) Interests of justice and administration of justice would not be served by keeping at bay final adjudication of the controversy in this case on the plea that the question whether an unreasoned award is bad or not, is pending adjudication by a larger Bench. [445E F] (3) It is not known whether the decision of this Court would have prospective application only in view of the long settled position of law on this aspect in this country or not. [445G] (4) The law as it stands today is clear that unless there is an error of law apparent on the face of the award, the award cannot be challenged merely on the ground of absence of reasons. This is settled law by a long series of decisions. [445E] (5) An award is not invalid merely because by a process of inference and argument it may be demonstrated that the arbitrator had committed some mistake in arriving at some conclusion. [446B] (6) It is not open to the Court to speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusions. [446C] Jivarajbhai Ujamshi Sheth vs Chintamanrao Balaji & Ors., ; , referred to. (7) It is an error of law apparent on the face of it and not a mistake of fact which could be the ground for challenging the award. [446F] Union of India vs Bungo Steel Furniture P. Ltd., ; and Allen Berry & Co. P. Ltd. vs Union of India, ; , referred to. In the present case the arbitrator gave no reasons for the award. There is no legal proposition which is the basis of the award, far less any legal proposition which is erroneous. And there is no allegation of any misconduct in the proceedings. [446E F] (9) The award of interest pendente lite in this case was in violation of the principles enunciated by this Court. [447B] PG NO 443 Executive Engineer (Irrigation) Balimela vs Abhaduta Jena, [1988] 1 SCC 418, followed. Food Corporation of India vs M/s. Surendra Devendra & Mohendra Transport Co., [1988] 1 SCC 57, explained.

The respondent field a suit against the appellant for recovery of possession of a building on the ground of wilful deflault in payment of rent which was Rs. 900 per ;month. The appellant denied the relationship of landlord and tenant, claiming himself as one of the "associates" or "co sharers" or "co owners" of the building. The Munsif decreed the suit; and the decree was affirmed in appeal by the first appellate court as also by the High Court. Hence the present appeal. During the pendency of the present appeal, cl. (ii) of section 30 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, which exempted from application of the Act premises the monthly rent in respect of which exceeded Rs. 400, and on the basis of which the suit giving rise to the present appeal emanated, was struck down in a judgment by this Court. ** The appellant contended that as a result of the declaration by this Court of the constitutional invalidity of clause (ii) of section 30, of the Act, 311 which excluded from the purview of the Act any building or part thereof let out on a monthly rent of Rs. 400, the decree of the civil court became null and void and of no effect. On behalf of the respondent it was submitted that the decree passed by the civil court was not a nullity for the Act did ;not bar the jurisdiction of the civil court but only prohibited execution of a decree of eviction otherwise than in accordance with the relevant statutory provision; and that such a decree was not void, but was merely under an eclipse, and would become executable as and when the bar is removed. Allowing the appeal, this Court, HELD; 1.1 Section 10 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 prohibits jurisdiction of the civil court in respect of eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of that section and sections 14 to 16. The sole circumstance and the condition precedent to the exercise of jurisdiction by a civil court as stated in second proviso to section 10(1) is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the Controller, on such denial or claim by the tenant, reaches a decision and duly records a finding that such denial or claim was bona fide and only when these conditions are satisfied jurisdiction of the civil court can be invoked to pass a decree for eviciton on any of the grounds mentioned in section 10 or sections 14 to 16. Except to this limited extend the jurisdiction of the civil court is completely barred and the same is vested in the tribunals set up under the Act. Any suit instituted by a landlord for eviction of a tenant from a building falling within the ambit of the Act,otherwise than as stipulated by the section is, therefor, incompetent for lack of jurisdiction of the court and any decree of the court in such a suit is null and void and of no effect. [317D E, G H; 318 D,G H] Sushil Kumar Mehta vs Gobind Ram Bohra, [1990] 1 SCC page 193, referred to. 1.2 The decision of the Controller is concerned solely with the bona fides, and not the correctness or validity, of the denial or claim, for these difficult questions of title are by the statute reserved for decision by the appropriate civil court which is the more competent forum in such matters. [318D E] Magiti Sasamal vs Pandab Bissoi,[1962] 3 SCR 673, referred to. 1.3 If the decision of the Controller is that tenant 's denial or 312 claim is not bona fide, the jurisdiction of the civil court cannot be invoked by the landlord and the Controller will then be the competent authority to order eviction, after affording the parties a reasonable opportunity of being heard, on any one of the grounds specified under the statute, including the ground that the tenant has, without bona fide denied landlord 's title or claimed right of permanent tenancy.[318E F] 1.4 Although the Act contains no express bar of jurisdiction of the civil court, its provisions explicitly show that, subject to the extraordinary powers of the High Court, and this Court, such jurisdiction is statute for eviction of tenants "in execution or otherwise". The provision of the Act are clear and complete in regard to the finality of the orders passed by the special tribunals set up under it, and their competence to administer the same remedy as the civil courts render in civil suits. Such tribunals having been so constituted as to act in conformity with the fundamental principles of judicial procedure, the clear and explicit intendment of the legislature is that all questions relating to the special rights and liabilities created by the statute should be decided by the tribunals constituted under it. [317A C] Dhulabhai &Ors. vs The State of Madhya Pradesh & Anr. , ; ; Secretary of State vs Mask & Co., [1939 40] IA 222 (PC, Raleigh Investment Co. Ltd. vs Governor General in Council, [1946] 47 IA 50 (PC and Barraclough vs Brown & Ors., , referred to. In the instant case, the procedure stipulated in the second proviso to section 10 had not been complied with. At the time of institution of the suite, the building in question did not come within the ambit of the Act, owing to the exclusionary provision contained in cl. (ii) of section 30, but after leave to appeal was granted, the applicability of the Act was extended to the building by reason of the decision of this Court, declaring the invalidity of cl. (ii) of section 30 on account of its inconsistency with Article 14 of the Constitution. Whatever be the consequences of that declaration whether it has rendered the statutory provision null and void and of no effect, or, merely inoperative, unenforceable and dormant to be revitalised on subsequent removal of the constitutional ban in either event, the civil court acting without the aid of the exclusionary provision in cl. (ii) of section 30, during the period of invalidity,had become coram non judice and its proceedings resulting in the decree a nullity. [319A D] 313 Ratan Arya & Ors. vs State of Tamil Nadu & Anr. , ; , referred to. Kiran Singh & Ors. vs Chaman Paswan & Ors., ; relied on. V.B. Patankar & Ors.v. C.G. Sastry, ; , held inapplicable. Behram Khurshed Pesikaka vs State of Bombay, ; Saghir Ahmad vs State of U.P. and Ors. ; ; Bhikaji Narain Dhakras & Ors. vs The State of M.P. The State of A.P. & Anr., ; , referred to.

These appeals by Special Leave and a petition for Special leave arose out of different judgments of the High Court. The main issue involved was whether the location of Revenue Mandal Headquarters in the State of Andhra Pradesh under section 3(5) of the Andhra Pradesh District (Formation) Act, 1974, was a purely governmental function, not amenable to the writ jurisdiction of the High Court. Writ Petitions were filed in the High Court by individuals and gram panchayats questioning the legality and propriety of the formation of certain Revenue Mandals and location of certain Mandal Headquarters notified in preliminary notification issued under sub section (5) of Section 3 of the Act. In some cases, the High Court declined to interfere with the location of Mandal Headquarters, holding that the government was the best judge of the situation, or on the ground that there was a breach of guidelines it directed the Government to reconsider the question of location of the Mandal Headquarters. In some cases, the High Court quashed the final notification for location of the Mandal Headquarters at a particular place, holding that there was a breach of guidelines based on the system of marking and also on the ground that there were no reasons disclosed for deviating from the preliminary notification for location of the Mandal Headquarters at another place. Allowing Civil Appeal Nos. 1980, 1982, 1985 and 1987 of 1986 and all other appeals and Special Leave Petitions directed against the judgments of the High Court, whereby the High Court had interfered with the location of the Mandal Headquarters, the Court, ^ HELD: It was difficult to sustain the interference by the High Court in some of cases with the location of the Mandal Headquarters and the quashing of the impugned notification on the ground that the Government had acted in breach of the guidelines in that one place or 695 the other was more centrally located or that location at the other place would promote general public convenience or that the Headquarters should be fixed at a particular place with a view to developing the areas surrounded by it or that merely because a particular person who was an influential Member of Legislative Assembly belonging to the party in opposition had the right of representation but failed to avail of it. The location of Headquarters by the Government by the issue of the final notification under sub s (5) of section 3 of the Act was on a consideration by the Cabinet Sub Committee of the proposals submitted by the Collectors concerned and the objections and suggestions received from the local authorities like Gram Panchayats and the general public, keeping in view the relevant factors. Even assuming that any breach of the guidelines for the location of the Mandal Headquarters was justiciable, the utmost that the High Court could have done was to quash the impugned notification in a particular case and direct the Government to reconsider the question. There was no warrant for the High Court to have gone further and direct the shifting of the Mandal Headquarters at a particular place. [711B E] The guidelines are merely in the nature of instructions issued by the State Government to the Collectors regulating the manner in which they should formulate their proposals for formation of a Revenue Mandal or for the location of its Headquarters keeping in view the broad guidelines laid down in Appendix I to the White Paper issued by the Government laying down the broad guidelines. The guidelines had no statutory force and they had also not been published in the Official Gazette. They were mere departmental instructions for the Collectors. The ultimate decision as to the formation of a Revenue Mandal or location of its Headquarters was with the Government. It was for that reason that the Government issued preliminary notification under sub s (5) of section 3 of the Act. Deviation from the guidelines in some of the aspects was usually for reasons of administrative convenience keeping in view the purpose and object of the Act i.e. to bring the administration nearer to the people. There was nothing on record to show that the decision of the Government in any of these cases was arbitrary or capricious or was one not reached in good faith or actuated with improper considerations or influenced by extraneous considerations. In a matter like this, conferment of discretion upon the Government in the matter of formation of a Revenue Mandal or location of its Headquarters in the nature of things necessarily leaves the Government with a choice in the use of the directions conferred upon it. [713A F] It was difficult to sustain the judgments of the High Court in the 696 cases where it had interfered with the location of Mandal Headquarters and quashed the impugned notifications on the ground that the Government had acted in breach of the guidelines in that one place or the other was more centrally located or that location at the other place would promote general public convenience or that the Headquarters should be fixed at a particular place with a view to developing the area surrounded by it. The location of Headquarters by the Government by the issue of the final notification under sub section (5) of Section 3 of the Act was on a consideration by the Cabinet Sub Committee of the proposals submitted by the Collectors concerned and the objections and suggestions received from the local authorities like the gram panchayats and the general public. Even assuming that the Government while accepting the recommendations of the Cabinet Sub Committee directed that the Mandal Headquarters should be at one place rather than at another place as recommended by the Collector concerned in a particular case, the High Court would not have issued a writ in the nature of mandamus to enforce the guidelines which were nothing more than administrative instructions not having any statutory force, which did not give rise to any legal right in favour of the writ petitioners. The petitions filed under Article 226 of the Constitutions before the High Court were dismissed. [723G H; 724A D] Gram Panchayat, Chinna Madur & Orr. vs The Government of Andhra Pradesh, [1986] 1 Andhra Weekly Reporter 362; C.J. Fernandez vs State of Mysore & Ors., ; ; Padfield vs Minister of Agriculture Fisheries & Food, ; ; Laker Airways Ltd. vs Department of Trade, at 705; Council of Civil Service Unions and Others vs Minister for the Civil Service, ; ; Secretary of State for Education and Science vs Tameside M.B.C.; , ; Breen vs Amalgamated Engineering Union, at 190; R.V. Criminal Injuries Compensation Board, explain, and Ridge vs Baldwin, ; , referred to.

A badli workman worked as the appellant 's employee for more than 240 days, with interruptions in each of the calendar years 1959 and 1960. He was retrenched in 1961. An industrial dispute having arisen, it was referred to the Tribunal, which held, that the appellant was not justified in terminating the services of the workman as the provisions of section 25F of the were not com plied with. In its appeal to this Court, the appellant contended that the section could apply only if the workman had put in 240 days ' continuous service in any of the years 1959 and 1960. HELD: Section 25B says that, for the purpose of section 25F a workman who, in a period of 12 calendar months has actually worked for not less than 240 days shall be deemed to have completed one year of continuous service. Service for 240 days in a period of 12 calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted. Therefore, though section 25F speaks of continuous service for not less than one year under the employer, both the conditions are fulfilled if the workman has actually worked for 240 days during a period of 12 calendar months. It is not necessary to read the definition of continuous service in section 2(fee) into section 25B, because, the fiction converts service of 240 days in a period of the twelve calendar months into continuous service for one complete year. [451C E] The amendments introduced by the Industrial Disputes (Amend ment) Act, 1964 into sections 25B and 25F only removed the discordance between the unmended sections 25B and 25F (b) and vagueness which existed previously. But neither before the amendments nor after, is uninterrupted service necessary, if the total service is 240 days in a period of 12 calendar months. [452D E]

The Chief Commissioner, Delhi, referred an industrial dispute for adjudication to the Industrial Tribunal, Delhi, which gave its award on March 16, 1959. Both the appellant and the respondents were dissatisfied with the award and they came to this Court by special leave. The award was challenged by the appellant with regard to scales of pay, dearness allowance, adjustments, leave rules, gratuity and retrospective effect of the award. The respondents attacked the award as regards the working hours, leave rules and retirement age. Held, that while social justice demands that workmen should get a fair share of the national income which they help to produce, it has also to be seen that that does not result in the drying up of the source of national income itself. Inroads 235 on the profits of the capitalists should not be such as have a tendency to drive capital away from fruitful employment and thereby affect prejudicially capital formation itself The Tribunal had applied the correct principles and the award should not be disturbed, Held, also, that the Tribunal had erred in awarding a fixed dearness allowance of Rs. 25 / . The object of dearness allowance being to neutralise part of the rise or fall in the cost of living, it should ordinarily be on a sliding scale. Held, that the contention of the appellant that in view of the provisions of the , no provision need be made about sickness leave at all, was rejected. It was pointed out that in providing for periodical payments to an insured worker in case of sickness or for medical treatment or attendance to him or the members of his family under the Act of 1948, the Legislature did not intend to substitute any of these benefits for the workmen 's right to get leave on full 'Pay on the ground of sickness. Held, that as regards those workmen to whom the Delhi Shops and Establishments Act, 1954, applied,. the Tribunal had acted illegally in fixing the period of sick leave at 15 days and permitting accumulation. The appellant shall allow to the workmen to whom the Delhi Shops and Establishments Act applied, sickness or casual leave for a total period of 12 days with full pay and allowances, and such leave shall not accumulate. As it was not desirable to have two separate leave rules for two classes of workmen, one to whom the Act of 1954 applied and tile other to whom the Act did not apply, it was held that the same rule should apply to other workers also. Held, also, that tile scheme of gratuity as framed by the tribunal was not unduly favourable to workmen and it also did not place any undue strain on the financial resources of tile Company. As regards the provision in the gratuity scheme that an employee who is dismissed for misconduct shall not be entitled to any gratuity; it was held that the proper provision should be that where an employee is dismissed for misconduct which has resulted in financial loss to the employer, the amount of loss should be deducted from the amount of gratuity due. The award of the Tribunal on tile question of retirement age was set aside and the retirement age was fixed at 58, subject to the proviso that it would be open to the company to continue in its employment a workmen who had passed that age, The rule was to apply to all tile employees of the Company. 236 No general formula could be laid down as to the date from which a Tribunal should make its award effective. That question has to be decided by the Tribunal on consideration of the circumstances of each case. There was no justification for interfering with the direction of the Tribunal that in this case the reliefs given by it should become effective from the date of the reference. Standard Vacuum Refining Co., of India vs Its workmen, , M/s. Crown Aluminium Works vs Its workmen; , , Express Newspapers Ltd. vs Union of India, , M/S. Lipton Ltd. vs Their Workmen [1959] Supp. 2 section C. R. 150, Workmen Hindustan Motors vs Hidustan Motors, 52, French Motor Car Co. vs Their Workmen, and Guest Keen, Williams (P) Ltd. vs P. J. Sterling [1961] 1 section C. R. 348, referred to.

il Appeals Nos. 273 to 277 of 1960. Appeals by special leave granted by the Supreme Court by its order dated December 15, 1958, from the judgment and order dated February 4, 1957, of the High Court of Orissa in O. J. C. Nos. 184 to 188 of 1955. H. N. Sanyal, Additional Solicitor General of India and B. P. Maheshwari, for appellants (In C. As. Nos. 273 and 274 of 1960) and respondents (In C. As. 275 277 of 1960). C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and T. M. Sen, for respondents (In ( 'J. As. Nos. 273 and 274 of 1960) and appellants (In C. As. 275 277 of 1960). March 24. The Judgment of the Court was delivered by SHAH, J. The Orient Paper Mills Ltd., thereinafter called the assessees are a public limited company having their registered office at Brajrajnagar in the 551 district of Sambalpur, Orissa State. The assessees are manufacturers of paper and paper boards and are registered as dealers under the Orissa Sales Tax Act, 1947 hereinafter referred to as the Act. The assessees used to collect tax from the purchasers on all sales effected by them including sales to dealers in other States. For the quarters ending March 31, 1950, June 30, 1950, September 30, 1950, December 31, 1950 and March 31, 195 1, the assessees paid Sales tax which they were assessed by the Assistant Collector of Sales tax to pay, on their turnover which included sales outside the State of Orissa. After this court delivered the judgment in The State of Bombay and Another vs The United Motors (India) Ltd. and Others (1) the assessees applied for refund under section 14 of the Act of tax paid in respect of goods despatched for consumption outside the State of Orissa contending that according to the law expounded by this court, the transactions of sales outside the State were not taxable under the Act because of the prohibition imposed by article 286(1) (a) of the Constitution read with the Explanation. Refund was refused by the Assistant Sales Tax Officer and the order was confirmed by the Board of Revenue. In the view of the taxing authorities, the orders of assessment in respect of the five periods had become final on the diverse dates on which they were made and were not liable to be reopened merely because the law applicable to the transactions was not correctly appreciated by the taxing authorities. In petitions moved by the assessees for writs of certiorari and mandamus against the orders of the Board of Revenue, the High Court of Orissa held that the only restriction upon the right of a dealer to apply for refund which "is found within the four corners of section 14 of the Act" being the law of limitation prescribed by the proviso to than section, transactions in question not being liable to tax as they were interstate transactions, the tax collected must be refunded on applications submitted within the period prescribed. The High Court then proceeded to hold that the recovery of tax paid for the first two (1) ; 552 quarters was barred by limitation but not recovery of tax paid for the remaining three quarters, and issued id. an order in the nature of mandamus directing refund of tax in respect of the last three quarters. The State of Orissa and the assessees have appealed with special leave against the judgment of the High Court by these five appeals. Counsel for the State of Orissa contends that no refund could be granted because the orders of assessment had become final and section 14 of the Act applied only to cases of refund in which a superior taxing authority in appeal or revision against the order of assessment directs or declares that the tax has not been properly collected, and it does not apply to cases of assessment which have become final, even if made on an erroneous view of the law. The assessees support the view of the High Court that section 14 applies to all claims for refund and also contend that the recovery of tax paid for the first two quarters was not barred by the law of limitation. It is unnecessary for the purposes of these appeals to consider the respective contentions of the parties. In our view the claim of the assesses must fail because of the retrospective amendment of the Act by the Orissa Legislature. By section 14A which was incorporated by the Orissa Sales Tax (Amendment) Act, 28 of 1958, it was provided: "Notwithstanding anything contained in this Act where any amount is either deposited by any person under sub section (3) of section 9B or paid as tax by a dealer and where such amount or any part thereof is not payable by such person or dealer, a refund of such amount or any part thereof can be claimed only by the person from whom such person or dealer has actually realised such amounts whether by way of sales tax or otherwise and the period of limitation provided in the proviso to section 14 shall apply to the aforesaid claims. " In terms, the section provides that refund of tax "id which the dealer was not liable to pay can ' only be claimed by the person from whom the dealer has actually realised it whether as sales tax or otherwise. 553 The section therefore deprives the assessees of the common law right to claim refund of the amounts paid as tax under an error of law that it was recoverable by the taxing authority. Counsel for the assessees does not dispute that by the amending provision, the right to obtain refund of tax is denied to him by the Legislature. He contends that the Act is beyond the competence of the State Legislature, and in any event, it is void because it imposes an unreasonable restriction upon the assessees ' fundamental right guaranteed under article 19(1)(f) of the Constitution. By item 54 of List II of Schedule 7 to the Constitution, the State Legislature was indisputably competent to legislate with respect to taxes on sale or purchase of papers and paper boards. The power to legislate with respect to a tax comprehends the power to impose the tax, to prescribe machinery for collecting the tax, to designate the officers by whom the liability may be enforced and to prescribe the authority, obligations and indemnity of those officers. The diverse heads of legislation in the Schedule to the Constitution demarcate the periphery of legislative ' competence and include all matters which are ancillary or subsidiary to the primary head. The Legislature of the Orissa State was therefore competent to exercise power in respect of the subsidiary or ancillary matter of granting refund of tax improperly or illegally collected, and the competence of the Legislature in this behalf is not canvassed by counsel for the assessees. If competence to legislate for granting refund of sales tax improperly collected be granted, is there any reason to exclude the power to declare that refund shall be claimable only by the person from whom the dealer has actually realised the amounts by way of sales tax or otherwise We see none. The question is one of legislative competence and there is no restriction either express or implied imposed upon the power of the Legislature in that behalf. article 19(1)(f) of the Constitution prescribes the right to freedom of citizens to acquire, hold and dispose of property; but the right is by cl. (5) subject to tile 70 554 operation of any law, existing or prospective, in so far as it imposes reasonable restrictions on the exercise of that right in the interest of the general public. Assuming that by enacting that refund of tax shall only be made to the purchasers from whom the tax has been collected by the dealers and not to the dealers who have paid the tax the fundamental right under article 19(1)(f) is restricted, we are unable to hold that the restriction imposed by section 14A of the Act is not in the interest of the general public. The Legislature by section 9B(1) of the Act authorised registered dealers to collect tax from the purchasers which they may have to pay on their turnover. The amounts collected by the assessees therefore primarily belonged not to the assesssees but to the purchasers. On an erroneous assumption that tax was payable, tax was collected by the assessees and was paid over to the State. Under section 9B, cl. (3) of the Act as it stood at the material time, the amounts realised by any person as tax on sale of any goods shall, notwithstanding anything contained in any other provision of the Act, be deposited by him in a Government treasury within such period as may be prescribed if the amount so realised exceeded the amount payable as tax in respect of that sale or if no tax is payable in respect thereof. As the tax collected by the assessees was not exigible in respect of the sales from the purchasers, a statutory obligation arose to deposit it with the State and by paying that tax under the assessment, the assessees must be deemed to have complied with this requirement. But the amount of tax remained under section 9B of the Act with the Government of Orissa as a deposit. If with a view to prevent the assessees who had no beneficial interest in those amounts from making a profit out of the tax collected, the Legislature enacted that the amount so deposited shall be claimable only by the persons who had paid the amounts to the dealer and not by the dealer, it must be held that the restriction on the right of the assessees to obtain refund was lawfully circumscribed in the interest of the general public. Counsel for the assessees contended that they stood 555 in danger of being compelled at the instance of the purchasers to repay the amount collected as tax even after it is deposited with or paid by them to the State, Government, and a statutory provision which deprives them of their right to claim refund amounts to an unreasonable restriction, because they are under an obligation to pay the amount to purchasers but they cannot reimburse themselves by recourse to the State which holds the amounts. But by section 9B, the assessees were liable to deposit the amount in excess of what was lawfully recoverable from the purchasers as tax ' When under the orders of assessment they paid amounts to the State, requirements of section 9B were complied with and the amount remained with the State in deposit, subject to the obligation, if a demand was made within the period prescribed, to restore the same to the persons from whom the assessees had recovered it. We do not think that there is any reason to hold that the assessees would be exposed to any enforceable claims at the instance of the purchasers to refund the tax collected by them if they have deposited it with the State in discharge of the statutory obligation incurred by them. Appeals Nos. 273 and 274 of 1960 will therefore be dismissed and Appeals Nos. 275 to 277 of 1960 will be allowed. As the State succeeds relying upon a statute enacted after the judgment was pronounced by the High Court, we direct that there shall be no order as to costs of the appeals in this court. Appeals Nos. 273 and 274 of 1960 dismissed. Appeals Nos. 275 to 277 of 1960 allowed.

The appellants who were registered as dealers under the Orissa Sales Tax Act, 1947, used to collect sales tax from the purchasers on all sales effected by them including sales to dealers in other states. They were assessed to and paid tax on their turnover which included sales outside the State of Orissa, but after the decision of this Court in State of Bombay vs The 'United Motors (India) Ltd.; , , they applied under section 14 of the Act for refund of tax paid on the ground that sales outside the State were not taxable under cl. (1)(a) of article 286 of the Constitution read with the Explanation. Refund was refused by the Sales Tax Authorities and the Board of Revenue. In petitions moved by the appellants for writs of certiorari and Mandamus against the orders of the Board of ,Revenue the High Court ordered refund of tax paid for certain periods and refused it in regard to other periods. The Orissa Sales Tax Act was, however, amended in 1958 with retrospective effect incorporating section 14 A which provided that refund could be claimed only by the person from whom the dealer had realised the amount by way of sales tax or otherwise. 550 Held, that under section 14 A of the Orissa Sales Tax (Amendment) Act, 1958, refund of tax which the dealer was not liable to pay could 'be claimed by the person from whom the dealer had actually realised it whether as sales tax or otherwise, and not by the dealer. The legislature was competent to legislate for granting )IS refund of sales tax improperly collected; there, is no reason to exclude the power to declare that refund shall be claimable only by the person from whom the dealer has realised the amount as sales tax or otherwise. Under section 9B, cl. 3 of the Act, if the amount realised by the assessee exceeded the amount payable as tax such amount must be deposited in the Government treasury, and the assessee having no beneficial interest in such amount the enactment that the amount shall be claimable only by the persons who paid the amounts to the dealers as sales tax is a reasonable restriction imposed on the right of the assessee to obtain refund in the interest of the general public, and does not infringe the provisions of article 19(1)(f) of the Constitution. If the assessees discharge their statutory obligation to deposit the amount collected by them as sale tax in the Government treasury they cannot be exposed to any claim for refund by the persons from whom the tax is collected, even though such persons were in the first instance not liable to pay the tax.

In this appeal by special leave brought by the auction purchaser against the Judgment of the Madras High Court the sole question for consideration is as regards the period of limitation for making a deposit to make an application under Rule 89 of Order XXI of the Civil Procedure Code, 1908 to set aside the sale of immovable property sold in execution of a decree. Whether the deposit is to be made within 30 days from the date of the sale as required by sub rule (2) of Rule 92 of Order XXI or within 60 days from the date of sale as provided in Article 127 of the ? Following its earlier decision in Thangammal & Ors. vs V.K. Dhanalakshmi & Anr. and the decision of this Court in Basavantappa vs Gangadhar Narayan Dharwadkar & Anr., the High Court had held that Article 127 governed the period of limitation to make a deposit in terms of Rule 89. Setting aside the judgment of the High Court on the question of limitation, this Court in allowing the appeal, HELD: The correct construction of Rule 92(2) of Order XXI of the Civil Procedure Code, 1908 leads to the irresist ible conclusion that the time for making a deposit in terms of Rule 89 of Order XXI is 30 days, and Article 127 of the prescribing the period for making an application under Rule 89 has no relevance to the prescribed time for making the deposit. Neither provision has any effect on the other as to time. [489G H; 490A] Basavantappa vs Gandadhar Narayan Dharwadkar & Anr., ; , over ruled. Nalinakaya Bysack vs Shyam Sunder Haldar & Ors. , ; at 545; Mersey Docks vs Henderson, [1988] 13 App. 595,602; 484 SUPREME COURT REPORTS [1990] 1 S.C.R. Crawford vs Spooner, [1846] 6 Morre P.C. 1, 8, 9; Seaford Court Estates vs Asher, All E.R., [1949] 2.155 at 164 M. Pentiah & Ors. vs Muddala Veeramallappa & Ors., ; at 314 Heydon 's case ; 76 ER 637; Dakshayini & Ors. vs Madhavan, AIR 1982 Kerala 126, referred to.

As a result of a notification dated December 30, 1967 under section 59(1) of the Madras General Sales Tax Act and later by Act 2 of 1968 sales of jaggery became liable to tax. But while by notification under section 17 'palm jaggery was exempted from tax 'cane jaggery ' was not. The appellants who were dealers in 'cane jaggery ' challenged the levy by writ petitions in the High Court which were, however, dismissed. In appeal before this Court it was contended (i) that the tax on 'cane jaggery ' while exempting 'palm jaggery ' was ,discriminatory and violative of article 14 of the Constitution; (ii) that taxation of 'cane jaggery ' was restrictive of trade and commerce and therefore violative of article 301; (iii) that the impugned legislation constituted a colourable exercise of power. HELD: (i) The evidence on record clearly showed that 'cane jaggery ' and 'palm jaggery ' were commercially different commodities. The methods of production of 'palm jaggery ' and 'cane jaggery ' were different; they reached the consumers through different channels of distribution; the prices at which they were sold differed and they were consumed by different sections of the community. 'Cane jaggery ' and 'palm jaggery ' did not thus belong to the same class and in differently treating them for the purpose of taxation there was no unlawful discrimination. [620 B E; 621 C D] It was incorrect to say that the State Legislature had always treated the two products on the same footing. For nearly three years before April 1, 1958 sales of 'palm jaggery ' were exempt from tax but sales of 'cane jaggery ' were not. [620 B] Further, it is for the legislature to determine the objects on which tax shall be levied. The courts will not strike down an Act as denying equal protection merely because other objects could have been but are not taxed by the legislature. [621 B C] N. Venugopala Ravi Varma Rajah vs Union of India, ; , applied. (ii) Freedom of trade, commerce and intercourse guaranteed by article 301 of the Constitution is protected against taxing statutes as well as other statutes, but by imposition of tax on transactions of sale of 'cane jaggery ' no restriction on the freedom of trade or commerce or in the course of trade with or within the State. was imposed. [621 D F] State of Madras vs N. K. Nataraja Mudaliar. ; , referred to. (iii) The plea of colourable exercise of power had no substance because the legislature had power in the present case to. levy the tax.[621 G] 4 Sup. C.I./69 616 K.C. Gajapati Narayan Deo & Ors. vs State of Orissa, [1954] S.C.R.1, applied.

Allowing the appeal by special leave and answering against the assessee, the Court. ^ HELD: Per Bhagwati,J. (Concurring with Sen and Venkataramiah, JJ.) (1) The expression "Registered dealer" is used in section 8 (ii) in its definitional sense to mean a dealer registered under section 22 of the Bombay Sales Tax Act and it does not include a dealer under the Central Sales Tax Act. [875A] (2) The object of section 8 is to prevent a multiple point taxation on goods specified in Schedule C and for imposition of single point tax on them under the Act. If a dealer is registered only under the Central Act and not under the Bombay Act, it would mean that he is not liable to pay tax under the Bombay Act and in that event, even if he has sold goods specified in Schedule 'C ', to a registered dealer under an intra State sale, no tax would be payable by him on such sale and if the purchasing dealer is also to be exempt from tax in respect of re sale effected by him, the result would be that the goods would escape tax altogether and not suffer even single point tax. That is not the intendment of the legislature in enacting section 8(ii); on the contrary it would frustrate the very object of that section. The situation would be the same even where the sale effected by the dealer registered under the Central Act is an inter State sale. That sale would undoubtedly be taxable under the Central Act but there is no reason why the Gujarat State would give exemption to re sale of goods in respect of which, at the time of the first sale tax has been levied under the Central Act of which the benefit has gone to another State. Moreover, in such a case, the first sale being an inter State sale, would be taxable at a fixed concessional rate under section 8(1)(a) or at the rate of 7% or at a rate equal to or twice the rate applicable to the sale of such goods in the State of the selling dealer, under clause (a) or (b) of sub section (2) of section 8 of the Central Act and if that be so, it is difficult to understand why the Legislature should have insisted, for attracting the applicability of section 8(ii), that the goods re sold by the dealer should at the time of their first sale be goods specified in Schedule 'C '. [873F G, 874C G] 871 (3) Sections 4 and 8(ii) of the Bombay Act are distinct and independent provisions operating on totally different areas. The legal fiction in sub section (1) of section (4) is created for a specific purpose and it is limited by the terms of sub section (2) of section 4 and it cannot be projected in section 8(ii). If a dealer is not registered under the Bombay Act, it could only be on the basis that he is not liable to pay tax under the Bombay Act, but even so, section 4 sub section (1) provides that if he is registered under the Central Act, he would be liable to pay tax under the Bombay Act in respect of the transactions of sale set out in that section. This liability arises despite the fact that the dealer, not being liable to pay tax under section 3 of the Bombay Act, is not registered under that Act. The dealer not being registered under the Bombay Act, the machinery of the Bombay Act would not of itself apply for the recovery of tax from him. Section 4 sub section 2, therefore, enacts that every dealer who is liable to pay tax under sub section (1) shall, for the purpose of sections 32 to 38 and 46 to 48 be deemed to be a registered dealer. Sections 32 to 38 and 46 to 48 are machinery sections and it is for the purpose of making the machinery of these sections applicable for recovery of the tax imposed on the dealer under sub section (1) of section 4 that an artificial fiction is created deeming the dealer to be a registered dealer, that is, a dealer registered under section 22 of the Bombay Act. Per Sen, J. (On behalf of himself and Venkataramiah, J.). (1) It is a well settled principle that when a word or phrase has been defined in the interpretation clause, prima facie that definition governs whenever that word or phrase is used in the body of the statute. But where the context makes the definition clause inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause, are, therefore, normally, enacted subject to the usual qualification "unless there is anything repugnant in the subject or context", or "unless the context otherwise requires". Even in the absence of an express qualification to that effect such a qualification is always implied. The expression "registered dealer" having been defined in section 2(25) of the Bombay Act as having a particular meaning, that is, a dealer registered under section 22 of the Act, it is that meaning alone which must be given to it in interpreting clause (ii) of section 8 of the Bombay Act unless there is anything repugnant to the context [880B D] There being no obscurity in the language of clause (ii) of section 8 of the Bombay Act, it is clear that no deduction is claimable in respect of re sales of goods purchased from a dealer registered under the Central Act, who is not a registered dealer within the meaning of section 2(25) of the Act. It follows that the expression "registered dealer" in clause (ii) of section 8 of the Act must bear the meaning of that expression as given in section 2(25) of the Act. If the meaning of the section is plain it is to be applied whatever the result, [879H 880A] (2) The meaning of a word or expression defined may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in definition section, namely, "unless the context otherwise requires". In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words in a particular section. But where there is no obscurity in the language of the section, 872 there is no scope for the application of the rule ex visceribus actus. This rule is never allowed to alter the meaning of what is of itself clear and explicit. [881E G] Bywater vs Brandling, ; Rein vs Lane, and Jobbins vs Middlesex County Council, Craies, , held inapplicable. (3) The provisions of section 4, sub section (3) of section 7 and clause (ii) of section 8 of the Bombay Act operate in three different fields. While section 4 of the Act provides that a registered dealer under the Central Act who may not be liable to pay tax under section 3 of the Act may nevertheless in certain contingencies be liable to pay tax, sub section (3) of section 7 provides for the levy of a single point tax on sale in the course of inter State trade and commerce of declared goods, to bring the Act in conformity with clause (a) of section 15 of the Central Act. The object and purpose of enacting the provisions of section 8 are entirely different, namely, to lay down the mode of computation of the turnover of sales or purchases of a registered dealer for the imposition of a tax. Clause (ii) of section 8 allows for deduction of re sale from the turnover of such registered dealer when the goods are purchased from a registered dealer, that is, a dealer registered under section 22 of the Act. In effect, section 8 deals with transactions of sale or purchase taking place within the State. The disallowance of deduction claimed by the assessee under clause (ii) of section 8 of the Act, therefore, would not result in double taxation of the same goods. [881H 882C, 883C] While it is true that the Baroda dealer being a dealer registered under section 7 of the Central Sales Tax Act, in the instant case, was in certain contingencies, liable to pay tax under section 4 of the Act, but that circumstance by itself would not make him a "registered dealer" within the meaning of section 2(25) of the Act. If the legislature really intended that the expression "registered dealer" in clause (ii) of section 8 should take within its ambit a dealer registered under the Central Sales Tax Act, upon whom liability to pay sales tax is imposed by section 4 of the Bombay Act, it would have said so in the clear words section (2) of section 4. The legal fiction in sub section (2) of section 4 is created for a limited purpose, namely, to make section 4 a self contained code which not only imposes a charge of tax and lays down the rate structure, but also provides the machinery for assessment and recovery of tax and penalty. The legal fiction contained in sub section (2) of section 4 of the Act cannot be stretched any further. [883D E, G]

% Sub section (2) of section 9 of the makes the assessment procedure prescribed under the general sales tax law of the appropriate State applicable to the assessment to be made under the Central Act. Section 13 of the Andhra Pradesh General Sales Tax Act, 1957 requires the dealer to submit returns in such manner, within such period and to such authority as may be prescribed. Sub section (1) of section 14 permits the assessing authority to assess the amount of tax due on the returns submitted under section 13 only within a period of four years from the expiry of the year to which the assessment relates. Sub section (3) permits the assessing authority to make best judgment assessment where a dealer (i) fails to submit return before the date prescribed; (ii) produces the accounts registers and other documents after inspection and (iii) submits a return subsequent to the date of inspection, within a period of six years from the expiry of the year to which the assessment relates. In the main appeal before this Court the assessee respondent filed its return relating to the quarter ending 31st March, 1969 on 7th August, 1969 under the . The last date prescribed by law was 24th May, 1969. The Commercial Tax officer passed the assessment order on 3rd August, 1973, beyond four years from 31st March, 1969, the last day of the assessment year 1968 69. The assessee 's appeals against that order were dismissed by the Assistant Commissioner and the Sales Tax Appellate Tribunal. The High Court in revision, however, held that the assessment made after four years from the last day of the assessment year was not a valid assessment. 737 In the connected appeal the respondent who was the assessee filed the annual return in respect of the assessment year 1968 69 under the A provisions of the Central Act on 19th August, 1969 after the expiry of the prescribed date. The order of assessment was passed on 2nd August, 1973 beyond four years from the last day of the assessment year 196869. An appeal against that order was dismissed by the Assistant Commissioner. The Sales Tax Appellate Tribunal, however, allowed the appeal holding that the assessment had been passed beyond four years from the last day of the assessment year. The revision petition preferred by the State was dismissed in limine by the High Court. In the appeals by special leave filed by the State, it was contended for the respondent that since the returns in the cases had been accepted, even though they had filed been beyond the prescribed date, the assessments made thereon could not be considered as best judgment assessments and, therefore, sub section (3) of section 14 of the Act under which it is permissible to make best judgment assessments would be inapplicable. Allowing the appeals. D ^ HELD: 1.1 on a true construction of sub section (1) and sub section (3) of section 14 of the Andhra Pradesh General Sales Tax Act, 1957 it is apparent that where a return is not filed by a dealer before the date prescribed in that behalf under the Act the assessing authority has jurisdiction to complete the assessment within a period of six years from the expiry of the year to which the assessment relates. [744C] 1.2 The two types of cases which fall under sub section (1) and sub section (3) of section 14 of the Act respectively are mutually exclusive. The return on the basis of which an assessment is to be made under section 14(1) is a return filed within the prescribed period and in such a case the assessment has to be completed within a period of four years from the expiry of the period to which the assessment relates. The Act confers a distinct advantage on such a dealer who is prompt in filing his return inasmuch as he acquires immunity against assessment on the expiry of the said period of four years. All cases where the return is submitted beyond the prescribed date fall under sub section (3) of section 14 of the Act. Assessment in such cases may be completed within six years from the expiry of the year to which the assessment relates. When once it is established in a case that a return has not been filed within the prescribed period such case falls outside section 14(1) of the Act and therefore the period of four years prescribed therein becomes automatically inapplicable. It clearly falls under cl. (i) of sub section (3) of section 14 of the Act and assessment can be H 738 made in such a case within the expiry of the period of six years. In the instant cases the returns were not filed within the prescribed dates. The assessments have, therefore, been rightly made within six years from the expiry of the year to which the assessments relate. [742G H; 743A B; 744C] 2. Whether the assessment made is the best judgment or not has no bearing at all on the period within which an assessment can be made under the Act. It depends upon the other conditions mentioned in sub section (1) and (3) of section 14. Best judgment assessment can be made even in a case falling under sub section (1), as is evident from the latter part of that sub section which reads: "but if the return appears to him to be incorrect or incomplete he shall after giving the dealer a reasonable opportunity of proving the correctness and completeness of the return submitted by him and making such inquiry as he deems necessary, to assess to the best of his judgment, the amount of tax due from the dealer." Yet such best judgment assessment has to be completed within a period of four years from the expiry of the year to which the assessment relates. Therefore, in the instant case merely because the assessments are not best judgment assessments, it cannot be said that sub section (3) of section 14 is inapplicable. Neither the High Court nor the Tribunal gave adequate attention to the words 'before the date prescribed in that behalf ' in cl. (i) of sub section (3) of section 14. They laid emphasis only on the words 'fails to submit return ' in the said sub clause to arrive at a wrong conclusion. [743C, H; 744A B] State of Andhra Pradesh vs Pyarelal Malhotra, (13 S.T.C. 946), and State of Madras vs S.G. Jayaraj Nadar & Sons, 28 S.T.C. 700, distinguished.

The appellant company a licensee under the central Excises and Salt Act, 1944 and during the relevant period namely 1st September, 1961 to 26th September, 1963 carried on the business of manufacturing different types of glass wares which were excisable goods under the Act. The appellant used to present A.R.I. forms accompanied with price lists of the goods and after paying excise duties calculated on the basis of the price lists used to remove the goods. The office of the appellant was searched by the Excise Authorities on 26th September, 1963 and several documents, books and papers were seized, and as a consequence thereof it transpired that the appellants were maintaining two sets of bills. The bills of one set were those on the basis of which the appellant used to pay excise duty before clearance of the goods and those of the other were such which were never issued to the dealers. In these two sets of bills, the rate of discount was differently shown. A notice dated 26th March, 1968 was served on the appellant by the Assistant Collector stating that it appeared that during the relevant period the appellant had not paid excise duty on the goods at the prices at which they were sold, but duty was paid at lower rates and requiring it to show cause as to why duty on the prices at which the good were actually sold, as found on scrutiny of sale vouchers/sale documents should not be recovered under Rule 10A of the Central Excise Rules, 1944. In reply the appellant asserted that it was the provision of Rule 10 and not Rule 10A which was attracted to the facts and consequently the initiation of proceedings was barred by time. This plea did not find favour with the Excise Authorities, and the appellant was required to pay the additional duty of Rs. 1.41 lakhs. The aforesaid order was challenged by the appellant before the 44 High Court under Article 226 of the Constitution and a Single Judge accepted the contention of the appellant the Rule 10 and not Rule 10A of the Rules was applicable and on this view quashed the order dated 26th August, 1968 The respondents preferred and appeal to the Division Bench which has reversed the order of the Single Judge, on the finding that it was a case falling Rule 10A and dismissed the writ petition. In the appeal to this Court it was contended that the single Judge was right in taking the view that the case fell within the purview of Rule 10 of the Rules and that the Division Bench committed an error in reversing the Judgment, while the Revenue contested the appeal urging that on the facts found by the division Bench, and indeed on the case set up by the appellant itself no exception could be taken to the finding of the Division Bench that it was Rule 10A and not Rule 10 which was attracted to the facts of the case. Dismissing the Appeal, this Court, HELD: 1. The question as to whether Rule 10 or Rule 10A was applicable has to be determined in the background of the procedure which was followed. The legal position is that Rule 10A does not apply where the case is covered by Rule 10 of the Rules. [48E] N.B. Sanjana vs Elphinstone Mills, ; relied on. Simply because Rule 9B of the Rules, was conceded not to have been taken recourse to by the respondents so that provisional assessment could be said to have come into existence in its statutory sense as contemplated by the said rule when duty was paid at the time of clearance of the goods, the conclusion was not inescapable, that a final assessment had came into being at that time. [49A B] 3. In view of the procedure adopted by the appellant it was apparently a case where duty was calculated on the basis of price lists supplied by the appellant to facilitate the clearance of the goods and the correct amount of duty payable was yet to be determined after subsequent verification, and appellant was under an obligation to pay, on the basis of the bond executed by them, the difference of the amount of the duty paid at the time of clearance of the goods and the amount found payable after subsequent varification. [49B C] 4. The Division Bench of the High Court has found that there was no assessment as is understood in the eye of law, but only a mechanical settlement or adjustment of duties on the basis of the sale prices filed by the appellant had been made and at best, it was a case of incomplete assessment which the Excise Authorities were entitle to complete under Rule 10A.[49D] Assistant Collector of Central Excise, Calcutta Division vs National Tobacco Co. of India Ltd., ; , referred to. The instant case therefore falls within the purview of Rule 10A and not Rule 10 of the Rules.

These Civil appeals and special leave petitions centred round one point, namely, the validity of the Bombay Motor Vehicles Tax Act, 1958 as amended by Section 3 of the Maharashtra Act XIV of 1987 and Section 6 of the said Act as amended by Maharashtra Act XXXIII of 1987 and the Maharashtra Act IX of 1988. Section 3 of the said Act XIV of 1987 added sub section (IC) to provide for the levy of one time tax at 15 times the annual rate on all motor cycles in the State. The said provisions further provided that in the case of motor cycles owned by a company or other commercial organisation, the one time tax was to be levied at thrice the rate. Section 6 of the said Act XIV of 1987 added sub section (6) to section 9, enabling a registered owner of a motor cycle or tricycle to obtain refund of `Lone_time tax" under certain conditions. Petitions were filed in the High Court by the respondents in the appeals and petitioners in the special leave petitions, challenging the amended provisions of the principal Act. The High Court held that (i) the levy of the one time tax was beyond the legislative competence of the State Legislature and also beyond Entry 57 of List II of the Seventh Schedule, and (ii) the provision for imposition of levy at thrice the rates on the vehicles owned by a firm or company, were neither discriminatory nor arbitrary. The High Court struck down Act XIV of 1987. The appeals by leave were filed by the State and the special leave petitions were fixed by the petitioners in this Court against the decision of the High Court. In the meanwhile, the Maharashtra Legislature enacted Maharashtra Act XXXIII of 1987, which deleted Section 3(4) of the principal Act as amended by the PG NO 482 PG NO 483 Maharashtra Act XIV of 1987, whereby the existing provisions of refund for temporary non user were made inapplicable in cases of motor cycles and tricycles, restricting the right of refund to Section 9(6) in the contingencies mentioned therein. It also introduced sub section (7) to section 9 conferring the right of refund in respect of motor cycles and tricycles in accordance with the rates specified in the Fifth Schedule. But the said schedule did not prescribe a separate rate of refund for the company owned vehicles. Therefore, the refund in respect of the company owned vehicles was the same as that payable to individual owned vehicles even though the tax paid on former class of vehicles was three times. Soon thereafter, the Maharashtra Legislature enacted Act IX of 1988, whereby the only relevant change for the present purpose was that the rate of refund was enhanced to three times in respect of the company owned vehicles. Before this Court, the appellant State submitted that the amendments enacted by the Maharashtra Acts XXXllI of 1987 and IX of 1988 had brought the principal Act as amended by the Maharashtra Act XIV of 1987 within the constitutional requirements of making one time tax 's regulatory and compensatory tax and that it was not necessary to decide if the Act as it stood when it was challenged before the High Court? was beyond the legislative competence of the State Legislature. The respondents in the appeals and the petitioners in the special leave petitions urged that as even after the amendment no refund was available in respect of a vehicle which had been registered for more than 13 years? the effect of that was that no refund al all was available in respect. of the tax paid for a vehicle for the 14th and 15th years. The impugned levy of tax ceased to be compensatory or regulatory and was void under Entry 57 of List II and was violative of Article 301 of the Constitution. Disposing of the appeals and dismissing the special leave petitions the Court. HELD: The tax imposed on the motor vehicles or a class of motor cycles would not be valid unless it is compensatory or regulatory or does not have any nexus with the vehicles using the roads. In such a case. the levy would be Section of the said Act XIV of 1987 added sub section (IC) to provide for the levy of one time tax at 15 times the annual rate on all motor cycles in the State. The said provisions further provided that in the case of motor cycles owned by a company or other commercial organisation, the one time tax was to be levied at thrice the rate. The fact that the act, as at present, did not provide for refund in the 14th and 15th years, did no make the law outside the competence of the State Legislature. he concept PG NO 484 of "regulatory and compensatory" tax does no imply mathematical precision of quid pro quo. [489E] After the amendment, the Act came with in the constitutional requirements of making he one time tax a regulatory and compensatory tax. It was true that the Act has no provided for refund in the 14h and 15h years but that does no make he law out sides the competence of the State Legislature. It is no mathematical precision that is necessary nor can it be. there is in the provisions as amended, as amended, a discernible and an identifiable object behind the levy and a nexus between the subject and the object of the levy, [491E F] Two principles have to be emphasised, firstly, that the tax must be regulatory and compenstaory and secondly, there must be no discrimination. A taxation law cannot claim immunity from the equality clause in Article 14 of the Constitution, but in view of the intrinsic complexity of fiscal adjustments of diverse elements, a considerable wide discretion and latitude in the matter of classification for taxation purpose is permissible. The life of Motor cycles and tricycles normally exceeds 25 years. Non refund for certain period is no conclusive of the matter. Even if mathematical provision is no possible, it cannot be said that it is wholly unmathematical. The collection of ax for a period of 15 ears at one point of time is a convenient method enabling the owner o use he vehicle for more than 25 years without having to pay the tax periodically and pay the enhanced tax at may be levied during the 25 years of life of the vehicle. Regulatory and compensatory tax can be levied to the extent e State is required to pay for rendering the services. [491G;492A C] The Act, as at present, is not violative of Article 145 of the Constitution. The fact that the company owned vehicles are taxed that three times the rate payable by individuals, does not make the legislation violatvie of Article 14. Histrocially, the company owned vehicles are always been taxed at a rate higher that the individually owned vehicles. he legislature has he power to distribute tax burden in a flexible manner and the Court would no interfere with the same. It could not be said that there was differentiation without any basis and as such there was discrimination. [492E H] In view of the principles applicable to the taxation laws and various other factors, the Maharashtra Act as amended from time to time does not suffer from any vice of being not regulatory or compensatory taxation nor from the vice of being violative of Article 14 of the Constitution, and the challenge to the provisions of the Act as amended PG NO 485 after the judgment of the High Court could not be maintained. [494G ;495A] After the amendments afore mentioned the Act does no suffer from the vice mentioned in the judgment of the High Court . The appeals were allowed thus, and the challenge made in the special leave petitions was dismissed. [495] The taxes would be realised in accordance with the Act and the necessary adjustments would be made accordingly. [495C] Bolani Ors. Ltd. vs State of Orissa. ; ; G.K. Krishnan vs The State of Tamil Nadu & Anr., [1975] 2 S.C.R. 715; Malwa Bus Service (P) Ld. vs State of Punjab and Ors. , ; ' International ouris Corporation vs State of Haryana & Ors., ; ; Income tax Officer, shillong & Anr. vs N. Takim Roy Rymbai, etc., ; Mrs. Meenakshi & Ors. vs, State of Karnataka & Ors., AIR 1983 SC 1283; Anant Mills Co. Ltd. vs State of Gujarat and Ors., [1975] 3 S>.C.R. 220; Khandige Sham Bhat & Ors. vs The Agricultural Income tax Officer; , and State of Karnataka vs K. Gopalakrishna Shenoy and Another, ; , refered to.

The appellant collected sales tax from the purchasers of betel leaves in connection with the sales made by it. But it did not pay the amount collected to the Government. The Government directed the appellant to pay the amount to the Government and it thereupon filed a writ petition in the High Court questioning the validity of section 11(2) of the Hyderabad General Sales Tax Act 1950. The main contention of the appellant before the High Court was that section 11(2) of the Act which authorises 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 under the authority of a law enacted under the Entry 54 of List II of the VII Schedule to the Constitution any such amount as it was not a tax on sale or purchase of goods. The High Court held that a. 11(2) was good as an ancillary provision with regard to the collection of sales or purchase tax and therefore incidental to the power under Entry 54, List II. The High Court also held that even if section 11(2) cannot be justified under that entry it could be justified under Entry 26, List II and in the result the writ petition was dismissed. The present appeal is by way of special leave granted by this Court. Held: (i) It cannot be said that the State Legislature was directly legislating for the imposition of sales or purchase tax under Entry 54, list II when it made the provisions of a. 11(2) for on the face of the provisions the amount, though collected by way of tax was not exigible as tax under the law. (ii) It is true that the heads of legislation in the various lists in the Seventh Schedule should be interpreted widely so as to take in all matters which are of a character incidental to the topic mentioned therein. Even so there is a limit to such incidental or ancillary powers These have to be exercised in aid of the than topic of legislation, which in the present case is a tax on sale or purchase of goods. The ambit of ancillary or incidental powers does not so 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 the Govern ment as if it were a tax. Therefore the provision contained in a. 11(2) cannot be made under Entry 54, List II and cannot be justified as incidental or ancillary provisions permitted under that Entry. (iii) Section 11(2) cannot be justified as providing for a for the breach of any provision of the Act. (iv) Entry 26, List II deals with trade and commerce and has nothing to do with taxing or recovering amount realised wrongly as tax. There is no element of regulation of trade and commerce in a provision like section 11(2) and therefore that section cannot be justified under Entry 26. List II. 869 (v) The provision in section 20(c) is also invalid as it is merely consequential to section 11(2). The Orient Papers Mills Ltd. vs State of Orissa, ; , distinguished. State of Bombay vs United Motors (India) Ltd., [1953] S.C.R. 1069, referred to. Indian Aluminium Co. vs State of Madras, (1962) XIII Sales Tax Cases 967. held to be wrongly decided.

No. 96 of 1959. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. 750 section Shaukat Hussain and P. C. Aggarwala, for the petitioners N. section Bindra, R. H. Dhebar and T. M. Sen, for the respondents. April 4. The Judgment of the Court was delivered by SARKAR, J. This is a petition raising a question of violation of the fundamental right to hold property guaranteed by article 19 (1) (f) of the Constitution. It arises out of an order made under the , declaring two houses to be evacuee property. What had happened was that sometime in September, 1951, two notices were issued under section 7 of the Act addressed respectively to Nusrat Ali and Fateh Ali, requiring them to show cause why they should not be declared evacuees and their properties, being the two houses in dispute, to be evacuee property. Neither of these two persons having appeared, a declaration was made by the Custodian on January 10, 1952, under that section that Nusrat Ali and Fateh Ali were evacuees and the houses were evacuee property. Upon such declaration the houses vested in the Custodian under the provision of section 8 of the Act and he took possession of them. These houses were the property of one Khadim Ali who had never been declared an evacuee and had died on or about October 1, 1950, leaving three sons and five daughters, who thereupon became entitled to them in certain shares. Nusrat Ali and Fateh Ali were two of the sons of Khadim Ali. The Petitioners are his other son and two of his daughters. No notice under section 7 had at any time been issued to them nor were they ever declared to be evacuees. These facts are not in dispute. The Petitioners contend that they have been wrongly deprived of their rights in the houses by the action of the Custodian. They say that for a, long time they had no knowledge of the proceedings taken under the Act in respect of the houses and when they came to know of the order of the Custodian, they took various steps to protect their rights but were unsuccessful. 751 One of such steps appears to have been an appeal preferred by the male petitioner on behalf of all the petitioners to the Custodian General against the order of January 10, 1952. On this appeal being rejected, they moved this Court by the present petition. The question is whether the Custodian was entitled to declare the entirety of the two houses evacuee property and deprive the petitioners of their rights in them. It is well established and not disputed, that no property of any person can be declared to be evacuee, property unless that person had first been given a notice under B. 7 of the Act: see Ebrahim Aboobaker vs Tek Chand Dolwani (1). Admittedly, no such notice had been issued to the petitioners. Their interest in the houses, therefore, could not have vested in the Custodian. Learned counsel for the respondents, the officers concerned with evacuee properties, concedes that so far as the female petitioners were concerned, their interest could not in any way be affected by the order made under section 7 of the Act. He however contends that the male petitioner, Zafar Ali, having filed the appeal to the Custodian General against the order of January 10, 1952, he personally at least, is bound by the order dismissing the appeal, that order being a quasi judicial decision. It is said that be cannot, there fore, maintain this petition. We do not think that this contention is well founded. Zafar Ali was not a patty to the proceeding in which the order in dispute had been made. Strictly speaking, no appeal by him against that order lay or was necessary. Then again the appeal did not decide any question as to the right of Zafar Ali to the houses for, it was dismissed on the sole ground that it bad been filed beyond the time prescribed for it. There was no judicial determination by the Custodian General of any fact affecting Zafar Ali 's right in the houses. If, as was conceded, Zafar Ali 's share in the houses could not vest in the Custodian without due notice to him, then we are unable to appreciate how the position becomes different because Zafar Ali filed an appeal (1) ; , 702. 752 which was dismissed as time barred and which he need never have filed at all. The order of January 10, 1952, was without jurisdiction so far as Zafar Ali 's share in the house was concerned, and it remained so in spite of the appeal. In our view, the appeal furnishes no answer to the claim made in the petition. As no notice had been issued to the petitioners under section 7, their interest in the two houses never vested in the Custodian. The acts of the Custodian in so far as they deprive the petitioners of their property cannot be upheld. It was also said on behalf of the respondents that the properties had already been acquired under the , and therefore the petitioners had, no longer, any claim to them. Sub section (2) of section 12 of this Act provides that "On the publication of a notification under sub section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances. " It was said that a notification mentioned in this section had been issued. It seems to us that this section does not affect the petitioners ' rights. It only affects the rights of an evacuee which the petitioners, on the admitted facts, are not. We may mention here that the petitioner Zafar Ali claims that his father left a will giving him a larger share in the houses than he would have got on intestacy. We are not concerned in this case with his rights under the will, if any, and say nothing about them. In the result, we allow the petition and set aside the order of January 10, 1952, in so far as it affected the rights of the petitioners in the properties concerned. There will be no order as to costs. Petition allowed.

The Custodian of evacuee properties made a declaration that two houses were evacuee properties. Notice under section 7 of the , which initiated the proceedings resulting in the declaration had been served on two persons as owners. These persons did not appear and contest the proceedings. The petitioners claimed to be entitled to certain shares in the houses. No notice under section 7 Of the Act had at any time been served on them and they had never been declared evacuees. One of the petitioners filed an appeal under the Act to the Custodian General which was dismissed as time barred. The petitioners then filed a petition under article 32 Of the Constitution of India on the ground that they were being wrongfully deprived of their shares in the houses. Held, that as no notice under section 7 of the Act had been ser ved on the petitioners, their shares in the houses had never become evacuee property nor vested in the Custodian. The petitioner who had filed the appeal did not thereby lose his rights in the houses either as the appeal did not decide any question as to such rights but was dismissed on the sole ground that it was filed beyond the time prescribed for it. Strictly, no appeal by him lay as he was not a party to the proceeding resulting in the declaration. Section 12 of the , only affects the rights of an evacuee in his property. The notification made under that section did not have the effect of extinguishing the petitioners ' rights in the houses as they had never been declared evacuees. Ebrahim Aboobaker vs Tek Chand Dolwani, ; , referred to.

On the strength of a Will dated 25th May 1959, executed in her favour by one Purohit Mani Ram, the respondent Smt. Ishroo Devi filed a suit for recovery of the schedule property in the plaint. It was alleged in the plaint that the appellants (A 1, son; A 2, Wife; and A 3, grand daughter of Purohit Mani Ram) after the death of Purohit Mani Ram wrongfully disposed her after getting the name of appellant No. 1 mutated in the records and that the three items of the schedule property were the separate properties of the testa tor and that he was entitled to dispose them under the Will. The appellants averred in their written statement that the properties belonged to the joint family of which the first appellant and his father Purohit Mani Ram were members and as the properties were joint family properties, they cannot he disposed of by Will. It was further alleged that the Will was a forged one and is fictitious. The trial court, accepting the evidence of PW1, an advocate, who advised in the preparation of the Will and also an attest ing witness, PW2 the scribe and PW3 who deposed the fact that the properties were self acquired ones of late Purohit Mani Ram, decreed the suit as regards item No. 1 (a) of the plaint schedule but dismissed the claim as regards items l(b) and 2 holding that they were ancestral ones. On ap peal, the High Court accepted the findings of the trial court and confirmed the decree as regards item l(a) of the property but modified the order as regards item l(b) and 2 by allowing the claim of the respondent to the extent of 1/2 share since under section 27 of the Jammu & Kashmir Hindu Succession Act Mani Ram was entitled to dispose of his interest in the joint family property by Will. In appeal by certificate to this Court, the appellant contended: (i) The Will was not a valid one for the reasons, namely, (a) it was ante dated in order to escape the prohi bition against alienation introduced by Ordinance which came into force in July 1959; (b) the signature on the Will was forged; (c) the Will is a most unnatural one as it had not provided for the son or the wife or any near relative but has provided to a distant relative and (d) in a suit for partition filed by the son against Mani Ram, the latter gave an undertaking in the court not to alienate his properties which would improbalise the execution of the Will; (ii) The hereditary profession of Mani Ram being that of a priest whatever he earned while practising that profession and all his acquisitions should be held to be joint family property. (iii) In view of the Mitakshara law applicable to the estate when partition of the joint family property takes place during the father 's life time at the instance of the son, the mother also has a share equal to him. The Court confirmed the decree in respect of item 1 (a) of the property in favour of the respondent, modified the decretal order of the High Court in respect of items 1(b) and 2 of the schedule property as 1/3rd in favour of appel lant No. 1, 1/3rd in favour of appellant No. 2 and 1/3rd in favour of respondent as entitled by the Will. The Court, HELD: (1) The plea that the Will was executed after July 1959 when there was a prohibition against the alienation and that it was pre dated and not executed 401 on the day on which it purports to be is without any sub stance and against the evidence on record. [403 H, 404 A] (2) The contention that the Will is an unnatural one is also without substance. The non disclosure of the execu tion of the Will is understandable because Mani Ram did not want anyone, particularly his son, to know about his pos sessing of the property by Will. [404 B, D] (3) The findings of the two lower courts that the Will is a genuine one and was executed by Mani Ram by his own free will cannot be assailed. In fact, there was no chal lenge to the gist of the Will noted by PW2, the scribe, in one of his regularly kept record; there was no denial by the first appellant, the son of Mani Ram that the signature found in the Will was not that of his father and there is no reason why the cogent evidence of PW 1, a respectable advocate who spoke of his advising in the preparation of the Will having seen the executant sign the Will in his presence be not accepted. [405 A C] (4) The income from the practice of a hereditary profes sion will not be a joint family property. Item 1 (a) of the Property is the self acquisition of Mani Ram and the decree of the appellate court so far as item No. 1 (a) is concerned must be confirmed. [406 A, D] Hanso Pathak vs Harmandil Pathak and Anr., AIR 1934 Allahabad 851, approved. Chalabhai Gaurishankar vs Hargowan Ramji & Ors. I.L.R. 36 Born. 94, over ruled. (5) Under the Mitakshara law excepting Madras, in the other states referred to in the decisions cited when there is a partition between the son and his father the mother is entitled to a share equal to that of the son. In the in stant case the case of the first appellant was that the joint family consisted of himself and his father alone, though in the earlier partition suit filed by him he claimed 1/3rd share conceding that his father and mother are entitled to the other 2/3rd share. As no decision in re spect of the interest of the male Hindu in Jammu & Kashmir was cited the question is remitted to the High Court for decision as to what is the extent of the interest as regards items I(b) & 2 of the plaint Schedule properties. [406 E F, 407 B E] Dular Koeri vs Dwarkanath Misser ILR ; Sumrun Thakoor vs Chunder Mun Misser & Ors., ILR ; Hos banna Devanna Naik vs Devanna Sannappa Naik and Ors. ILR and Pratap Singh vs Dalip Singh ILR 52 All. 596, approved. (6) In view of section 27 of the Jammu & Kashmir which provides that any Hindu male may dispose of by Will any property which capable of being disposed of by him in law and also explanation to that section which makes it clear that the interest of a male Hindu in a Mitakahara coparcenary property be deemed to be property capable of being disposed of by him within the meaning of the sub section, in the instant case Mani Ram can dispose of his share under a Will. Admittedly the respondent, will be entitled to 1/3rd share in respect of item l(b) and 2 of the plaint schedule in addition to the decree in her favour in respect of item 1 (a). [406 D E, 407 E F] [The Court remitted the case back for the determination of the interest which Mani Ram had in the joint family property at the time of his death which he could dispose of by his Will and grant a decree accordingly.]

The petitioner challenged his detention under the Jammu were sent to him by way of an annexure to the District Magistrate 's order of detention. The petitioner was informed that, if he so desired, he could make a representation to the Government against the alleged order of detention. It was argued on behalf of the petitioner that some of the grounds of detention were so vague that he did not find it possible to exercise his fundamental right of making a representation under article 22(5) of the Constitution and that some of the grounds were irrelevant for the purposes of making an order under section 8. ^ HELD: The argument that only the "preamble" of the order of detention was vague but not the grounds is not tenable. [264B] "Preamble" has been defined "as an introductory paragraph or part in a statute deed, or other document setting forth the grounds and intention of it". The preamble thus betokens that which follows. The respondents ' counsel did not, however, find it possible to point out where the preamble could be said to begin, or to finish, and which of the paragraphs could be said to constitute the grounds of detention as such. [262 G H, 263A] This Court has disapproved of vagueness in the grounds of detention because that impinges on the fundamental right of the detenu under article 22(5) of the Constitution to make a representation against the order of detention when the grounds on which the order has been made or communicated to him. The purpose of the requirement is to afford him the earliest opportunity of seeking redress against the order of detention. But, as is obvious, that opportunity cannot be said to be afforded when it is established that a ground of detention is so vague that he cannot possibly make an effective representation. Reference made to paragraphs which were held to be vague. [263E, H, 264 B D] State of Bombay vs Atma Ram Sridhar Vaidya ; , Tarapada De and Ors. vs The State of West Bengal, ; , Dr. Ram Krishan Bhardwaj vs State of Delhi and Ors. ; , Shibban Lal Saxena vs State oj Uttar Pradesh ; , Rameshwar Lal Patwari vs State of Bihar and Ors., ; , and Pushkar Mukherjee and Ors. vs State of West Bengal, ; 259 It is equally well settled that a ground is said to be irrelevant when it has no connection with the satisfaction of the authority making the order of detention under the appropriate law and taking any such ground into consideration vitiates the order of detention. It was held that irrelevant grounds were, nevertheless, taken into consideration for making the impugned order, and that was quite sufficient to vitiate it. [267A B] Keshav Talpade vs The King Emperor, , Satya Brata Ghose vs Mr. Arif Ali, District Magistrate Shibsagar, Jorhat and Ors, , and K. Yadava Reddy and Ors. vs The Commissioner of Police, Andhra Pradesh, Hyderabad and Anr., I.L.R. 1972 Andhra Pradesh 1025, affirmed. Chinnappa Reddy, J. (Concurring) ^ HELD: A law providing for preventive detention and action taken under such a law, to pass muster, have to satisfy the requirements of both Articles 19 and 22 of the Constitution. [268D E] The interpretation of Article 22(5) consistently adopted by this Court is, perhaps, one of the outstanding contributions of the Court in the cause of Human Rights. The law is now well settled that a detenu has two rights under Article 22(5) of the Constitution (1) to be informed as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him. The inclusion of an irrelevant or non existent ground among other relevant grounds is as infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. In either case there is an invasion of the Constitutional rights of the detenu entitling him to approach the Court for relief. The reason for saying that the inclusion of even a single irrelevant or obscure ground among several relevant and clear grounds is an invasion of the detenu 's constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds and it cannot substitute its objective decision for the subjective satisfaction of the detaining authority. [269A D] The argument that only that allegation which was the immediate cause of the order of detention was to be treated as the ground of detention and all other allegations recited in the order of detention were to be treated as introductory and background facts cannot be accepted. The factual allegations contained in the document supplied to the detenu as furnishing the ground of detention cannot be so dissected. The last straw which broke the camel 's back does not make weightless the other loads on the camel 's back. [269 G H, 270E] The expression 'Naxalite ' conveys different meanings to different persons depending on the class to which one belongs, his political hues and ideological perceptions. It is as vague or as definite as all words describing ideologies such as "democracy" etc. It is a label which may be as misleading as any other. [270F G, 271A] Expressions like 'revolt ' and 'revolution ' are flung by all and sundry in all manner of context and it is impossible to attach any particular significance to 260 the use of such expressions. Every turn against the establishment is called 'revolt ' and every new idea is labelled as 'revolutionary '. Without specification of the particular form of revolt and revolution which was advocated, the ground of detention must be held to be irrelevant and vague. [271 C D] A. K. Gopalan vs State of Madras, ; R. C. Cooper vs Union of India, ; distinguished.

Where the High Court dismisses a writ petition under article 226 of the Constitution after hearing the matter on the merits on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified, a subsequent petition to the Supreme Court under article 32 of the Constitution on the same facts and for the same reliefs filed by the same party would be barred by the general principle of res judicata. There is no substance in the plea that the judgment of the High Court cannot be treated as res judicata because it cannot 575 under article 226 entertain a petition under article 32 of the Constitution. Citizens have ordinarily the right to invoke article 32 for appropriate relief if their fundamental rights are illegally on unconstitutionally violated and it is incorrect to say that article 32 merely gives this Court a discretionary power as article 226 does to the High Court. Basheshar Noth vs Commissioner of Income tax, Delhi and Rajasthan, [1959] SUPP. 1 S.C.R. 528, referred to. Laxmanappa Hanumantappa jamkhandi vs The Union of India; , , and Diwan Bahadur Seth Gopal Das Mohla vs The Union of India, ; , considered. The right given to the citizens to move this Court under article 32 is itself a fundamental right and cannot be circumscribed or curtailed except as provided by the Constitution. The expression "appropriate proceedings" in article 32,(1), properly construed, must mean such proceedings as may be appropriate to the nature of the order, direction or writ the petitioner seeks from this Court and not appropriate to the nature of the case. Romesh Thappar vs The State of Madras, ; , referred to, Even so the general principle of res judicata, which has it. ; foundation on considerations of public policy, namely, (1) that binding decisions of courts of competent jurisdiction should be final and (2) that no person should be made to face the same kind of litigation twice over, is not a mere technical rule that cannot be applied to petitions under article 32 of the Constitution, Duchess of Kingston 's case, 2 Smith Lead. 13th E d. 644, referred to. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under article 226 passed after a hearing on merits as aforesaid must bind the parties till set aside in appeal as provided by the Constitution and cannot be circumvented by a petition under article 32. Pandit M. section M. Sharma vs Dr. Shree Krishna Sinha, and Raj Lakshmi Dasi vs Banamali Sen, [1053] S.C.R. 154, relied on. Janardan Reddy vs The State of Hyderabad, ; , Syed Qasion Rezvi vs The State of Hyderabad, [1953] S.C.R. 589 and Bhagubhai Dullabhabhai Bhandari vs The District magistrate, Thana; , , referred to. It was not correct to say that since remedies under article 226 and article 32 were in the nature of alternate remedies the adoption of one could not bar the adoption of the other, Mussammat Gulab Koer vs Badshah Bahadur, (1909) 13 1197 held inapplicable. 576 Consequently, (1) where the petition under article 226 is considered on the merits as a contested matter and dismissed by the High Court, the decision pronounced is binding on the parties unless modified or reversed by appeal or other appropriate proceedings under the Constitution; (2) Where the petition under article 226 is dismissed I not on the merits but because of laches of the party applying for the writ or because an alternative remedy is available to him, such dismissal is no bar to a subsequent petition under article 32 except in cases where the facts found by the High Court may themselves be relevant even under article 32; (3) Where the writ petition is dismissed in limine and an order is pronounced, whether or not such dismissal is a bar must depend on the nature of the order; (4) if the petition is dismissed in limine without a speaking order, or as withdrawn, there can be no bar of res judicata.

One Viswanatha Iyer who had two minor daughters but no male issue treated his brother Seetharama Iyer 's son, the appel lant, as a foster son and before his death made a will by which he left the management of his properties to his brother and provided that as soon as his minor daughters attained majority Seetharama should give them each one Veli of nanja land and one Veli of punja land in vattam No. 149 in village Nagampadi and should give possession of the remaining property to the appellant on his attaining majority. The daughters after attaining majority claimed possession of their land alleging that they were entitled under the will to select their respective one Veli of nanja land and one Veli of punja land out of the land in Vattam 149. A suit filed by the daughters on that allegation was decreed by the trial court and the decree was affirmed by the High Court holding that the English rule of benevolent construction that a legatee has a right to choose in such circumstances applied to India and that on the construction of the will in this case the right to choose was in the legatees and not in Seetharama. Held, that section 89 of the , which lays down that "a will or bequest not expressive of any definite intention is void for uncertainty", applies only to those cases where a will is so indefinite that it is not possible to give any definite intention to it at all; but there may be wills which use words which are not so uncertain that a definite intention cannot be ascribed to the testator under those words and it is to meet such cases that the English rule of selection by legatees was evolved. This rule of benevolent construction which is based on common sense and by which wills not quite uncertain can be made certain cannot be called an artificial rule and there is no reason why it should not be extended to India in appropriate cases. Narayanasami Gramani vs Periathambi Gramani, (1895) I.L.R. , approved. Bharadwaja Mudaliar vs Kolandavelu Mudaliar, (1915) 29 M.L.J. 717, discussed. Hobson vs Blackburn, ; ; , Peck vs Halsey, ; (1726) 2 P. Wms. 387; , Tapley vs Eagleton, , Duckmanton vs Duckmanton ; (1860) 5 H. & N. 220; and Knapton vs Hindle, , referred to. 975 Asten vs Asten, and Bishop vs Holt, , held inapplicable. The gift in the present case was not void for uncertainty within the meaning of section 89 of the Succession Act for it could be made certain by the selection of the daughters. The testator had clearly indicated what he intended his daughters to get but the difficulty arose because the area of the vattam was more than what was given to the daughters; it must be held in the circumstances of the case that the testator intended that each daughter would select the land devised out of the vattam. There were no words in the will from which it could be inferred that Seetharama was nominated by the testator to make the selection.

The petitioners, in this round of challenge assailed the validity of Section 14M, 17(c), 17(6) and 21 B of the West Bengal Land Reforms Act, calling to their aid certain observations made by this Court in Sri Sri Kalimata Thakurani and Sri Sri Raghunath Jain & Ors etc vs Union of India & Ors. ; and the decisions in Minerva Mills Ltd. vs Union of India & Ors. [1981] 1 S.C.R. 206 and Waman Rao & Ors. vs Union of India & Ors. ; The petitioners raised the following points: (i) that the total ceiling area allowed to be retained by the 1953 Act in respect of agricultural land in Khas possession of the Raiyats was drastically reduced; (ii) that although the status of Raiyats was conferred on the erstwhile landlords which was heritable and transferable, the institution of bargards was introduced in order to enable the raiyats to cultivate their lands on a 50:50 basis and, (iii) that while the Amendment Act of 1972 had given a right to the raiyats to resume the lands given to the bargardars for their personal cultivation; the subsequent amendments took away this right and made the right of the bargardar both heritable and transferable causing serious detriment and prejudice to the raiyats. Dismissing the petitions, the Court. ^ HELD :1.1 The impugned amendments were manifestly and pointedly made for the purpose of giving effect to and securing the objects of Article 39(b) because these Acts clearly intended to distribute the material resources of the community viz, the agricultural lands to a large number of tillers of the soil in order to serve the common good on the aforesaid people. The Amendments fall within the letter and spirit of Article 39(b) of the Constitution. 1 lie Acts have not touched the non agricultural home stead lands, or buildings of the Land owners standing thereon but has taken over only a major portion of the agricultural lands, leaving with the landlords a portion prescribed within the 850 ceiling limit and distributed the excess to the tillers of the soil which alone constitute their main source of sustenance and livelihood. The claim of the raiyats (erstwhile landlords) that the Acts amount to confiscation is absolutely untenable and amounts only to shedding crocodile tears and an anathema or taboo. [860 H; 861 A B; 860 G] 1.2 The error regarding the addition of Amending Acts as items of Entry in the Ninth Schedule was inadvertently crept in the decision of Sri Sri Kalimata Thakarani 's case. Even if the Acts were not included in the Ninth Schedule their constitutional validity could not be questioned because the provisions are otherwise reasonable and give full effect to the pragmatic and socialistic approach as contained in Article 39(b) of the Constitution. Sri Sri Kalimata Thakurani and Sri Sri Raghunath Jew and Ors vs Union of India & Ors. [1981]2 S.C.R 950 Minerva Mills Ltd vs Union of India and Ors ; ; Waman Rao & Ors v Union of India & Ors ; Sanjeev Coke Manufacturing Co vs M/s Bharat Coking Coal Ltd and Anr , Sasanka Sekhar Maity & Ors, Union of India & Ors, ; , State of Tamil Nadu etc vs L. Abu Kavur Bai and Ors CA Nos 957 966 (N) of 1973 decided on 31 10 83 followed. 1.3 The Amendment Acts cannot be challenged as violative of the doctrine of nexus or involving no process of distributions; State of Karnataka v Rangnatha Reddy & Anr ; , Minerva Mills Ltd vs Union of India & Ors ; , Sanjeeva Coke Manufacturing Co. vs M/s Bharat Coking Coal Ltd and Anr , and State of Tamilnadu etc vs L. Abukavar Bai & Ors C.A. No. 957 966 (N) of 1973 decided on 31 10 1983 followed. 1.4 The provisions of the Amendment by which the raiyat is enjoined to reside in the village itself for a large part of the year cannot be said to be either harsh or arbitrary. Sri Sri Kalimata Thakurani etc. vs Union of India & Ors. [1981]2 S.C.R. 950, applied.

Practice and Procedure Conduct of parties to be taken into account while granting relief in writ petition. The property in dispute was undivided property (composite property) of three brothers, one of whom died and his sons migrated to Pakistan. One third share of the property was declared evacuee property and vested in the Custodian under the . It was allotted to the appellant who was a refugee. The Competent Officer issued individual notices under Section 6 of the to the two remaining brothers of the evacuee and their acknowledgments were placed on record. Since no claim was filed by anyone, an order was made by the Competent Officer on 31 8 1955 vesting the property in the Custodian under Sec. 11. As the property was again reported to be composite property, fresh notices were inadvertently issued to the co sharers, but no claim was filed by anyone and an order was again made on 23 3 1957 vesting the property in the Custodian. Possession of the evacuees one third share in the property was delivered to the appellant under order of Assistant Custodian. After a lapse of time, the respondents filed an application for 'restoration ' alleging that no notice for separation of the evacuee interest in the property was ever served on them and that they learnt of the vesting order only when the Manager of the evacuee property went to the village to take possession. The Competent Officer passed an order setting aside the vesting order dated 31 8 1955 and transferred the property to the sons of the deceased brother for Rs. 5,000/ . The Assistant Custodian of Evacuee Property made an application to the Competent Officer for a review of his order, pointing out a wrong impression. It was stated that the evacuee interest in the property had already been allotted to the appellant. The Competent Officer partly allowed the review. The respondents questioned the power of the Competent officer to review his order, but the objection was rejected. The respondents filed a writ petition under article 226 of the Constitution. The High Court quashed the order of review on the ground that in the absence of any provision in the Act for review, it was not permissible for the Competent Officer to review his order. Allowing the appeal to this Court, 892 ^ HELD: (1) The conduct of the respondents was such as to disentitle them to a writ and the High Court erred in ignoring that important aspect of the matter even though it was sufficient for the dismissal of the writ petition. [899B] (2) Review is a creature of a statute and cannot be entertained in the absence of a provision therefor. [897G] Harbhajan Singh vs Karan Singh & Ors., ; ; Patel Chunibhai Dajibhai etc. vs Narayanrao Khanderao Jambekar & Anr., ; referred to. Baijnath Ram Goenka vs Nand Kumar Singh, 40 I.A. 54; Ananatharaju Shetty vs Appu Hegde, AIR 1919 Mad. 244, approved. (3) The earlier two orders of the Competent Officer setting aside the vesting order and transferring the evacuee interest in the property to the respondents were therefor without jurisdiction. [897H 898A] (4) But when the respondents had themselves unlawfully invoked the review jurisdiction of the Competent officer, which did not exist, to their advantage, and to the disadvantage of the appellant, they could not be heard to say, when the Department invoked the self same jurisdiction on two important grounds, that the review orders of the Competent Officer were void for want of jurisdiction and must be set aside for that reason. [898H 899B] (5) The High Court failed to appreciate that while it was true that want of jurisdiction to review the order by the Competent Officer could not be cured by waiver, it would not necessarily follow that the Court was obliged to grant a writ at the instance of a party whose conduct was such as to disentitle it for it. The High Court was exercising its extraordinary jurisdiction and the conduct of the petitioners was a matter of considerable importance. [898E] (6) The High Court did not take due notice of the fact that the respondents had allowed the passing of the impugned orders, in spite of the individual notices to them. It did not notice the further fact that when that order had become final because of the failure to file an appeal or an application for revision it was not permissible in view of the specific bar of Sec. 18 for the respondents to move a "restoration" application and to obtain its reversal by the Competent Officer. [898F G]

The petitioner, a West German subject, was placed under pre ventive detention by an order of the West Bengal Government under section 3(1)(b) of the on the ground that he was a foreigner within the meaning of the and that it had become necessary to make arrangements for his expulsion from India and therefore he was required to be detained until the issue of an appropriate order from the Central Government. The questions for determination in the case were: (i) whether section 3(1)(b) of the was ultravires the Constitution inasmuch as it contravenes articles 14, 21 and 22 of the Constitution and whether it was beyond the legislative competence of Parliament to enact such a law; (ii)whether, in any event, the detention was invalid as it was made in bad faith. Held that the impugned portion of the and section 3(2)(c) of the on which it is based are not ultra vires the Constitution inasmuch as; (i)in view of Entry 9 and Entry 10 of the Union list of the Seventh Schedule to the Constitution, the language of which must be given the widest meaning, the legislative competence of Parliament to deal with the question of preventive detention of foreigners 1285 is clear and this covers not only section 3(1)(b) of the but also the , in so far as it deals with the powers of expulsion and the right of the Central Government to restrict the movements of foreigners in India and prescribe the place of their residence and the ambit of their movements in the land; (ii)the was a comprehensive Act dealing with preventive detention and was framed with the Limitations of articles 21 and 22 in view. Section 3(1)(b) of the was enacted to bring the unrestrained power given by section 4(1) of the into line with the provisions of the Constitution; (iii)section 3 (1) (b) of the is reasonably related to the purpose of the Act, namely preventive detention, inasmuch as the right to expel a foreigner conferred by section 3(2) of the on the Central Government and the right to make arrangements for expulsion include the right to make arrangements for preventing any breach or evasion of the order; and the confers the power to use the means of preventive detention as one of the methods of achieving this end; (iv)the State Government is competent to make an order of detention under the law in anticipation of an order of expulsion that is about to be made, or which may be made by the Central Government on the recommendation of the State Government which, though seized with certain powers of Government is not competent to make an order of expulsion itself. Unless a State Government has authority to act in anticipation of orders from the Centre it might be too late to act at all; (v)the impugned section does not offend article 14 of the Con stitution inasmuch as differentiation between foreigner and foreigner as envisaged in section 2(a) and section 3(2)(c) of the and section 3(1)(b) of the is based on a reasonable and rational classification. There is no individual discrimination, and reasons of State may make it desirable to classify foreigners into different groups On the question of good faith, held, that the circumstance of the case did not show bad faith on the part of the West Bengal Government. The is not governed by the provisions of the Extradition Act 1870. The two are distinct and neither impinges on the other. Even if there is a requisition and a good case for extradition, Government is not bound to accede to the request. It is given an unfettered right to refuse, vide section 3(1) of the Extradition Act, and has got an absolute discretion to choose the less cumbrous procedure of the when a foreigner is concerned. As the Government is given the right to choose, no question of want of good faith can arise merely because it exercises the right of choice which the law confers.

vil Appeal No. 139 of 1951. Appeal from the Judgment and Decree dated February 10, 1960, of the High Court of I Judicature at Calcutta (Harries C.J. and Sarkar J.) in Appeal from Original Order No. 95 of 1945, arising out of Judgment and, Order dated January 30, 1945, of the Court of Subordinate Judge at Asansol of Zilla Burdwan in Miscellaneous Case No. 70 of 1941. N. C. Chatterjee '(B. C. Boy and A. E. Mukherjea, with him) for the appellant. Dr. N. C. Sen Gupta (B. L. Pal, with him) for res pondent No. I. 379 1962. December 9. Das J. and Ghulam Hassan J. delivered separate judgments. The judgment of Mahajan J. and Vivian Bose J. was delivered by MAHAJAN J. MAHAJAN J. In our opinions the decision can be rested on either of the ground, which have been raised by our brothers Das and Ghulam Hasan respectively. We would therefore allow the appeal on both the grounds. DAS J. I have had the privilege of perusing the judgment delivered by my learned brother Hasan and I agree with his conclusion that this appeal should be allowed. I would, however, prefer to rest my decision on a ground different from that which has commended itself to my learned brother and as to which I do not wish to express any opinion on this occasion. The relevant facts material for the purpose of disposing of this appeal have been very clearly and fully set forth in the judgment of Hasan J. and I need not set them out in detail here. Suffice it to say that on June 12, 1931, the High Court, Original Side, which is the Court which had passed the decree, transmitted the same for execution to the Asansol Court through the District Judge of Burdwan and that the Asansol Court thereupon acquired jurisdiction to execute the decree against properties situate within its territorial limits. The application for execution made by the decree holder which was numbered 296 of 1931 was, however, on February 27, 1932,dismissed for default and on March 11, 1932, the Asansol Court sent to the High Court what in form purported to be a certificate under section 41 of the Code. There is no dispute, however, that the Asansol Court did not return to the High Court the certified copy ' of the decree and other documents which had been previously transmitted by the High Court The decree holder on November24, 1932 filed in the Asansol Court another petition for 380 execution of the decree against the same judgment debtors with the same prayer for the realisation of the decretal amount by sale of the same properties as mentioned in the previous execution case. The application 'was registered as Execution Case No. 224 of 1932. The judgment debtors ' contention is that the certificate sent by the Asansol Court to the High Court on March 11, 1932, was and was intended to be in form as well as in substance a certificate under section 41 of the Code, and that thereafter the Asansol Court ceased to have jurisdiction as the executing Court and that as there was no fresh transmission of the decree by the High Court the Asansol court could not entertain Execution Case No. 224 of 1932 and consequently all subsequent proceedings in the Asansol Court were void and inoperative for lack of inherent jurisdiction in that Court. This contention was rejected by the Subordinate Judge of, the Asansol Court in his judgment delivered on January 30, 1945, in Miscellaneous Case No. 70 of 1941 but found favour with the High Court in its judgment delivered on February 10, 1950, which is now under appeal before us. It appears that on. March 17,1933, the decreeholder took out a Master 's summons in the Original Side of the High Court being the Court which passed the decree in Suit No. 1518 of 1923 praying, interalia, that the Official Receiver be discharged from further acting as Receiver in execution, that leave be given to the Asansol Court to sell the colliery in execution of the decree dated June 25, 1923, and the order dated February 7, 1924, and that leave be given to the plaintiff to bid for and purchase the Sripur colliery. This summons was supported by an affidavit affirmed by one Pramatha Nath Roy Chowdhury, an assistant in the employ of the plaintiff. This affidavit refers to the consent decree of January 25, 1923, passed in the said suit and the additional terms of settlement embodied in the order of February 7, 1924, the payments made by the judgment debtors from time to time amounting to 381 Rs. 30,437 8 0 besides a sum of Rs. 3,500 which bad been paid on account of settled costs and states that, the balance of the decretal amount was still due and that there had been no other adjustment of the decree. It refers to a previous application by tabular statement for execution of the decree by the appointment of a Receiver and by the sale of the Sripur colliery which was charged under the order of February 7, 1924, and to the order made by the High ' Court on that tabular statement on June 21, 1926, appointing the Official Receiver of the High Court as Receiver of the Sripur colliery. The affidavit then recites that the Official Receiver who had been given liberty to sell the colliery on certain terms took steps to put up the same to sale but had been prevented from actually doing so by reason of an injunction obtained by one of the judgment debtors Benoy Krishna Mukherjee in Suit No. 843 of 1928 filed by him. The affidavit further refers to the fact that the said Suit No. 843 of 1928 had since then been dismissed and that no appeal had been preferred against that decree of dismissal and that no order had been made for stay of execution of the said decree. Paragraph 13 of the affidavit then states as follows : " that the plaintiff was advised that charge should be enforced and Sripur colliery should be sold in execution of the said order by the Asansol Court in the local jurisdiction of which the colliery is situate and the plaintiff accordingly by an order made on the 15th of April, 1931, obtained leave of the Court to execute the decree against Basantidas Chatterjee, Srimantodas Chatterjee and Bholanath Chatterjee as sons, heirs and legal representatives of the deceased Prankristo Chatterjee and the other defendants judgment debtors and caused the certified copies of the decree dated 25th June, 1923, and the order dated 7th February, 1924, to be transmitted to the District Judge at Burdwan who in his turn sent the decree to the Subordinate Judge of Asansol to execute the decree. Such execution proceedings are 382 now pending before the Asansol Subordinate Judge 's Court being Execution Proceedings No.224 of 1932. " In the circumstances the plaintiffs asked for directions on the lines mentioned in the summons. The summons was duly served on all the judgment debtors as mentioned in the affidavit of service filed in Court and referred to in the order made by the Court on the Master 's summons on March 27, 1933. The operative part of the said order of the High Court was as follows: " It is ordered that Official Receiver of this Court who was appointed the Receiver in this suit of the Sripur colliery pursuant to the said order dated the 21st day of June, 1926, be and he is hereby discharged from further acting as such Receiver as aforesaid: And it is further ordered that the said Receiver do pass his final accounts before one of the Judges of this Court and it is further ordered that the Subordinate Judge of Asansol be at liberty in execution of the said decree and order dated the 7th day of February, 1924, to sell either by public auction or by private treaty to the best purchaser or purchasers that can be got for the same provided the said Subordinate Judge shall consider that a sufficient sum has been offered the Sripur colliery aforesaid charged under the said order dated the 7th day of February, 1924 And it is further ordered that the plaintiff be at liberty to bid for and purchase the said colliery at the said sale and if declared the purchaser to set off the amount of the purchase money pro tanto against the balance of his claim under the said decree: And it is further ordered that the plaintiff be also at liberty to add his costs of and incidental to this application to be taxed by the Taxing Officer of this Court to his claim under the said decree. " The order sheet of Execution Case No. 224 of 1932 has not been printed in extenso but there can be no doubt that this order of the High Court was communicated to the Asansol Court, for it was after this order 383 that the Asansol Court proceeded with the execution 2case and sripur colliery was sold for the first time on June 9, 1933, and the decree holder purchased the same for Rs. 20,000. This sale of course was eventually set aside, but this order made by the High Court on the Original Side being the Court which passed the decree in Suit No. 1518 of 1923 appears to me to involve and imply, and may well be regarded as in substance amounting to, an order for transmission of the decree to the Asansol Court for execution under section 39 of the Code of Civil Procedure. The Civil Procedure Code does not prescribe arty particular form for an application for transmission of a decree under section 39. Under sub section (2) of that section the Court can even suo motu send the decree for ,execution to another Court. It is true that Order XXI, rule 6, provides that the Court sending a decree for execution shall send a copy of the decree, a% certifi cate setting forth that satisfaction of the decree hid not been obtained by execution within the jurisdiction of the Court and a copy of the order for the execution of the decree but there is authority to the effect that an omission to send a copy of the decree or an omission to transmit to the ' Court executing the decree the certificate referred to in clause (b) does not prevent the decree holder from applying for execution to the Court to which the decree has been transmitted. Such omission does not amount to a material irregularity within the meaning of Order XXI, rule 90, and as such cannot be made a ground for setting aside a sale in execution. Further, the fact remains that the certified copy of the decree and the certificate of non satisfaction which had been sent by the High Court 2to the Asansol Court on April 15, 1931, through the District Judge of Burdwan who forwarded the same to the Subordinate Judge at Asansol were still lying on the records of that Court and the sending of another certified copy of the decree and a fresh certificate of non satisfaction by the High Court would have been nothing more than a formality. In the circumstances, the omission to send those documents 384 over again to the Asansol Court was a mere irregularity which did not affect the question of jurisdiction of the executing Court. In my opinion, after the order made by the High Court on March 27, 1933, had been communicated to the Asansol Court the Asansol. Court became fully seized of jurisdiction as the executing Court and none of the proceedings had thereafter in that Court can be questioned for lack of inherent jurisdiction. I would, therefore, on this ground alone accept this appeal and concur in the order proposed by my learned brother. GHULAM HASAN J. This case is illustrative of the difficulties which a decree holder has to encounter in recovering the money in execution after he has obtained the decree of court. It is one of those cases, by no means rare, in which the execution proceedings in the courts below have dragged on to inordinate lengths and led to consequent waste of public time and expense to the parties. The decree in the present case was passed upon a compromise in Suit No. 1518 of 1923 on the original :side of the Calcutta High Court as long ago as June 25, 1923, in favour of one Nagarmull Rajghoria against Pran Krishna Chatterjee and 5 others, hereinafter referred to as the Chatterjees. The decree was for a sum of Rs. 75,000 with interest at twelve per cent. per annum with quarterly rests. The Chatterjees hypothecated their Kbradauga colliery as security for the payment of the decretal amount. Subsequent to this decree the Chatterjees entered into an agreement ,With one Benoy Krishna Mukherjee hereinafter referred to as Mukherjee on January 24, 1924, appointing the latter as Managing Agent of the aforesaid colliery whereby he became entitled to receive royalty of another colliery called Sripur colliery. The decree was adjusted on March 18, 1924, by making Mukherjee liable as surety and by the Chatterjees charging their Sripur colliery as additional security. The hypothecated properties were situate at Asansol and 50 385 Nagarmull obtained an order from the High Court for permission to execute the decree at Asansol with the direction that a certified copy of the decree, a copy of the order of transmission and a certificate of partial satisfaction of the decree should be transferred to the court of the Subordinate Judge at Asansol. ' This order was passed on April 15, 1931, and the three documents aforementioned were sent to the transferee court at Asansol through the District Judge, Burdwan on June 12, 1931. (Order XXI, rule 6, Civil Procedure code.) On August 20, 1931, Nagarmull filed his first appli cation for execution of the decree by sale of Sripur colliery. The execution case is numbered as 296 of 1931. Notices under Order XXI, rule 22, rule 64 and rule 66, of the Civil Procedure Code were issued and served on various dates. The case was fixed for February 16, '1932. On this date Nagarmull applied for time to prove service of the notices and the case was adjourned to February 23 1932. He again applied for time on that date and the case was adjourned to February 27, 1932. On this latter date Nagarmull was again not ready and asked for more time. But this was refused, and the execution case was dismissed for default without any amount being realized under the decree. The transferee court sent to the High Court what purported to be a certificate under section 41 of the Civil Procedure Code, stating that the execution case was dismissed for default on February 27, 1932. Neither the copy of the decree, nor any covering letter as required by the rules of the High Court was sent along with the certificate. The certificate was received by the High Court on March 11, 1932. It appears that the decree holder filed a second application for execution of the decree on November 24, 1932, by sale of the Sripur colliery. This case was numbered as Execution Case 224 of 1932. Notices under Order XXI, rule 22 and rule 66, 'of the Civil Procedure Code were duly served and the executing court ordered the issue of a sale proclamation fixing April 8, 1933, as the date of the sale, It 386 appears that the decree holder received only partial satisfaction of the decree out of the sale proceeds of Koradanga colliery which had been sold at the instance of the superior landlords and by certain cash payments. He applied for execution of the decree by appointment of a Receiver and by sale of the Sripur colliery. The Receiver was appointed on June 21, 1926, and he was directed to sell the Sripur colliery to the highest bidder permitting the decree holder at the same time to bid for and purchase the property, but he was restrained from proceeding with the sale by an order of court passed in a certain suit filed by Mukherjeo against the decree holder. This suit was dismissed by the High Court. Accordingly the. decree holder applied on March 17, 1933, to the High Court praying that the Receiver be discharged and leave be given to the executing court to sell the Sripur colliery in execution of the decree of June 25, 1923, in which Execution Proceedings No. 224 of 1 932 were pending at the time. He also asked: that leave be given to him to bid for and to, purchase the property. Notices of this application were duly served on the parties and on March 27, 1933, the High Court granted all the , prayers (Exhibit F. 5). The property was sold on the 9th of June, 1933, and was purchased by the decree holder for Rs. 20,000. Mukherjee, however, filed an application on July 7, 1933, under section 47 and Order XXI, rule 90, of the Civil Procedure Code for setting aside the sale. The application was numbered as Miscellaneous ,Case No. 63 of 1933. The Chatterjees also started two Miscellaneous Cases Nos. 64 and 55 of 1933 on July 8, 1933. During the pendency of the three miscellaneous cases, the appellant Mohanlal Goenka purchased the decree on January 10, 1934. Miscellaneous Case No. 53 of 1933 was allowed and the sale was set aside on January 29, 1934, and Cases Nos. 54 and 55 of 1933 were dismissed for default. The result of these miscellaneous cases was communicated to the High Court in a document which purports to be a certificate under section 41 of the 387 Civil Procedure Code and wag received on February 1, 1934. Two appeals were preferred by the decreeholder on April 18, 1934, but the order setting aside the gale was confirmed and resale of the Sripur properties was ordered by the High Court. The properties were again sold on April 22, 1936, and were purchased by the decree holder for Rs. 12,000. Mukherjee filed an appeal in the High Court and during the pendency of the appeal he filed an application under section 47 and Order XXI, rule 90 of the Civil Procedure Code for setting aside the sale. The appeal was disposed of by consent of parties and it was agreed that the application under Order XXI, rule 90, be heard by the executing court. Accordingly the application was heard and the sale set aside. Mukherjee then applied under section 47 on April 4, 1938, stating that Mohanlal Goenka could not continue the proceedings started by Nagarmull, but the application was dismissed and May 22, 1938, was fixed for the sale of the property,. He filed an appeal in the High Court which was dismissed under Order XLI, rule II, of the Civil Procedure Code. The property was sold for the third time and was purchased by the decree holder for Rs. 2,60,000 on May 27, 1938. Mukherjee applied under section 47 and Order XXI, rule 90, of the Civil Procedure Code for setting aside this sale on June 27, 1938 : (E 4) (Miscellaneous Case No. ' 76 of 1938). The application was dismissed on June 30, 1938, and the sale was confirmed. Execution Case No. 224 of 1932 was dismissed for part satisfaction. The executing court on July 9, 1938, sent to the High Court a certificate under section 41 of the Civil Procedure Code, accompanied with the covering letter communicating the result of the execution case. This was received by the High Court on July 12, 1938. Mukherjee carried the matter in appeal to the High Court but the appeal was dismissed on August 5, 1940: (Exhibit F). Mukherjee filed an application for review under Order XLVII, rule 1, of the Civil Procedure Code against. the aforesaid order on November 25, 1940, 388 (Exhibit B). He also. filed on November 28, 1940,7 an application for leave to appeal to the Privy Council (Exhibit A). The review application was dismissed on May 8,1941, and leave was refused on June 16, 1941. On May 12, 1941, Mukherjee filed an application under sections 47 and 151 of the Civil Procedure Code (Miscellaneous Case No. 70 of 1941) and it is this application which has given rise to the present appeal before us. The application was supported by an affidavit filed on may 26, 1941. The present appellant filed an objection on July 5, 1941, to the, application. The application was dismissed by the Subordinate Judge on January 30, 1945 but the order was set aside on appeal by the High Court on February 10, 1950. Leave to appeal to this Court was granted by the ' High Court on July 28, 1950. The case put forward by Mukherjee before the Subordinate Judge was that after the dismissal of Execution: Case No. 296 of 1931 on Februarv 27. 1932, and the sending of a certificate under section 41 to the High Court, the decree was never again transferred to the Asansol court for execution. According to him, the decree holder fraudulently detached the certificate of non satisfaction from the Execution Case No. 296 of 1931 and attached it to the second Execution Case No. 224 of 1932, inducing the court to believe that the certificate had been obtained from the High Court for taking fresh proceedings in execution, Mukherjee had instituted Title Suit No. ' 3 of 1936 to recover some money and to enforce a charge against the Sripur colliery and for, permission to redeem the charge declared in favour of the decree holder if it was prior to his own claim ' The suit was dismissed but on appeal the High Court, allowed him to redeem the charge in favour of the decree holder. In order to ascertain the amount of the charge Mukherjee instructed his attorney to search the record of Suit No. 1518 of of 1923 and he came to know for the first time on August 23, 1940, that after the dismissal of 'the first 389 application & certifioate under section 41 of the Civil Procedure Code had been sent by the Asansol Court to the High Court and the, latter never retransferred the decree for execution. Accordingly his case was that the Asansol Court had no jurisdiction to entertain Execution Case No. 224 of 1932, and all, the proceedings in connection therewith were null and void. , He therefore urged that the auction sale should be set aside. The present appellant denied the allegations of the judgment debtor. He pleaded that no certificate under section 41 of the Civil Procedure Code was sent to the High Court in Execution Case No. 296 of 1931 and the execution court retained jurisdiction throughout, that the High Court had authorised the sale of the property in execution of the decree and that no fresh certificate of non satisfaction was required to give jurisdiction to the Asansol Court to proceed with Execution Case No. 224 of 1932. The judgment debtor was aware that the copy of the decree and the certificate of non satisfaotion were not sent to the High Court and he could not possibly have laboured under a wrong impression that a fresh certificate had been ,sent by the High Court for taking execution prooeedings and that the decree holder practised no fraud upon him. He also pleaded that the application was barred, by limitation, that it was barred by the principle of res judicata as the objection now raised had previously been made and either not pressed, or rejected and that the judgment debtor was fully aware of all the proceedings that had taken place in connection with the decree. The Subordinate Judge framed the following three main issues in the case: 1. Is this Miscellaneous Case maintainable under section 151 of the Civil Procedure Code? 2.Did this court act in accordance with section 41, Civil Procedure Code ? If so, was the decree retransmitted to this court for fresh execution in 1932 ? If not, had this court jurisdiction to execute the decree again in 1932 ? 390 3. Is this Miscellaneous Case barred according to the principle of res judicata ? Upon the first point the learned Subordinate Judge held that the executing court did not lose jurisdiction to execute the decree, that the allegation about the detaching of certificate of non satisfaction from the records in the custody of the court and its surreptitious insertion in Execution Case No. 224 of 1932 constitute grounds for a suit, and a fresh application under section 151 of the Civil Procedure Code, was not maintainable. Upon the second point the court held that having regard to the circumstances of the case, no certificate of non satisfaction of the decree as required by section 41 was sent by the executing court to the High Court, that no re transmission of the decree by the High Court was required to start Execution Case No. 224 of 1932 and that the executing court retained seisin of the execution and, could execute the same without a further direction from the High Court. Upon the third point, the learned Subordinate Judge held that Mukherjee had alleged in para. 15 of his petition in Miscellaneous Case No. 53 of 1933 that the decree and the certificate were not sent by the High Court for starting the execution case afresh, but this objection to jurisdiction was not pressed at the time of the hearing. Again in para. 20 of his petition in Miscellaneous; ,Case No. 76 of 1938 he had urged the same point but ,it was not pressed. Mukherjee admitted in his evidence as P. W. 4 that all his applications were drawn up according to his instructions but despite this fact he did not press the allegations made in the miscellaneous cases. It was accordingly held on the authority of Annada Kumar Roy and Another vs Sheik Madan and Others (1) and Mahadeo Prasad Bhagat vs Bhagwat Narain Singh (2) that the principle of constructive resjudicata is applicable to execution proceedings. The view taken by the Court was that having made the allegations in the miscellaneous oases and then abandoned them, the judgment debtor (1) (2) A.I.R. 1938 Patna 427. 391 was precluded from raising the plea of jurisdiction of the court to execute the decree: Mukherjee preferred an appeal to the High Court. The matter came up before Harries C. J. and Sarkar J. The learned Chief Justice held that the Asansol Court not only sent what purported to be a certificate under section 41 of the Civil Procedure Code to the High Court, but intended such certificate to be a certificate of non satisfaction. He did not agree with the Subordinate Judge that the document was not intended to be a certificate and was merely an intimation that the first attempt at execution ' had failed. In the view of the learned Chief Justice there was no need for the Court at Asansol to send any intimation at all. The learned Chief Justice agreed that upon a true construction of section 41, failure to execute the decree at the first attempt for non appearance of the decree holder was not the total failure to, execute the decree as contemplated in that section. He, however, held that the fact that the certificate was sent when it should not have been sent cannot affect the question if, as he held, the certificate was intended to be a certificate of non satisfaction. The learned Chief Justice referred to a number of authorities in support of his conclusion. He accordingly held that the Asansol Court had ceased to have jurisdiction to execute the decree and was not entitled to entertain the second application for execution. Upon the question of res judicata the learned Chief Justice observed that " a judgment delivered by a Court not competent to deliver it cannot operate as res judicata and the order of the Subordinate Judge of Asansol, being wholly without jurisdiction, cannot be relied upon to found a defence upon the principle of res judicata. " He went on to say: "It is true that the appellant could and should have raised the question in the second execution case that the Asansol Court had no jurisdiction ' in the absence of a certificate of non satisfaction from the High Court to entertain the application. But in my view though this, point was neither made nor pressed, these orders of the learned 392 Subordinate Judge in the second execution application cannot be urged as a bar to the present application under the doctrine of res judicata. It is true that section 11 of the Code of Civil Procedure does not apply to execution proceedings, but it has been held by their Lordships of the Privy Council that the principles of the law relating to resjudicata do apply to execution proceedings and Mr. Atul Gupta has urged that the present application is barred by res judicata. . . He drew a ' distinction between the case of an irregular assumption of jurisdiction and want of inherent jurisdiction and holding that the order of the Subordinate Judge at Asansol fell under the latter category, he came to the conclusion that the order is wholly null and void and cannot be pleaded in bar of the application on the principle of res judicata. It has been contended before us on behalf of the appellant (assignee decree holder) that the execution Court at Asansol never lost jurisdiction over the execution proceedings and that what purported to be a certificate under section 41 of the Civil Procedure Code was no more than a mere intimation to the High Court that the execution case had been dismissed only for default, that it was no failure to execute the decree within the meaning of section 41 of the Civil Procedure Code, that in any case the subsequent orders of the High Court passed from time to time in the presence of the parties conferred jurisdiction upon the execution Court to proceed with the execution and that in any event the question whether the execution Court had or had not jurisdiction to execute the decree was barred by the principle of res judicata. Having heard learned counsel for the parties, we are of opinion that the appeal can be dis posed of on the ground of res judicata without entering into other questions. It cannot be disputed that the transferee Court was invested with jurisdiction by the High Court when its decree was transferred to it for execution. The first application for execution of the decree was dismissed 393 for default on February 27, 1932, and a document purporting to be a certificate of non satisfaction under section 41 of the Civil Procedure Code was sent by the execution Court to the High Court. The decree was admittedly not retransmitted for execution by the High Court. Despite this fact the decreeholder made a second application for execution on November 24, 1932, (Execution Case No. 224 of 1932). Notice was duly served upon the judgmentdebtor but he preferred no objection before the execution Court that it had no jurisdiction to execute the decree. This is the first occasion on, which he could have raised the plea of jurisdiction. The second occasion arose when the decree holder filed an affidavit (Exhibit C) before the High Court on March 17, 1933, praying that certain directions should be given to the execution Court for the sale of Sripur properties and for an order discharging the Receiver. Notice was duly served upon the judgment debtors, including Mukherjee (Exhibit 13) and the order granting the prayers of the decree holder was passed on March 27, 1933 (Exhibit F. 5). The judgmentdebtor could have pointed out that the Asansol Court was functus officio after sending the certificate under section 41 and had no further jurisdiction to sell the property in execution but no such objection was raised. This order clearly recites that notice was sent to the Chatterjees as well as to Mukherjee and was proved by an affidavit to have been duly served upon them. The decree holder 's prayer was granted and in pursuance of the order of the High Court the property was sold and was purchased by the decreeholder for Rs. 20,000, whereupon Mukherjee started Miscellaneous Case No. 53 of 1933 for setting aside the sale. In this application (Exhibit E) the judgment debtor raised the question of jurisdiction in paragraph 19 which runs thus: " As the said decree has not been sent to this court for execution nor has any certificate come to this Court therefore the execution proceedings and the auction sale are wholly irregular, illegal, fraudulent and collusive. " 394 The order of the Subordinate Judge dated January 29, 1934, by which he set aside the sale does not mention that the plea raised in paragraph 19 of the application was pressed. The decree holder who was aggrieved by this order preferred two appeals Nos. 254 and 255 of 1934. The order of the High Court (Exhibit F. 2) dated July 11, 1935, shows that the decision of the Subordinate Judge setting aside the sale was confirmed. It appears that the judgmentdebtors had raised the question that the decree could not be executed 'without the decree holder applying for making the decree absolute. In view of this dispute the learned Judges added in the order that although they were confirming the order of the Subordinate Judge setting aside the sale, the judgment debtors will not be entitled to raise any objection as to the nature of the decree which in their opinion was executable under the terms of the compromise arrived at by the parties concerned. Here again no objection was raised by the judgment debtors that the execution Court had no jurisdiction to execute the decree and sell the property. The next occasion when the objection to jurisdiction should have been raised was when the property was to be resold. Mukherjee started Miscellaneous Case No. 62 of 1936 on April 2, 1936, (Exhibit 1), in which he raised all sorts of objections to the execution but nowhere stated that the execution Court had no jurisdiction to sell the property after the certificate under section 41 of the Civil Procedure Code had been sent to the High Court. The property was sold for the second time and was purchased by the decreeholder on April 22, 1936. Mukherjee preferred an appeal No. 238 of 1936 and at the same time started a Miscellaneous Case No. 80 of 1936 in the execution. Court to set aside the sale. No plea of jurisdiction was raised either in the grounds of appeal to the High Court or in the application f or setting aside the execution sale. The appeal was disposed of by consent of parties with the direction that Miscellaneous Case No. 80 of 1936 should be reheard by the 395 execution Court. The sale was set aside on rehearing. Mukherjee then started Miscellaneous Case No, 40 of 1938 under section 47 of the Civil Procedure Code on April 4, 1938. The objection of lack of jurisdiction in the execution Court was again missing in this application. The application was dismissed and the appeal against it was also dismissed on May 25, 1938. When a the property was sold for the third time, Mukherjee started Miscellaneous Case No. 76 of 1938 on June 27, 1938, for setting aside the sale (Exhibit E. 4). In paragraph 20 of his application he stated: "That this court has no jurisdiction to entertain this application for execution without a fresh certificate (sic) the court passing the decree under executions The previous certificate creating jurisdiction in the present court has long expired after the dismissal of the previous execution case. The whole proceeding and the sale thereunder is not only illegal and materially irregular but is absolutely void for want of jurisdiction. " This plea was apparently not pressed and the Miscellaneous Case was dismissed on June 30, 1938. Mukherjee filed an appeal F. M. A. No. 262 of 1938 (Exhibit F.) on August 23, 1938, but the appeal was dismissed on August 5, 1940, on the ground, that there was no material irregularity in publishing the sale and the colliery had not been sold at an inadequate price on ' account of any such irregularity. This again shows that no question of jurisdiction was raised before the learned Judges of the High Court. Then followed the review application (Exhibit B) presented on November 25, 1940, to the High Court. Paragraphs 11, 12 and 13 of this application are important and they run as follows " 11. That after passing the '. judgment in F.A. No.246 of 1937 on 13th August, 1940,your petitioner got the records of Suit No. 1518 of 1923 of the Original Side of this Hon 'ble Court searched for ascertaining the amount due under the decree of the said 396 suit and came to, know for the first time on 23rd August, 1940, that after dismissal of the old Execution Case No. 296 of 1931 by the Subordinate Judge of Asansol on 27th February, 1932, the result of the said execution case was sent to the Original Side of this Hon 'ble Court under section 41, Civil Procedure Code, and that was received on 11th March, 1932, and that no fresh , certificate of non satisfaction of the decree was sent by the Original Side of this Hon 'ble Court for fresh execution and so there was no basis on which the Execution Case No. 224 of 1932 could be started in the Court of the Subordinate Judge of Asansol. That your petitioner submits that the copies of the decree and certificate of non satisfaction were taken by the decree holder on detaching the same from the records of old used Execution Case No. 296 of 1931 and fraudulently used afterwards in Execution Case No. 224 of 1932 by practising fraud upon the Court. That your petitioner further begs to submit that he was misled by order of the Court of the Subordinate Judge which runs as follows: S 'Register. Let the certificate of non satisfaction received be annexed to the record. ' " This application was rejected on May 8, 1941, and the order of the learned Judges which is brief may be reproduced in full: "The ground for review is that after the dismissal of the said appeal the petitioner discovered that the execution proceedings in which the sale took place was held by the executing Court although that Court did not receive any certificate of non satisfaction from the Court which passed the decree under execution. This objection does not properly come for investigation in a proceeding under Order XXI, rule 90, Civil Procedure Code. Even if the allegation of the petitioner about the discovery of new matter is correct, it cannot affect the decision of the appeal which we have dismissed. " 397 The foregoing narrative of the various stages through which the execution proceedings passed from time to time will show that neither at the time when the execution application was made and a notice served upon the judgment debtor, nor in the applications for setting aside the two sales made by him did the judgment debtor raise any objection to execution being proceeded with on the ground that the execution Court had no jurisdiction to execute the decree. The failure to raise such an objection which went to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructiveres judicata after the property has been sold to the auction purchaser who has entered into possession. There ate two occasions on which the judgment debtor raised the question of, jurisdiction for the first time. He did not, however, press it with the result that the objection must be taken to have been impliedly overruled. One such occasion was when the property was sold for the second time and was purchased by the decree holder for Rs. 20,000. In paragraph 19 of his application dated July 7, I 933 (Exhibit E) to set aside the sale he challenged the jurisdiction of the Court, but the order of the Court dated the 29th January, 1934, does not show that the plea was persisted in. The second occasion was when the property was sold for the third time and in his application (Exhibit E.4) dated June 27, 1938, for setting aside the sale he raised the question in paragraph 20. The objection application was dismissed but there is no trace of the judgment debtor having pressed this objection. When he preferred an appeal to the High Court, he did not make the plea of jurisdiction a ground of attack against the execution of the decree and the appeal was dismissed on other points. Finally he filed a review application and in paragraphs 11, 12 and 13 he raised the objection to execution in more elaborate words, but the application was rejected by the High Court on the ground that such an objection did not fall within the purview of Order XXI, rule 90, of the Code of Civil Procedure 398 This order therefore became final. The judgmentdebtor admitted that the two applications (Exhibits E and E. 4) were prepared according to his instructions. It is not possible therefore for the judgmentdebtor to escape the effect of the above orders which became binding upon him. That the principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt. See Annada Kumar Boy and Another vs Sheik Madan and Others (1), and Mahadeo Prasad Bhagat vs Bhagwat Narain Singh(2). In the first case an application was made by a certain person for execution of a decree and no objection was raised that the decree was not maintainable at the instance of the applicant and the application was held to be maintainable. It was held that no further objection on the score, of the maintainability of a fresh application for execution on the part of the same applicant could be raised. In the second case a money decree had been obtained on the foot of a loan which was the subject matter of a mortgage and the property was sold in execution. The judgment debtor raised the question of the validity of the execution proceedings and objected that the execution court had no jurisdiction to sell the property in execution of a money decree as no sanction of the Commissioner had been obtained under section 12 A,Chota Nagpur Encumbered Estates Act. The objection was not decided but the objection petition was dismissed with the result that the property came into the possession of the auction purchaser. In an action for a declaration that the sale to the purchaser was void for want of sanction of the Commissioner it was held that as the point was raised although not decided in the objection petition under section 47, it was res judicata by reason of Explanation IV to section 11. The Privy Council as early as 1883 in Ram Kirpal Shukul vs Mussamat Rup Kuari(3) held that the decision (1) (3) (1884) 11 I. A. 37. (2) A.I. R. 1938 Patna 428. 399 of an execution Court that the decree on a true construction awarded future mesne profits was binding between the parties and could not in a later stage of the execution proceedings be set aside. Their Lordships ruled that the binding force of such a decision depends upon general principles of law and not upon section 13, Act X of 1877, corresponding to section 11 of the present Code. In that case the Subordinate Judge and the District Judge had both held that the decree awarded mesne profits, but their decision was reversed by the Calcutta High Court. The Full Bench of that Court also held that the law of res judicata did not apply to proceedings in execution of the decree. This decision was reversed in appeal by the Privy Council. At page 43, Sir Barnes Peacock, who delivered the judgment of the Board, observed "The High Court assumed jurisdiction to decide that the decree did not award mesne profits, but, whether their construction was right or wrong, they erred in deciding that it did not, because the parties were bound by the decision of Mr. Probyn, who, whether right or wrong, had decided that it did; a decision which, not having been appealed, was final and binding upon the parties and those claiming under them. " In Raja of Bamnad vs Velusami Tevar and Others(1) an assignee of a partially executed decree applied to the Subordinate Judge to be brought on the record in place of the decree holder. The judgment debtor denied the assignment and the liability of certain properties to attachment and alleged that the right to execute the decree was barred by limitation. The Subordinate Judge recognized the assignment, allowed the assignee to execute the decree and gave his permission to file a fresh application for attachment. This order was not appealed against. In the final proceedings. The Subordinate Judge permitted to judgment debtors to raise again the plea of limitation. In the course of the judgment Lord Moulton observed as follows: (1) (1921) 48 I.A.145, 52 400 "Their Lordships are of opinion that it was not open to the learned Judge to admit this plea. The, order of December 13, 1915, is a positive order that the present respondent should be allowed to execute the decree. To that order the plea of limitation, if pleaded, would according to the res pondents ' case have been a complete answer, and therefore it must be taken that a decision was against the respondents on the plea. No appeal was brought against that order, and therefore it stands as binding between the parties. Their Lordships are of opinion that it is not necessary for them to decide whether or not the plea would have succeeded. It was not only competent to the present respondents to bring the plea forward on that occasion but it was incumbent on them to do so if they proposed to rely on it,, and moreover it was in fact brought forward and decided upon. " Sha Shivraj Gopalji vs Edappakth Ayissa Bi and Others (1) : In this case the decree holder in t e earlier execution proceedings could have raised a plea that the judgment debtor had an interest in certain property which could be attached under his decree but the plea was not raised through his own default and the execution was dismissed. It was held under such circumstances that the dismissal operates as res judicata in the subsequent execution proceedings and even apart from the provisions of section 11 of the Civil Procedure Code, it is contrary to principle to allow the decree bolder in fresh proceedings to renew the same claim merely because he neglected at a proper stage in previous proceedings to support his claim by the argument of which he subsequently wishes to avail himself. There is ample authority for the proposition that even an erroneous decision on a question of law operates as resjudicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution (1) A.I.R. 1949 P.C. 302; 54 C.W.N, 54. 401 case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties; see Abhoy Kanta Gohain vs Gopinath Deb Goswami and Others(1). The learned Chief Justice concedes that the principle of res judicata applies to the execution proceedings but he refused to apply it to the present case on the ground that there was lack of inherent jurisdiction in the execution Court to proceed with the execution. He relied upon Ledgard and Another vs Bull (2). This case is distinguishable upon the facts. This was a suit instituted before the Subordinate Judge for infringement of certain exclusive rights secured to the plaintiff by three Indian patents. Under the Patents Act the suit could be brought only before the District Judge. The defendant raised an objection to the jurisdiction of the Court. It appears that , subsequently the defendant joined the plaintiff in petitioning the District Judge to transfer the case to his own Court. This was done. The suit was transferred under section 25 of the Civil Procedure Code. It was admitted that the suit could not be transferred unless the Court from which the transfer was sought to be made had jurisdiction to try it. The defendant adhered to the plea of jurisdiction throughout the proceedings but it was urged that by his subsequent conduct he had waived the objection to the irregularity in the institution of the suit. Their Lordships held that although a defendant may be barred by his own conduct from ' objecting to the irregularity in the institution of the suit, yet where the Judge had no inherent jurisdiction over the subject matter of the suit, the parties cannot by their mutual consent convert it into a proper judicial process. This decision has no bearing upon the present case as no question of constructive res judicata arose in that case. The cases of Gurdeo Singh V. Chandrika Singh and Chandrikah Singh vs Rashbehary Singh (3) and (1) A.I.R. 1943 Cal. 460. (2) (1886) 13 I.A. 134. (3) Cal. 402 Rajlakshmi Dasee vs Katyayani Dasee (1) are both dis tinguishable as they did not involve any question of constructive res judicata. Two cases of the Allahabad High Court (1) Lakhmichand and Others vs Madho Rao (2), (2) Baghubir Saran and Another vs Hori Lal and Another (3) were also relied upon in the judgment under appeal. , The first was a case of the grant of assignment of the, land revenue of a village in favour of the grantee. He mortgaged it and a suit brought on foot of the mortgage was decreed. In a subsequent suit for a declaration that the previous decree of the Court was null and void by reason of the fact that the suit was not cognisable in the absence of a certificate from the Collector as required by the Pensions ' Act authorizing the trial of such a suit, it was held that the decree was one without jurisdiction and that it did not operate as res judicata in the subsequent suit for which the certificate was obtained. It was obvious that the statutory provisions of the Act forbade the trial of any suit without the certificate of the Collector. There was, therefore, an initial lack of jurisdiction to try the case and the case is inapplicable to the facts of the present case. The second case which involved the question of territorial jurisdiction was in our view not correctly decided. There a suit against a minor for enforcement of the mortgage was decreed in respect of property which was beyond the territorial jurisdiction of the Court passing the decree. When the decree was transferred for execution to the Court within whose jurisdiction the property was situate, it was objected that the decree was a nullity. The objection was overruled and the objector was referred to file a regular suit. In the regular suit filed by him it was decided that an independent suit was maintainable for avoiding the decree although no objection was raised to jurisdiction in the Court passing the decree. It was also held that the bar of section 11, Explanation IV, of (1) Cal. 639 (2) (1030) I. L.R. 52 All. 868. (3) All. 403 the Code of Civil Procedure did not apply to the case. We think that although section 21 of the Code of Civil Procedure did not apply in terms to the case, there is no reason why the principle underlying that section should not apply even to a regular suit. The objection to jurisdiction must be deemed to have been waived and there was no question of inherent lack of jurisdiction in the case. The suit was clearly barred by the principle of res judicata and was wrongly decided. The question which arises in the present case is not whether the execution Court at Asansol had or had not jurisdiction to entertain the execution application after it had sent the certificate under section 41 but whether the judgment debtor is precluded by the principle of constructive resjudicata from raising the question of jurisdiction. We accordingly hold that the view taken by the High Court on the question of res judicata is not correct. We allow the appeal, set aside the judgment and the decree,of the High Court and restore that of the Subordinate Judge dismissing the application of the judgment debtor. The appellant will be entitled to his costs here and hitherto. Appeal allowed. Agent for the appellant ': P. K. Chatterjee. Agent for the respondent No. 1: B. B. Biswas.

A decree passed by the Calcutta High Court on its Original Side in 1923, was transferred by that Court for execution to the Court of the Subordinate Judge of Asansol in 1931 with a certified of the decree, copy of, the order of transmission and certificate of partial satisfaction. The decree holder applied for execution to the Asansol Court but the application was dismissed for default in February,, 1932, and the Asansol Court sent to the Calcutta High Court what purported to be a certificate under section 41, Civil Procedure Code, stating that the execution case was dismissed for default, but neither the copy of the decree nor a covering letter was sent to the High Court. The decree holder again applied for execution in November, 1932, and a certain colliery was proclaimed for sale on April 3, 1933. Meanwhile, other application of the decree holder, the High Court passed an order on March 27, 1933, discharging a Receiver who had been appointed in 1926 and granting liberty to the Court of Asansol to sell the colliery in execution by public auction. After this order was communicated to the Asansol Court, it sold the colliery in auction. The sale was set aside and the colliery was resold. Again the sale was set aside and after the property was sold for the third time the judgment debtor applied under section 47 and 0. XXI, r. 90, Civil Procedure Code, for setting aside the sale on the ground that after the dis missal of the execution case in February, 1932, and the transmission of a certificate under section 41 to the High Court, the Asansol Court had no jurisdiction to execute the decree. Held per DAS J. The order of the High Court dated March 27, 1933, may well be regarded as in substance &mounting to,an order of transmission of the decree to the Asansol Court for execution under section 39, Civil Procedure Code, and after the order had been communicated to the Asansol ' Court, the latter became fully seized of jurisdiction as the executing Court. The omission to send 378 a copy and a fresh certificate of non satisfaction was a mere irregularity which did not affect the jurisdiction of the Asansol Court: Per GHULAM HASAN J. As the judgment debtor did not raise the present objection either when the decree holder made a second application for execution to the Asansol Court in November, 1932, or when the decree holder applied to the High Court in March, 1933, for giving liberty to the Asansol Court to proceed with the execution by sale of the colliery, or in the proceedings for setting aside the sales of the colliery in 1936 or in the appeals therefrom though several other objections were raised, and on one or two occasions when he did raise it, he never pressed the objection, he was precluded from raising the plea at a later stage on the principle of constructive res judicata. The mere fact that the question related to the jurisdiction of the Court would not prevent the operation of the rule of res judicata. MAHAJAN and VIVIAN BOSE JJ. On either of the grounds stated by DAS J. and GHULAM HASAN J., the judgment debtor was precluded from raising the objection that the Court of Asansol had no jurisdiction to execute the decree. Ledgard and Another vs Bull ([1886] 13 I.A. 134), Gurdeo Singh vs Chandrika Singh ([1909] I.L.R. , Rajlakshmi Dasi vs Katyayannee ([1911] I.L.R. and Lakhmichand and others vs Madho Rao ([1930] I.L.R. 52 All. 868)distinguished. Raghubir Saran vs Horilal and Another ([1931] I.L.R. 53 All. 560) overruled. Annada Kumar Boy and Another vs Sheik Madan and Others , Mahadeo Prasad Bhagat vs Bhagwat Narain Singh (A.I.R. 1938 Pat. 428), Bam Kirpal Sukul vs Mussamat Rup Kueri ([1884] 11 I.A. 37), Raja of Ramnad vs Veluswami Tevar and Others ([1921]48 I.A. 45) and Sha Shivraj Gopalji vs Edappakath Ayissa Bi and Others (A.I.R. referred to.

The petitioners were convicted under section 302 read with section 34 I.P.C. and were sentenced to death on November 26, 1977. The High Court upheld the conviction and sentence on July 18, 1978. The petitioners ' Special Leave Petition against the judgment of the High Court was dismissed on March 5, 1979 and the Review Petition against the dismissal of the Special Leave Petition was also dismissed on March 27, 1981. The petitioners ' successive writ petitions challenging the validity of sections 302 and 34 I.P.C. were dismissed on January 20, 1981 and August 24, 1981 respectively. The present writ petitions were filed on March 2, 1983 on the basis of the decision in T.V. Vatheeswaran vs State of Tamil Nadu which was rendered on February 16, 1983. The contention on behalf of the petitioners was that more than two years had elapsed since they were sentenced to death by the trial court and therefore they were entitled in terms of the ruling in vatheeswaran to demand that the said sentence should be quashed and substituted by the sentence of life imprisonment. ^ HELD : Prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed. But no hard and fast rule that "delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke article 21 and demand the quashing of the sentence of death" can be laid down as has been done in Vatheeswaran. [594 E F] (i) No absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the 583 sentence must be substituted by the sentence of life imprisonment. There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated. A convict is entitled to pursue all remedies lawfully open to him and get rid of the sentence of death imposed upon him and his taking recourse to them to ask for the commutation of his sentence even after it is finally confirmed by this Court is understandable. But, it is, at least, relevant to consider whether the delay in the execution of the death sentence is attributable to the fact that he has resorted to a series of untenable proceedings which have the effect of defeating the ends of justice. It is not uncommon that a series of review petitions and writ petitions are filed in this Court to challenge judgments and orders which have assumed finality, without any seeming justification. Stay orders are obtained in those proceedings and then, at the end of it all, comes the argument that there has been prolonged delay in implementing the judgment or order. The Court called upon to vacate a death sentence on the ground of delay caused in executing that sentence must find why the delay was caused and who is responsible for it. If this is not done, the law laid down by this Court will become an object of ridicule by permitting a person to defeat it by resorting to frivolous proceedings in order to delay its implementation. Further, the nature of the offence, the diverse circumstances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition if the death sentence is vacated, re matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed. The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years ' formula as a matter of "quod erat demonstrandum." [595 D H; 596 AE] T.V. Vatheeswaran vs State of Tamil Nadu. overruled. (ii) The period of two years purports to have been fixed in Vatheeswaran after making "all reasonable allowance for the time necessary for appeal and consideration of reprieve. " It is not possible to agree with this part of the judgment in that case. The fixation of the time limit of two years does not accord with the common experience of the time normally consumed by the litigative process and the proceedings before the executive. A period far exceeding two years is generally taken by the High Court and this Court together for the disposal of matters involving even the death sentence. Very often four or five years elapse between the imposition of death sentence by the Sessions Court and the disposal of the Special Leave Petition or an Appeal by this Court in that matter. This is apart from the time which the President or the Governor, as the case may be, takes to consider petitions filed under article 72 or article 161 of the Constitution or the time which the Government takes to dispose of application filed under sections 432 and 433 of the Code of Criminal Procedure. [594 F H; 595 AC] (iii) Piare Dusadh is not an authority for the proposition that if a certain number of years have passed since the imposition of a death sentence, 584 that sentence must necessarily be commuted to life imprisonment. In that case the Federal Court commuted the sentence of death to sentence of transportation for life for reasons other than that a long delay had intervened after the death sentence was imposed. In Ediga Anamma, Piare Dusadh was regarded as a leading case on the point. In the other judgments of this Court referred to in Vatheeswaran, this Court was hearing appeals against judgments of High Courts confirming the sentence of death. However, the Court has not taken the narrow view that the jurisdiction to interfere with a death sentence can be exercised only in an appeal against the judgment of conviction and sentence. In very recent times, the sentence of death has been commuted to life imprisonment by this Court in quite a few cases for the reason, inter alia, that the prisoner was under the spectre of the sentence of death for an unduly long time after the final confirmation of that sentence. [589 B D H; 590 A D] Piare Dusadh, [1944] F.C.R. Vol.6 61; Ediga Anamma; , ; Sunil Batra vs Delhi Administration, ; ; Maneka Gandhi [1978] 2 S.C.R. 621; Bachan Singh, , Hussainara Khatoon; , ; Hoskot; , ; Bhuvan Mohan Patnaik; , ; and Prabhakar Pandurang Sangzgiri; , referred to. (iv) Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the imposition of that sentence and its execution. The essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable. It is well established that a prisoner cannot be tortured or subjected to unfair or inhuman treatment. It is a logical extension of the self same principle that the death sentence, even if justifiably imposed, cannot be executed if supervening events make its execution harsh, unjust or unfair. A prisoner who has experienced living death for years on end is entitled to invoke the jurisdiction of this Court for examining the question whether, after all the agony and torment he has been subjected to, it is just and fair to allow the sentence of death to be executed. That is the true implication of article 21 of the Constitution. [593 B G] Bhuvan Mohan Patnaik; , ; Prabhakar Pandurang Sangzgiri; , ; and Sunil Batra vs Delhi Administration; , referred to. (v) Traditionally, subsequent events are taken into account in the area of civil law. There is no reason why they should not receive due consideration in other jurisdictions, particularly when their relevance on the implementation or execution of judicial verdicts is undeniable. Principles analogous to res judicata govern all judicial proceedings but when new situations emerge, particularly factual, after a verdict has assumed finality in the course of the hierarchical process, advertence to those situations is not barred on the ground that a final decision has been rendered already. That final decision is not a decision on new facts. Courts are never powerless to do justice, that 585 is to say, to ensure that the processes of law do not result in undue misery, suffering or hardship. That is why, even after the final seal of approval is placed upon a sentence of death, this Court has exercised its power to direct, ex debito justiciae, that though the sentence was justified when passed, its execution, in the circumstances of the case, is not justified by reason of the unduly long time which has elapsed since the confirmation of that sentence by this Court. [590 E H] In the instant case, the sentence of death imposed upon the petitioners by the Sessions Court and which was upheld by the High Court and this Court cannot be vacated merely for the reason that there has been a long delay in the execution of that sentence. Counsel for the petitioners have been asked to argue upon the reasons why, apart from the delay caused in executing the death sentence, it would be unjust and unfair to execute that sentence at this point of time. The question will be decided after hearing the parties. [596 G H; 597 A B] 2. Petitions filed under articles 72 and 161 of the Constitution and under sections 432 and 433, Cr. P.C. must be disposed of expeditiously. A self imposed rule should be followed by the executive authorities that every such petition shall be disposed of within a period of three months from the date on which it is received. [597 C]

The appellants, one a Sub Divisional Officer and the other a Naib Tehsildar, were entrusted with the duty of allotting land to displaced persons. The first respondent forcibly occupied the land allotted to B. On May 9, 1958, the first appellant ordered that B and other allottees similarly situated would be given possession of lands allotted to them on May 20, 1958. On May 16, 1958. the first respondent and others threatened with dispossession filed petitions in the High Court under article 226 of the constitution and obtained interim stay of delivery of possession till May 19, 1958, when the petitions would come up before the Division Bench for admission. On May 19, 1958, the Division Bench extended the operation of the stay order until May 23, 1958. The notice of the first stay order reached the appellants on May 19, 1958, but no notice of the second order was officially communicated to them till May 21, 1958. It was alleged that on May 20, 1938, the appellants, although informed of the second stay order by certain interested persons and the Advocate for one of the parties, formally dispossessed the respondent in disobedience of the Court 's order and handed over possession of the land to B. On the complaint of the respondent the High Court field that the .appellants were guilty of contempt of Court and, instead of committing them for contempt, administrated a warning as the appellants honestly believed that they were not bound to stay delivery of possession in absence of an official communication. The appellants appealed by special leave. Held, (per Das and Subba Rao, JJ.)that in a case of contempt for disobedience of a prohibitive order, as distinguished from an order of affirmative nature, it was not necessary to show that notice of the prohibitory order was served upon the party against whom it was granted. It would be sufficient if it was proved that the party had notice of it aliunde. N.Baksi vs O. K. (Thosh, A. T. R. (19.)7) Patn. 528, referred to. 128 There may be circumstances where officials entrusted with the carrying out of a legal order might have valid reasons to doubt The authenticity of the order conveyed to them by interested parties. But in the present case there could hardly be any such reasons. The appellants had really no justification for doubting the authenticity of an order communicated to them by an Advocate. Held, further. that in a matter relating to contempt of court, there cannot be both justification and apology. shareef vs The Hon 'ble Judges of the High Court of Nagpur; , , referred to. Although the appellants might have honestly believed that they were not bound to bold their band in absence of an official communication, that would be no defence to the charge of contempt of court, but only a relevant consideration in awarding the sentence. Per Daval, J. Contempt proceedings are criminal or quasi criminal in nature and it is essential that before any action can be taken the accusation must be specified in character. In the instant case, the respondent did not state that he was formally dispossessed. This would 'be for some reason if actual posssssion had been delivered. He could not be said to have come to court with clean hands. Further, the finding of the High Court that the appellants delivered possession honestly believing that they were not bound not to do so in the absence or the official communication meant that there was no defiance of the High Court 's order. There could be no willful disobedience since there was no belief in the existence of the order. It may not be necessary that the party against whom a prohibitory order was made must be served with the order, but it should have notice of the order before it could be expected to obey. Such notice must be from sources connected with the court passing the order. The alleged knowledge of the party cannot be made, to depend on the veracity of the witnesses examined by the party praying for action. In re Bryant L.R (1987 6) In Ex Parte Langly, Exparte Smith. In re Bishop L. R. and The Seraglio. L. R. , discussed.

Civil Appeal Nos. 931 of 1977 and 200 of 1978 relate to the same dispute though arose from, two suits and separate judgements. Civil Appeal No. 931 of 1977 arose out of the suit for possession by the Gram Panchayat against the descendants of the grantee of inam. The suit was dismissed by the Trial Court and was confirmed by the High Court and the High Court granted leave under Art.133. Civil Appeal No. 200 of 1978 arose out of the suit for possession and mesne profits which was laid by the descendants of the grantee of inam. The pleadings are the same in both cases. A Zamindar granted 100 acres of land inam to dig, preserve 532 and maintain a tank in favour of the predecessors of the respondents of C.A. No. 931/77. In 1700 A.D.i.e. , 1190 Fasli, the tank was dug by the villagers and ever since, the villagers were using the tank for their drinking purpose and perfected their right by prescription. In course of time the tank was silted up and fresh water existed only in and around 30 acres. The grantee 's descendants respondents did not make any repairs, Grass and trees had been grown in the rest of the area and was being enjoyed. Under section 3 of the A.P.Inams ( Abolition and Conversion into Ryotwari) Act, ( Act XXXVII of 1956) Ryotwari Patta was granted to the respondents in individuals capacity and on appeal the Revenue Divisional Officer confirmed the same and it became final, as it was not challenged any further. On 7.7.1965, the Gram panchayat the appellant in C.A. No. 931/77 took unilateral possession of the tank and ever since , it was exercising possession, supervision and control over it. After the expiry of three year from the date of dispossession, the respoondents filed a suit for possession based on title. Earlier thereto the appellant Gram Panchayat had filed a suit for possession. The Trial Court found that the tank was a 'public trust ', the appellants would be hereditary trustees and could be removed only by taking action under section 77 of the A.P. Hindu Charitable and Religious Institutions and Endowments Act, 1966 and that the respondents had acquired title by adverse possession. Accordingly the suit for possession was decreed relegating the filing of separate application for mesne profit. On appeal, the High Court reversed the decree and held that the tank was a public tank, and the tank and the lands stood vested in the Gram Panchyat under A.P. Gram Panchayat Act,1964. Since, the Gram Panchayat was in possession from July 7, 1966, though dispossessed the respondents forcibly and as the suit was not under section 6 of the , but one based on title, it called for interference and dismissed the suit. This court granted leave to appeal under article 136. 533 The respondents in C.A. No. 931/77 (the appellants in C.A. No. 200/78) contended that in view of the entries of the Inam Fair Register, the tank was a public trust and not a public tank; they could not be dispossessed until recourse made under section 77 of the A.P. Charitable and Religious Institutions and Endowments Act; that under the Gram Panchayat Act, the lands did not vest in the gram Panchayat; and that since the grant of ryotwari patta under the Inams Act had become final, section 14, thereof barred the jurisdiction of the Civil Court to entertain the suit. The appellant Gram Panchayat in C.A. No. 931/77 (the respondents in C.A. No. 200/78) contended that the tank and the appurtenant land was correctly held as public tank by the High Court that by operation of sections 85 and 64 of the Gram Panchayat Act, the land and the tank stood vested in the Panchayat, that the entries in the Inam Fair Register established that the grant of land was for preservation, maintenance and repairs of the tank and therefore, the grant should be in favour of the institution, i. e., the tank and the respondents thereby did not acquire any title, that ryotwari patta was only for the purpose of land revenue; that the Gram Panchayat acquired absolute right, title and interest in the land; and the suit was not a bar in the facts of the case. Dismissing both appeals, this Court HELD: 1.01. Any property or income, which belongs to or has been administered for the benefit of the villagers in common or the holders in any of the village land generally or of land of a particular description or of lands under particular source of irrigation shall vest in Gram Panchayat and be administered by it for the benefit of the villagers or holders. The lands or income used for communal purpose shall either belong to the Gram Panchayat or has been administered by the Gram Panchayat. It is not the case of the Gram Panchayat nor any finding recorded by the courts below to that effect. section 64 is not attracted though the villagers acquired prescriptive right to use the water from the tank for their use and of their cattle. [554D F] 1.02. All public water courses, springs, reservoirs, tanks, cisterns, etc. and other water works either existing on the date of the Act or made thereafter by the Gram Panchayat, or otherwise including those used by the public ripened into prescriptive right for the use and benefit of the public and also adjacent or any appurtenant land not being private property shall vest in the Gram Panchayat under section 85(1) and be subject to its control. [554F G] 534 2.01. The word`vesting ' in section 85 would signify that the water courses and tanks, lands etc. used by the public to such an extent as to give a prescripvtive right to their use, are vested in the Gram Panchayat, and placed them under the control and supervision of the Gram Panchayat. It confers no absolute or full title. It was open to the Government, even after vesting, to place restriction upon the Gram Panchayat in the matter of enjoyment and use of such tanks, and appurtenant lands etc. The assumption of management by the Government would be subject to the prescriptive right of the villagers, if any. The vesting of the tanks etc. in the Gram Panchayat was with absolute rights and the village community rights would over ride against rights of the Government. [546C F] 2.02. The tank is a public tank and not a public trust and that under section 85(1) and section 64, the vesting of the tanks, the appurtenant land and the common land is only for the purpose of possession, supervision, control and use thereof for the villagers for common use subject to the over riding title by the Government and its assumption of management should be in terms of sub section (3) of section 85 of the Act and subject to the prescriptive right in the water, water spread tank for common use. [547A B] Gram Panchayat, Mandapaka & Ors. V. Distt. Collecctor, Eluru & Ors. , approved. Anna Narasimha Rao & Ors. vs Kurra Venkata Narasayya & Ors., , OVER RULED. 3.01. Under A.P. Land Encroachment Act, 1905; Talengana Area Land Revenue Act, relevant Abolition Acts like A.P. Estates (Abolition and Conversion into Ryotwari) Act, 1948, Inams Abolition Act etc. give absolute rights or vesting in the State over the forest land, tanks, rivers, mines, poramboke, land, etc. free from all encumbrances and the preexisting rights in the other land stood abolished and will be subject to the grant of Ryotwari Patta etc. [546F H] 3.02 Grant of Ryotwari patta is not a title but a right coupled with possession to remain in occupation and enjoyment, subject to payment of the land revenue to the State. [546H] 3.03. The entries in the Inam Fair Register are great acts of the State and coupled with the entries in the survey and settlement record 535 furnishes unimpeachable evidence. On construction of these documents, it would clearly emerge that the original grant was made for the preservation and maintenance of the tank and tax free Inam land was granted for that purpose, though it was in the name of the individual grantee. The grant was for the preservation and maintenance of the tank. [548C D] 3.04. The grant was for the institution. Under section 3 of the Inams Act, the enquiry should be, whether (1) a particular land is Inam land; (2) Inam land in a Ryotwari, Zamindar or Inam Village; and (3) is held by any institution. In view of the finding that the grant was for the preservation and maintenance of tank, the Inam land in an inam village was held by the institution, namely, the tank. Ryotwari patta shall, therefore, be in favour of the institution. Undoubtedly the ryotwari patta was granted in favour of the descendants. [548D F] 3.05. The pattas were obtained in the individuals name, the trustees of an institution cannot derive personal advantage from the administration of the trust property. The grant of patta was for the maintenance of the trust. [548G] 3.06. The descendants, though enjoyed the income from the properties, did not effect the repairs and neglected the maintenance and upkeep of the tank. They rendered the tank disused and abandoned. By operation of section 85 of the Act the lands and tank stood vested in the Gram Panchayat for control, management and supervision. [550E F] 3.07. A hereditary trustee is entitled to be the Chairman of a Board of Trustees, if any, constituted under the Endowment Act or else be in exclusive possession and management of the public trust registered thereunder until he is removed as per the procedure provided therein. Since the tank always remained a public tank and not being a public trust, the Endowment Act does not apply. Therefore, the question of initiating action under section 77 of the Endowment Act for removal of the descendants as trustees does not arise. [550F G] Arunachalam Chetty vs Venkatachalpathi Garu Swamigal, AIR 1919 P.C. 62 at P. 65; Syed Md. Mazaffaral Musavi vs Bibi Jabeda & Ors., AIR 1930 Pc 1031; Bhojraj vs Sita Ram & Ors, AIR 1936 P.C. 60; M. Srinivasacharyulu & Ors. V. Dinawahi Pratyanga Rao & Ors., ; Ravipati Kotayya & Anr. vs Ramaswamy Subbaraydu & Ors., , referred to. 536 K.V. Krishna Rao vs Sub Colletor, Ongole, ; , followed. Nori Venkatarama Dikshitulu & Ors. vs Ravi Venkatappayya & Ors., , approved. Krishan Nair Boppudu Punniah & Ors. vs Sri Lakshmi Narasimhaswamy Varu, ; Bhupathiraju Venkatapathiraju & Ors. V. The President Taluq Board, Narsapur & Ors.; [1913] 19 1.C. 727 (Mad.) (D.B.), distinguished. Tagore Law Lecture, ``Hindu Religious Endowments and Institutions at p. 6, distinguished. In the laws made to restructure the social order creating rights in favour of the citizens and conferring power and jurisdiction on the hierarchy of Tribunals or the authorities constituted thereunder and giving finality to their orders or decisions and divested the jurisdiction of the established civil courts expressly or by necessary implication Departure in the allocation of the judicial functions would not be viewed with disfavor for creating the new forums and entrusting the duties under the statutes to implement socio economic and fiscal laws. Courts have to consider, when questioned, why the legislature made the departure. The reason is obvious. The tradition bound civil courts gripped with rules of pleading and strict rules of evidence and tardy trial, four tier appeals, endless revisions and reviews under C.P.C. are not suited to the needed expeditious dispensation. The adjudicatory system provided in the new forums is cheap and rapid,. The procedure before the Tribunal is simple and not hide bound by the intricate procedure of pleadings, trial, admissibility of the evidence and proof of facts according to law. Therefore, there is abundant flexibility in the discharge of the functions with greater expedition and inexpensiveness. {552D H] 4.02. In order to find out the purpose in creating the Tribunals under the statues and the meaning of particular provisions in social legislation, the Court would adopt the purposive approach to ascertain the socials ends envisaged in the Act, to consider scheme of the Act as an integrated whole and practical means by which it was sought to be effectuated to achieve them. Meticulous lexographic analysis of words and phrases and sentences should be subordinate to this purposive approach. The dynamics of the interpretative functioning of the Court is to reflect the contemporary needs and the prevailing values consistent with the constitutional and legislative declaration of the policy envisa 537 ged in the statute under consideration. [552H 553B] 4.03. The law should, therefore, respond to the clarion call of social imperatives evolve in that process functional approach as means to subserve ``social promises ' ' set out in the Preamble, Directive Principles and the Fundamental Rights of the Constitution. [553d] 4.04. Section 9 of the Civil Procedure Code, 1908 provides that whenever a question arises before the Civil Court whether its jurisdiction is excluded expressly or by necessary implication, the court naturally feels inclined to consider whether remedy afforded by an alternative provision prescribed by special statute is sufficient or adequate. In cases where exclusion of the civil court 's jurisdiction is expressly provided for, the consideration as to the scheme of the statue in question and the adequacy of sufficiency of the remedy provided for by it may be relevant, but cannot be decisive. Where exclusion is pleaded as a matter of necessary implication such consideration would be very important and inconceivable circumstances might become even decisive. [553G 554B] 4.05. The jurisdiction of a Tribunal created under statute may depend upon the fulfilment of some condition precedent or upon existence of some particular fact. Such a fact is collateral to the actual matter which the Tribunal has to try and the determination whether it existed or not is logically temporary prior to the determination of the actual question which the Tribunal has to consider. At the inception of an enquiry by a Tribunal of limited jurisdiction, when a challenge is made to its jurisdiction, the Tribunal has to consider as the collateral fact whether it would act or not and for that purpose to arrive at some decision as to whether it has jurisdiction or not. There may be Tribunal which by virtue of the law constituting it has the power to determine finally, even the preliminary facts on which the further exercise of its jurisdiction depends; but subject to that, the Tribunal cannot by a wrong decision with regard to collateral fact, give itself a jurisdiction which it would not otherwise have except such tribunals of limited jurisdiction when the statue not only empowers to enquire into jurisdictional facts but also the rights and controversy finally it is entitled to enter on the enquiry and reach a decision rightly or wrongly. If it has jurisdiction to do right, it has jurisdiction to do wrong. It may be irregular or illegal which could be corrected in appeal or revision subject to that the order would become final. [554B F] 4.06. The Inams Act did not intend to leave the decisions of the revenue courts under section 3 read with section 7 to retry the issue once over in the civil court. [561D E] 538 4.07. The glimpse of the object of the Inams Act, scheme, scope and operation thereof clearly manifest that Inams Act is a self contained code, expressly provided rights and liabilities; prescribed procedure; remedies; of appeal and revision, excluded the jurisdiction of the civil court, notwithstanding anything contained in any law, given primacy of Inams Act though inconsistent with any law or instrument having force of law. The jurisdictional findings are an integral scheme to grant or refuse ryotwari pattta under section 3, read with section 7 and not collateral findings. It was subject to appeal and revision and certiorari under Art 226. The decision of the Revenue Tribunal, are final and conclusive between the parties or persons claiming right, title or interest through them. The trick of pleadings and the camouflage of the reliefs are not decisive but the substance or the effect on the order of the tribunal under the Inams Act are decisive. The civil suit except on grounds of fraud, misrepresentation or collusion of the parties is not maintainable. The necessary conclusion would be that the civil suit is not maintainable when the decree directly nullifies the ryotwari patta granted under section 3 of the Inams Act. [561E 562A] Deena vs Union of India, [1984] ISCR, referred to. Kamala Mills Ltd. vs State of Bombay, ; ; Secretary of State vs Mask & Co., [1940] L.R. 67 I.A. 222; Raleigh Investment Co. Ltd. V. Governor General in Council, L.R. 74 I.A. 50; Firm and Illuri Subbayya Chetty & Sons vs State of Andhra Pradesh; , ; Deesika Charyulu vs State of A.p., AIR 1964 SC 807; Dhulabhai & Ors vs State of M.P. & Anr., ; ; Hati vs Sunder Singh, ; ; Muddada Chayana vs Karam Narayana and Anr. ; , ; T. Munuswami Naidu vs R. Venkata Reddy, AIR 1978 A.P. 200; O. Chenchulakshmamma & Anr. vs D. Subramanya Reddy; , ; A. Bodayya & Anr. V. L. Ramaswamy(dead) by Lrs., ; Doe vs Bridges, at p. 359; Premier Automobiles Ltd. vs Kamlakar Shantaram Wadke and Ors., ; ; State of Tamil Nadu vs Ramalinga Samigal Madam, ; ; Syamala Rao vs Sri Radhakanthaswami Varu, ; Jyotish Tahakur & Ors. vs Tarakant Jha & Ors., [1963] Suppl. 1 SCR 13; Sri Athmanathaswami Devasthanam vs K. Gopalaswami Aiyangar, {1964] 3 SCR 763; Sri VEdagiri Lakshmi Narasimha Swami Temple vs Induru Pattabhirami Reddy, ; ; Shree Raja Kandragula Srinivasa Jagannadha Rao Panthulu Bahadur Garu vs State of Andhra Pradesh, ; ; Dr. Rajendra Prakash Sharma vs Gyan Chandra & Ors., ; ; Anne Basant National Girls High School vs Dy. 539 Director of Public Instruction & Ors., ; Raja Ram Kumar Bhargava (dead) by Lrs. vs Union of India, [1988] 2 SCR 352; Pabbojan Tea Co., Ltd., etc. vs the Dy. Commissioner, Lakhimpur, etc. ; , and K. Chintamani Dora & Ors. vs G. Annamnaidu & Ors., ; , distinguished. D.V. Raju vs B.G. Rao & Anr., , approved. P.pedagovindayy vs Subba Rao, , over ruled. The word `vest ' clothes varied colours from the context and situation in which the word came to be used in a statue of rule. [545B C] 5.02. The word [vest '], means, to give an immediate, fixed right of present or future enjoyment, to accrue to, to be fixed, to take effect, to clothe with possession, to deliver full possession of land or of an estate, to give seisin to enfeoff. [545C D] 5.03. The word, `vest ', in the absence of a context, is usually taken to mean, `vest ' in interest rather than vest in possesion '.[545E F] 5.04. `Vest '. ``generally means to give the property in ' '. [545E F] 5.05. The word, `vested ' was defined, `as to the interest acquired by public bodies, created for a particular purpose, in works, such as embankments, whcih are `vested ' in them by statute. ' {545D E] 5.06. ``Vesting ' ' in the legal sense means, to settle, secure, or put in fixed right of possession; to endow, to descend, devolve or to take effect, as a right '. [545C] Chamber 's Mid Century Dictionary at P. 1230; Blacks Law Dictionary, 5th Edition at P. 1401; Stroud 's Judicial Dictionary, 4th Edition Vol, 5 at P. 2938, Item 12, at P 2940, Item 4 at P. 2939; Port of London Authority vs Canvey Island Commissioners, {1932] 1 Ch. 446; Fruit and Vegetable Merchants Union vs Delhi Improvement Trust, ; , referred to. Under the Gram Panchayat Act the statutory interposition of vesting the tank and the appurtenant land in the Gram Panchayat made it to retain possession, control and supervision over it, though the Gram Panchayat unlawfully took possession. The need to grant decree for possession in favour of the Gram Panchayat is thus redundant. The suit 540 of the descendants normally to be decreed on the finding that ryotwari patta under section 3 of the Inams Act was granted in their favour and that they were unlawfully dispossessed. Since the grant of ryotwari patta, though in the name of individuals, was to maintain the public tank whcih stood vested under section 85 of the Act in the Gram panchayat, the descendants are divested of the right and interest acquired therein. Thus the suit of the descendants also is liable to be dismissed. [562A C]

N owned agricultural lands in Bahawalpur State now forming part of Pakistan and also owned some property in Punjab in India. He died in June 1947 while on a visit to India in the normal course of business, leaving behind three sons, the respondents in the appeal. On the partition of India, the land in Pakistan originally owned by N and after his death by his sons, had to be abandoned. After migrating to India, the three respondents filed separate claims as displaced persons and were allotted an area of land in Punjab. Thereafter a complaint was filed before the Managing Officer that these respondents had received double allotments. The Managing Officer, held this allegation was not substantiated but came to the conclusion that N, although he had died before the partition, must be treated as a displaced land holder for the purpose of allotment of land as his name continued to be shown in the Jamabandi as the owner of the abandoned land in Pakistan. In consequence of this finding a large portion of the land allotted to the three respondents was cancelled by an order of the Managing Officer dated September 18, 1961. Appeals made by the respondents to the Assistant Settlement Commissioner as well as revision petitions before the Chief Settlement Commissioner Punjab, were dismissed. In dismissing the revision petitions, the Chief Settlement Commissioner relied on para. 17 of "Tarlok Singh 's Land Resettlement Manual" 1952 edition Page 180, to the effect that "Even where a displaced land holder in whose name the land stands in the records received from West Punjab has died, the allotment is made in the name of the deceased". He therefore upheld the view 4 at the land could only be allotted in the name of N. The respondents then filed a writ petition against the orders of the Chief Settlement Commissioner which was allowed. On appeal to this Court, HELD:Dismissing the appeal, The definition of a "displaced person" in para 2(e) of the Notification of July 8, 1949, issued by the Custodian in accordance with provisions of the East Punjab Evacuees (Administration of Property) Act 1947, and the Rules made thereunder, or of a "Refugee" in Section 2(d) of the East Punjab Refugees (Registration of Land Claims) Act 12 of 656 1948, show that these expressions have been used in the relevant enactments with reference to a person who has migrated to India as a result of disturbances or fear of disturbances or the partition of the country. Therefore if a person had died before the disturbances took place or he had never migrated to India as a result of the disturbances and he died before such migration, he could not come within the meaning of the expression "displaced person" or the word "refugee" under the relevant statutory enactments. N died in June, 1947, long before the partition of the country and he did not abandon or was not made to abandon his land in Bahawalpur on account of the civil disturbances or the fear of such disturbances or the partition of the country. [660 A D] There was no force in the contention that even though N never became a refugee or a displaced land holder, the allotment had to be made in his name because he was shown in the revenue records received from West Punjab as the owner of the land and there had been no mutation of the names of the respondents in the revenue records. The rule in para 17 of "Tarlok Singh 's Manual" consistently with the statutory enactments, would be applicable only to such persons who were land holders 'it the time of their becoming displaced persons or refugees and who died afterwards before allotment could be made in their favour. It does not apply to a person like N who was not a displaced land holder at the time of his death. [661 D F]

By a notification under section 4 of the West Bengal Land Deve lopment and Planning Act, 1948, the Government declared that certain plots of land belonging to the respondent were needed for the settlement of immigrants from East Pakistan and for improving living conditions in the locality. Thereafter a second notification was issued by the Government under section 6 read with section 7 of the Act declaring that the plots covered by the previous notification were needed for the same purpose as stated therein. When the Government started to erect structures on the land thus acquired the respondent moved the High Court under article 226 of the Constitution challenging the vires of the Act and impugning the legality of the proceedings taken under tile Act. The petition was heard by a judge of the High Court sitting singly who negatived all the contentions of the petitioner and discharged the rule. On appeal by the respondent under the Letters Patent, a Division Bench of the High Court held that the Act did not infringe the provisions of articles 19(i)(f) and 31(2) of the Constitution. The High Court further held that it was incumbent on the State Government to frame a development scheme after possession of the land had been taken even though the Government was entitled to deal with the land on an emergency basis under section 7 of the Act, which runs thus: " In cases of urgency, if in respect of any notified area the State Government is satisfied that the preparation of a development scheme is likely to be delayed, the State Government may, at any time, make a declaration under section 6, in respect of such notified area or any part thereof though no development scheme has either been prepared or sanctioned under section 5 ". The High Court allowed the respondent 's appeal and directed a writ of mandamus to issue to the Government requiring them to proceed to frame a development scheme in terms of the Act. On appeal by the State of West Bengal on a certificate granted by the High Court, 369 Held, that the High Court was in error in issuing the mandamus against the appellants. Section 7 of the Act com pletely dispensed with the statutory necessity of preparing a scheme of development as envisaged in section 5 of the Act in cases where the Government had taken the decision that it was necessary to proceed further with the acquisition proceedings without waiting for a development scheme. No discrimination was implicit in the provisions of section 7 of the Act and no fundamental right of the appellant was infringed either under article 14 or articles 19(1)(f) and 31(2) of the Constitution.

The first respondent B purchased a Touzi in 24 Parganas Collectorate at a revenue sale held on 9th January, 1942. As such purchaser he acquired under section 37 of the Bengal Revenue Sales Act, 1859, the right "to avoid and annul all under tenures and forthwith to eject all under tenants" with certain exceptions which are not material here. In exercise of that right he gave notices of ejectment and brought a suit in 1946 to evict certain under tenants including the second respondent herein and to recover possession of the lands. The suit was decreed against the second respondent who preferred an appeal to the District Judge, 24 Parganas, contending that his under tenure came within one of the exceptions referred to in section 37. When the appeal was pending, the Bill which was later passed as the West Bengal Revenue Sales (West Bengal Amendment) Act, 1950, was introduced in the West Bengal Legislative ASsembly on 23rd March, 1950. It would appear, according to the "statement of objects and reasons" annexed to the Bill, that great hardship was being caused to a large section of the people by the application of section 37 of the Bengal Land Revenue Sales Act, 1859, in the urban areas and particularly in Calcutta and its suburbs where "the present phenomenal increase in land values has supplied the necessary incentive to speculative purchasers in exploiting this provision (section. 37) o/the law for unwarranted large scale eviction" and it was, therefore, considered necessary to enlarge the scope of protection already given by the section to certain categories of ,tenants with due safeguards for the security of Government revenue. The Bill was eventually passed as the amending Act and it came into force on 15th March, 1950. It substituted by section '4 the new section 37in place of the original section 37 and it provided by section 7 that all pending suits, appeals and other proceedings which had not already resulted in delivery of possession, shall abate. Thereupon B contending that section 7 was void 588 as abridging his fundamental rights under article 19(1)(f) and article 31 . moved the High Court under article 228 to withdraw the pending appeal and to determine the constitutional issue raised by him. The appeal was accordingly withdrawn and the case was heard by Trevor Harries C.J and Banerjee J. who, by separate but concurring Judgments, declared section 7 unconstitutional and void. They held that B 's right to annul under tenures and evict undertenants being a vested right acquired by him under his purchase before section 37 was amended, the retrospective deprivation of that right by section 7 of the amending Act without any abatement of the price paid by him at the revenue sale was an infringement of his fundamental right under article 19 (1)(f) to hold property with all the rights acquired under his purchase, and as such deprivation was not a reasonable restriction on the exercise of his vested right, section 7 was not saved by cl. (5) of that article and was void. The State of West Bengal preferred the present appeal to the Supreme Court: Held, per PATANJALl SASTRI C.J. Article 19 (1) (f) has no application to this case. The word "hold" in the article means own. The said sub clause (f) gives the citizen of India the abstract right to acquire, own and dispose of property. This article does not deal with the concrete fights of the citizens of India in respect of the property so acquired and owned by him. These concrete rights are dealt with in article 31 of the Constitution. Under the scheme of the Constitution all those broad and basic freedoms inherent in the status of a citizen as a free man are embodied and protected from invasion by the State under cl. (1)of article 19, the powers of State regulation of those freedoms in public interest being defined in relation to each of those freedoms by cls. (2) to (6) of that article, while rights of private property are separately dealt with and their protection provided for in article 31, the cases where social control and regulation could extend to the deprivation of such rights being indicated in para. (ii) of sub clause (b) of cl. (5) of article 31 and exempted. from liability to pay compensation under cl. Held, per PATANJALI SASTRI C.J. (MEHR CHAND MAHAJAN ' and GHULAM HASAN JJ. concurring) (i) Article 31 protects the right to property by defining the limitations on the power of the State to take away private property without the consent of the owner. Clauses (1) and (2) of article 31 are not mutually exclusive in scope and content, but should be read together and understood as dealing with the same subject, namely the protection of the right to property by means of limitations on the State 's power referred to above, the deprivation contemplated in clause (1) being no other than the acquisition or taking possession of the property referred to in cl. The words "taking of . . possession or . . acquisition" in article 31(2) and ' the words "acquisition or requisitioning" in entry 589 No. 33 of List I and entry No. 36 of List II as also the words "acquired or requisitioned" in entry No. 42 of List III are different expressions connoting the same idea and instances of different kinds of deprivation of property within the meaning of article 31(1) of the Constitution. No cut and dried test can be formulated as to whether in a given case the owner is "deprived" of his property within the meaning of article 31; each case must be decided as it arises on its own facts. Broadly speaking it may be said that an abridgement would be so substantial as to amount to a deprivation with in the meaning of article 31, .if, in effect, it withheld the property from the possession and enjoyment of the owner, or seriously impaired its use and enjoyment by him or materially reduced its value . The expression "taking possession" in art 31(2) of the Constitution can only mean such possession as the property taken possession of is susceptible to and need not be actual physical possession. ' (ii) It is difficult to hold that the abridgement sought to be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of article 31(1) and (2). No question accordingly arises as to the applicability of el. 5(b)(ii) of article 31 to the Per DAs J. (1) The abridgement of the rights of the purchaser at a revenue sale brought about by the new section 37 amounts to nothing more than the imposition of a reasonable restriction on the exercise of the right conferred by article 19(1)(f)in the interests of the general public and is perfectly legitimate and permissible under cl. (5) of that article. It is well settled that the statement of objects and reasons is not admissible as an aid to the construction of a statute but it can be referred to only for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill .to introduce the same and the extent and urgency of the. evil which he. sought to remedy. Those are matters which must enter into the judicial verdict as to the reasonableness of the restrictions which article 19(5) permits to be imposed on the exercise of the right guaranteed by article 19(1)(f). (II) The correlation between article 19(1)(f) and article 31 is that if a person loses his property by reason of its having been compulsorily acquired under article 31 he loses his right to hold that property and Cannot complain that .his fundamental right under article 19(1)(f)has been infringed. The rights enumerated in article 19(1) subsist while the citizen has the legal capacity to exercise them. A.K. Gopalan 's case ; and Chiranjit Lal 's case ; referred to. 590 For the purpose of this appeal the. matter proceeds on the footing that article 19 relates to abstract right as well as to right to concrete property. (III) The true scope and effect of cls. (1) and (2) of article 31 is that cl. (1) deals with deprivation of property in exercise of police power and enunciates the restrictions which our Constitution makers thought necessary or sufficient tO be placed on the exercise of that power, namely, that such power can be exercised only by authority of law and not by a mere executive fiat and that cl. (2)deals with the exercise of the power of eminent domain and places limitations on the exercise of that power. These limitations constitute our fundamental rights ' against the State 's power of eminent domain. (IV) Both these clauses cannot be regarded as concerned only with the State 's power of eminent domain, because then (a) cl (1) would be wholly redundant, for the necessity of a law is quite clearly implicit in cl. (2) itself; (b) deprivation of property otherwise than by taking of possession ' or acquisition of it will be outside. the pale of constitutional protection: (c) there will beno protection against the exercise of police power in respectOf property either by the executive or by the legislature. Chiranjit Lals case ; and The Bihar Zamindari case referred to. (V) The State 's police power is not confined (a) within the ambit of article 19 forto say otherwise ,will mean: (i) that there is no protection for any person, citizen or non citizen, against exercise of police power by the executive over property; (ii) that although in cls. (2) to (6) there is protection against ' (iei) legislature in respect of "restriction" there is no protection against "deprivation"; or (h) within d. (5) (b) of article 31 because to say otherwise will mean :__ (i) that the police power which is inherent in sovereignty and does not require express reservation has been unnecessarily defined and reserved; (ii) that the Constitution does not prescribe any test for the 'validity of the laws which fail within the clause and, therefore, the law failing within the clause may be as archaic, offensive and . unreasonable as the legislature may choose to make it; (iii) that the clause gives no protection against the executive; (iv) that the exercise of the police power by the legislature is confined within ' the very narrow and inelastic limits of the clause and that no beneficial or social legislation involving taking 591 of property can be undertaken by the State if the law falls outside the clause except on terms of payment of compensation; (v) that acqUiSition Of property for which compensation is Usually provided, e.g.; acquisition of land for a public park, hospital Or z 'dearing a slum area will henceforth be permissible without the law providing any compensation; (VI) The argument that if article 31(1) is read as a fundamental right against deprivation of property by the executive and article, 31(2) as laying down the Iimits of State 's power of eminent domain then there will be no real protection. whatever, for the State will deprive a person of his property without compensation by simply making a law is not tenable because (i) there will certainly be protection against the execute just as the 29th clause of the Magna Charts was a protection against the British Crown; (ii)" 'there is protection under article 31(2) against the legislature in the matter of taking of possession Or. acquisition for compensations to be given and under cl. (5) of art, 19 against unreasonable ' restraint: (iii) the absence of protection against the legislature in other cases is not greater than the absence of protection against the legislature in respect of taxation and if the legislature can be trusted in the latter case it may equally he ' trusted in the former case. (VII) Every taking of a thing into the custody of the State or its nominee does not necessarily mean the taking of possession Of that thing within the meaning of art 31(2) so as to call for compensation. The police power is exercised in the interest of the community and the power of eminent domain is exercised to . implement a public purpose and in both cases there is a taking of possession of private, property There is however a marked difference between the exercise of these two sovereign powers. It is easy to perceive, though somewhat difficult to express, the .distinction between the two kinds of taking of possession which undoubtedly exists. In view of the wide sweep of the State 's police power it is neither desirable nor possible to lay down a fixed general test for determining whether the taking of possession authorised by any particular. law falls within one category or the other. Without, therefore, attempting any such 'general enunciation of any inflexible rule it is possible to say broadly that the aim, purpose and the effect of the two kinds of taking of possession are different and that . in each "case the provisions of. the particular law in question" will have to 'be carefully scrutinised in order to determine in which category ' falls the taking of possession authorised by such law. = A consideration of the ultimate aim, the immediate purpose ::and the mode and manner of the taking 'of possession and, the duration". 'for which such possession . is taken, the effect of ' it ' on the rights of 'the person dispossessed and other such like elements must all determine the judicial verdict. 592 (VIII) Treating the right to annul under tenures and to eject under tenants .and decree for ejectment as "property" as used in article 31(2) the State has not acquired those rights for there has been no transfer by agreement or by operation of law of those rights from the respondent B to the State or anybody else. The purchase being at a Revenue sale to. which West Bengal Act VII of 1950 applies, the purchaser of the property has been deprived of this right by authority of law and the case falls within cl. (1) of article 31 and no Within cl. (2) of article 31. If the impugned section is regarded as imposing restrictions on the purchaser, such restrictions in the circumstances of the case are quite reasonable and permissible under article 19(5) and, in the premises, the _plea of unconstitutionality cannot prevail and must be rejected. Pet ' JAGANNADHADAS J. (i) On the assumption that the question raised in this case is one that arisesunder article 19(1)(f)and (5) of the Constitution, the impugned section of the West Bengal Act VII of 1950 is intra vires because the restrictions are reasonable within the meaning of article 19(5) of the Constitution; (ii) that article 19(1)(f) while probably meant to relate tot he natural rights of the citizens comprehends within the scope also concrete property rights. The restrictions on the exercise of rights envisaged in article 19(5) appear to relate normally, if not invariably to concrete property rights; (iii) that cl. (1).of article 31 cannot be construed as being either a declaration or implied recognition of the American doctrine of "police power". It comprehends within its scope the requirement of the authority of law, as distinguished from executive fiat for the exercise of the power of eminent domain, but its scope may well be wider. "Acquisition" and "taking possession" in article 31(2) cannot be taken as necessarily involving transfer of tide or possession. The words or phrases comprehend all cases where the title or possession is taken out of the owner and appropriated without his consent by transfer or extinction or by some other process, which in substance amounts to it, the possession in this context meaning such possession as the nature of the property admits and which the law recognizes as possession. (iv) In the context of article 31(2) as in the cognate context article 19(1)(f) the connotation of the word "property"is limited by the accompanying words "acquisition" and "taking possession". In the present. case the right to annul under tenures cannot in itself be treated as property for it is not capable of independent acquisition or possession. The deprivation of it can only amount to a restriction on the exercise of the fights as regards the main property itself and hence must fall under article 19(1)(f) taken with 19(5). Butchers Union etc. Co. vs Crescent City etc. Co.; , , Punjab Province vs Daulat Singh and Others ([1946] F.C.R. 1), Chiranjit Lal Chauduri vs The Union of India and Others ([1950] S.C.R. 869), A.K. Gopalan vs The State of Madras ([1950] S.C.R. 88), P.D. Shamdasani vs Central Bank of India ([1952] S.C.R. 391), Ministry of State. for the Army vs Dalziel ; , Pennsylvania Coal Co. vs Mahou , Dwarkadas Shrinivas vs Sholapur Spinning and Weaving Mills Ltd. ([1954] S.C.R. 674), ' State of Madras vs V.G. Row ([1952] S.C.R. 597), Ram Singh vs The State of Madras ([1951] S.C.R. 451), State of Bihar vs Maharajadhiraja Kameshwar Singh of Darbhanga ([1952] S.C.R. 889), Noble State Bank vs Haskeli ; , Eubank vs Richmond (226 U.S. 137), Ioseph Hurtado V. People of California (1883) (10 U.S. 516), referred to.

Respondent No. 1 acquired tenancy rights in five plots in the villages of Biknaur and Samahuta situated in the area known as Lower Murli Hill in District Shahabad, Bihar. In 1949 he filed a plaint in the Court of the Subordinate Judge Sasaram, against the State of Bihar and others, claiming inter alia that as a tenant he had a customary right to quarry limestone for trade purposes from the Lower Murli Hill. The claim was based mainly on certain entries in the Custom sheets prepared at the time of the Cadastral Survey in 1913 under section 102 of the Bihar Tenancy Act, 1885. The trial court rejected the claim but the High Court held the custom to be established by the evidence of the Customs sheets. The defendants appealed. Held The High Court was in error in holding that the plain tiff had established the custom pleaded by him or that it was reasonable. (i) There was nothing to show that the practices and privileges recorded in the Custom Sheets were exercised as a matter of right. The record has presumptive value. But the revenue authorities were concerned to ascertain the existing state of affairs and not to determine whether the practices and privileges were ancient, certain, reasonable and continuous. As evidence of local custom, the custom sheets had therefore not much value. On the other hand there were indications that the exercise of the privileges recorded therein was permissive. Even on the most liberal interpretation they did not provide evidence of the exercise of the privilege of commercial exploitation of limestone from the area in question. [317D; 319G] (ii) Even granting that the Custom sheets recorded a local custom that the tenants in the villages of Baknaur and Samahuta excavated stones from the hills near the villages for purposes of trade, a claim of right founded on that custom must be held unreasonable and incapable of enforcement by the sanction of a court 's verdict, [320B] A claim in the nature of a profit a prendre operating in favour of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid custom. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality. To the extent to which it is inconsistent with the general law undoubtedly the custom prevails. But to be valid a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. A right in the nature of a profit a prendre in the exercise of which the residents of a locality are entitled to excavate stone for trade purposes would ex facie 313 314 be unreasonable, because the exercise of such a right ordinarily tends to the complete destruction of the subject matter of the profit. The custom, if exercised in its amplitude as claimed, may also lead to breaches of the peace, for it would be open to all tenants to work any quarry simultaneously for trade purposes. [321B D; 324D] Lord Rivers vs Adams, L.R.3 exhibit Div. 361, Harris & Anr. vs Earl of Chesterfield and Anr. , , Alfred F. Beckett Ltd. vs Lyons , referred to Lutchhmeeput Singh vs Sadaulla Nushyo & Ors., I.L.R. 9 Cal. 698 and Arjun Kaibarta vs Manoranjan De Bhoumick, I.L.R. , approved. Henry Goodman vs The Mayor and Free Burgesses of the Borough of Saltash. 7 A.C. 633 and Mercer vs Denne, , 557 distinguished.

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.

The Karta of a Hindu undivided family was assessed to Incometax from year to year until the assessment year 1953 54 either as an individual or as the Karta. But later, the Income Tax Officer issued notices to him under section 34(1) of the Income tax Act, 1922, for the assessment years 1951 52 to 1953 54 and under section 22(2) for the years 1954 55 to 1956 57 for assessment of the income as having been received by an association of persons consisting of the Karta and his minor son in 1951 52, and the Karta, his minor son and a firm in the years 1952 53 to 1956 57, and assessed the income received as income and associations of persons. The Appellate Assistant Commissioner and the Tribunal, in appeals filed before them, substantially confirmed the order of the Income tax Officer. The High Court, upon a reference. held that the income for the assessment year 1951 52 did E not accrue to an association of persons, but confirmed the view taken by the Income tax Officer in respect of the income for the year 1952 53 to 1956 57. The Karta then moved the High Court under article 226 of the Constitution and contended that section 3 of the Income tax Act, 1922, invested the Income tax Officer with arbitrary and unguided power to assess the income of an association of persons in the hands either of the association or of the persons constituting that association and it therefore offended article 14 of the Constitution. The High Court rejected the petitions. In appeals to this Court against the decisions of the High Court in the writ petition and the reference under section 66 of the Income tax Act. HELD:(i) section 3 of the Income tax Act, 1922, was not violative of article 14 of the Constitution. The duty of the Income tax Officer is to administer the provisions of the Act in the interests of public revenue, and to prevent evasion or escapement of tax legitimately ,due to the State. Though an executive Officer engaged in the administration of the Act. the function of the Income tax Officer is fundamentally quasi judicial. His decision to bring to tax either the income of the association collectively or the shares of the members of the association separately is not final: it is subject to appeal to the Appellate Assistant Commissioner and to the Tribunal. The nature of the authority exercised by the Income tax Officer in a proceeding to assess to tax income, and his duty to prevent evasion or escapement of liability to pay tax legitimately due to the State, con stitute adequate enuciation of Principles and policy for the guidance of the Income tax Officer. [72B H] 66 Suraj Mall Mohta & Co. vs A. V. Visvanatha Sastri and Anr. , distinguished. Shri Ram Krishna Dalmia vs Shri Justice S.R. Tendolkar and Ors. ; , Jyoti Pershad vs The Administrator for the Union Territory of Delhi. ; and Commissioner of Income tax U.P. vs Kanpur Coal Syndicate, referred to, There is no force in the contention that section 23A of the Income tax Act, as it was incorporated by Act 21 of 1930 laid down certain principles for the guidance of the Income Tax Officer in exercising his option, but since the repeal of that section by Act 7 of 1939, the discretion vested in the Income tax Officer to select either the income of the association or the individual member is unfettered. By the repeal of section 23A(1) the essential nature of the power of the Incometax Officer was not altered. He remained as before under a duty to administer the Act, for the benefit of public revenue, but his powers were to be exercised judicially and so as to avoid double taxation of the same income. [73A B; 74F G] (ii) There was abundant material on the record to prove that the Karta, his minor son and the firm formed an association in the years 1952 53 to 1956 57. Under section 2(9) of the Income tax Act, 1922, read with el. (42) of 3 of the General Clauses Act, a firm is a person within the meaning of the Income tax Act and a firm and an individual or group of individuals may form an association of persons within the meaning of section 3 of the Income tax Act. [75F, G] There is nothing in the Act to indicate that a minor cannot become a member of an association of persons for the purposes of the Act. In any event the High Court had rightly held that the mother and guardian of the minor son must, on the facts, be deemed to have given her implied consent to the participation of the minor in the association of persons. [75H] Commissioner of Income tax, Bombay vs Laxmidas & Anr. and Commissioner of Income tax, Bombay North, Kutch Saurashtra vs Indira Balkrishna, , referred to. (iii)The doctrine of res judicata does not apply so as to make a decision on a question of fact or law in a proceeding for assessment in one year binding in another year. The assessment and the facts found are conclusive only in the year of assessment: the finding on questions of fact may be good and cogent evidence in subsequent years, when the same question falls to be determined in another year but they are not binding and conclusive. The finding recorded by the High Court that in the year 1951 52 there was no association of persons constituted by the Karta and his minor son did not in 'the present case have any effect on the finding of the Tribunal that in year 1952 53 and the subsequent years such an association existed. Furthermore, the association of persons which traded in 1952 53 and the subsequent years was different from the association in 1951 52 because in 1952 an association was formed of the Karta, his son and a firm. [75B C] (iv)If the person described as a principal officer of an. association is duly served with a notice under section 23(2) in the manner prescribed by section 23(2), an adjudication of his status as the principal officer, before assessment proceedings may take place, is not obligatory. The order assessing the association containing a finding that the per. son served is the principal officer is sufficient compliance with the 67 requirements of the statute. It is open to the association to challenge the finding of the Income tax Officer in appeal before the Appellate Assistant Commissioner and in further appeal to the Appellate Tribunal. But the order declaring him as the principal officer of an association of persons will not be deemed to be void merely because the proceeding for assessment was not preceded by a declaration of his status as the principal officer. [80G 81B] Commissioner of Income tax, Punjab & N.W.F.P. vs Nawal Kishore Kharaiti Lal, (1938) 6 I.T.R. 61, referred to.

The appellant Co operative Society has filed this appeal by special leave against the High Court 's order passed in a writ petition filed by it whereby the High Court set aside the award of the Industrial Tribunal. The High Court in the impugned order held that the appellant is liable to pay to its employees bonus at the rate of 20 per cent of its total annual earnings for the years 1975 76, 1976 77 and 1977 78. The appellant contends that the High Court went wrong in directing the appellant to pay bonus with regard to various amounts invested by it as permitted by the relevant provi sions of the Maharashtra Cooperative Societies Act 1960, and the amounts carried forward to its reserve fund. According to the appellant, the High Court neither read the provisions of Sec. 6(d) of the Bonus Act 1965 correctly nor was it justified in relying on the Explanation to the 3rd Schedule to the Bonus Act. Dismissing the appeal subject to the modification indi cated in the judgment hereinbelow, this Court, HELD: The expression "capital" is not defined under the Bonus Act. It must therefore be understood in the sense in which that expression is generally understood. That means all amounts which are classified as capital in contrast to revenue must qualify for deduction subject to the limit of 8.5 per cent, provided such capital is invested by the Society in its establishment as evidenced by its books of accounts at the commencement of the accounting year. Any such capital upto 8.S per cent is thus deductible. Further more, all sums which have been carried forward in respect of the relevant accounting year to a reserve fund as required under any law applicable to Co operative Societies for the time being in force are also deductible from gross profits. [269B D] 267 Accordingly all such amounts held by the Society as reserve fund in terms of Sec. 66 of the Co operative Socie ties Act must qualify for deduction. [269H] If larger amounts are carried forward to the reserve fund in terms of Sec. 66, all such amounts will come within the ambit of item (4) of the 3rd Schedule to the Bonus Act and qualify for deduction. [270A B]

Held (Per section R. DAs, ACTING C.J., VIVIAN BOSE, BHAGWATI and B.P. SINHA, JJ. JAGANNADHADAS J., dissenting) that section 5(1) of the Taxation on Income (investigation Commission) Act, 1947 (Act XXX of 1947) is ultra vires the Constitution as it is discriminatory and violative of the fundamental right guaranteed by article 14 of the Constitution by reason of two amendments which were made in section 34 of the Indian Income Tax Act, 1922 (Act XI of 1922) one in 1948 by the enactment of the Income Tax and Business Profits Tax 1248 (Amendment) Act, 1948 (Act XLVIII of 1948) and the other in 1954 by the enactment of the Indian Income Tax (Amendment) Act, 1954 (Act XXXIII of 1954). If the provisions of section 34(1) of the Indian Income tax Act as it stood before its amendment by Act XLVIII of 1948 had been the only provisions to be considered, the Court would have reached the same conclusion as it did in A. Thangal Kunju Musaliar vs M. Venkitachalam Potti & Anr., ([1955] 2 S.C.R. 1196), but the position was materially affected by reason of two amendments made in that section by two Acts, one in 1948 and the other in 1954. Amended section 34(1) of the Indian Income tax Act was substantially different from the old section 34(1) which was in operation up to the 8th September 1948. The words "if in consequence of definite information which has come into his possession the lncome tax. Officer discovers that income, profits or gains chargeable to income tax have escaped assessment in any year. . . which appear in the old section were substituted by the words "if the Income tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee. . income, profits or gains chargeable to income tax have escaped The requisites of (i)"definite" information (ii) which had " come into" possession of the Income tax Officer and in consequence of which (iii) he "discovers" that income, profits or gains chargeable to income tax bad escaped assessment, were no longer necessary and the only thing which was required to enable the Income tax Officer to take proceedings under section 34(1) as amended was that he should have reason to believe that by reason of the omission or failure on the part of the assesses income, profits or gains chargeable to income tax had escaped assessment for a particular year. Whereas before this amended section 34(1) came to be substituted for the old section 34(1) there was no com parison between the provisions of section 5(1) of Act XXX of 1947 and section 34(1) of the Indian Income tax Act as it then stood, the provisions of section 34(1) as amended after the 8th September 1948 could stand comparison with the provisions of section 5(1) of Act XXX of 1947 and the cases which were covered by section 5(1) of Act XXX of 1947 could be dealt with under the procedure laid down in section 34(1) of the Indian Income tax Act. After the 8th September 1948, therefore, even in the case of substantial evaders of income tax who were a distinct class by themselves intended to be treated by the drastic and summary procedure laid down by Act XXX of 1947, some cases that were already referred by the Central Government for investigation by the Commission could be dealt with under that Act and other cases, though falling within the same class or category, could be dealt with under the procedure prescribed in the amended section 34(1) of the Indian Income tax Act. The persons who were thus dealt with under section 34(1) of the Indian Income tax Act had available to them the whole procedure laid down in that Act including the right to inspect documents and the right to question the findings of fact arrived at 1249 by the Income tax Officer by the procedure of appeal and revision and ultimate scrutiny by the Income tax Appellate Tribunal which was denied to those persons whose cases had been referred by the Central Government for investigation by the Commission under s.5(1) of Act XXX of 1947. Different persons, though falling under the same class or category of substantial evaders of income tax, would, therefore, be subject to different procedures, one a summary and drastic procedure and the other a normal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed in Act XXX of 1947. Per JAGANNADHADAS J. The class of persons falling under section 5(1) of the Taxation on Income (Investigation Commission) Act, 1947 (Act XXX of 1947) is totally different from that which falls within amended section 34 of the Indian Income Tax Act 1922 (Act XI of 1922) and therefore section 5(1) of Act XXX of 1947 is not unconstitutional as offending article 14 of the Constitution. Suraj Mall Mohta vs A. V. Visvanatha Sasttrii and Another ([1955] 1 S.C.R. 448), Shree Meenakshi Mills Ltd. vs A. V. Visvanatha Sastri and Another ([1955] 1 S.C.R. 787), A. Thangal Kunju Musaliar vs M. Venkitachalam Potti & Anr. and M. Venkitachalam Potti & Anr. vs A. Thangal Kunju Musaliar, ([1955] 2 S.C.R. 1196), Syed Qasim Bazvi vs The State of Hyderabad and Others ([1953] S.C.R. 581), Habeeb Mohamed vs The State of Hyderabad ([1953] S.C.R. 661) and Gangadhar Baijnath and others vs Income tax Investigation Commission, etc. (A.I.R. 1955 All. 515), referred to.

Shri Ganapathy Mills Co. Ltd., Distributed dividend to its shareholders out of its business profits earned in the years ending December 31, 1953 and December 31, 1954. The company, however carried in its accounts a large balance of unabsorbed depreciation admissible under section 10(2) (vi) & 10(2) (vi a) of the Income tax Act, 1922 and on that account it had no taxable income in the relevant assessment years 1954 55 and 1955 56. In assessing the income of the shareholders for the assessment years the Income tax Officer rejected the claim for exemption from tax Linder section 15 C(4) of the Income tax Act and brought the dividend to tax. This order was confirmed by the Income tax Appellate Tribunal. The High Court, in a reference, held in favour of the assessees. With certificate the Revenue appealed. The question that fell for consideration were : (i) Whether the High Court 's view that unabsorbed depreciation of previous years must be ignored in computing the profits under section 10 and the Implied assumption that unabsorbed depreciation was carried forward and set off under section 22(4) were correct; (ii) Whether, the claim under section 15 C(4) could be made even when there was no taxable profit for which exemption could be claimed Linder section 15 C(4). HELD : (i) Under proviso (b) to section 10(2) (vi) the unabsorbed depreciation in an year is to be deemed the depreciation for the succeeding year into the accounts of which it is carried forward and the aggregate of depreciation in the year of assessment and the unabsorbed depreciation of the previous year is deemed to be depreciation allowance for the year of assessment. The opinion of the High Court that in computing the profits of an industrial 'undertaking under section 10, unabsorbed depreciation for the previous years must be ignored is inconsistent with the plain terms of the proviso. [438 D E; 439 D] The right to claim allowance of unabsorbed depreciation does not arise out of section 24(2) of the Act. Under the scheme of section 15 C(4) profits and gains of an industrial undertaking must be determined under and in the manner provided by section 10 of the Income tax Act. For that purpose all the allowances under sub section (2) are taken into account and the resultant amount forms a component of the taxable profits, By proviso (b) to section 10 (2) (vi), the unabsorbed depreciation in the previous year is deemed depreciation for the subsequent year, and there is no room for making any distinction between the unabsorbed depreciation for the previous year and the depreciation for the current year. The right to appropriate the profits towards the unabsorbed depreciation in the previous year does not arise under section 24(2); it arises by virtue of section 10(2) (vi) proviso (b). [439 D F] 435 (ii)The right of the shareholders to obtain benefit of exemption under 15 C(4) depends upon the company obtaining the benefit of exemption under sub section (1) of section 157C for the exemption from payment of tax on the dividend received by the share holders is admissible only on that part of the profits or gains on which the tax is not payable by the com pany under sub section [439 HI On this view it must be held that the claim of shareholders in the present case rightly disallowed by the taxing authorities. [435 H; 441 D] [Proviso (b) 'to section 24(2 held inapplicable, with the observation that it deals merely with priority and does not convert what is unabsorbed depreciation of the previous year which is deemed to be depreciation for the current year into loss "for the purpose of carry forward".[440 D] Commissioner of Income tax, Calcutta vs Jaipuria China Clay Mines (P) Ltd., , referred to.

The appellant was doing business of construction as contractor under Public Works Department in Vindhya Pradesh, now Madhya Pradesh. He challenged the levy of Sales Tax on building materials supplied by him for the year 1953 54 to 1958 59. The contention of the Petitioner was that the tax was not leviable in view of the decision of the Supreme Court in Gannon Dunkerley 's case and Pandit Banarsi Das 's case. The respondents claimed that the tax was leviable because the case fell within the derision in Mithan Lal 's case. The Rajpramukh of the United State of Vindhya Pradesh promulgated the Vindhya Pradesh sales Tax Ordinance 2 of 1949. On Vindhya Pradesh becoming Part C State of India the said ordinance of Rajpramukh was applied to the whole of it with effect from April 1, 1950, by notification No. 7 of March 28, 1951. Under section 2 of the Part C States (Laws) Act, 1950, by notification No. S.R.O. 6 dated December 29, 1950, the Central Provinces & Berar Sales Tax Act 1947, was extended to Vindhya Pradesh. The notification also added section 29 to the Madhya Pradesh Act so extended, by which ordinance 2 of 1949 was repealed. By reason of the decision of this Court in the Delhi Laws Act case the addition of section 29 was unconstitutional. Parliament then enacted the Part C States (Misc. Laws) Repealing Act (66 of 1951). By section 2 of the Act the Vindhya Pradesh Sales Tax ordinance, 1949, was deemed to have been repealed from December 29, 1950. The Vindhya Pradesh Laws (Validity) Act, 1952, also provided and declared that Central Provinces & Berar Sales Tax Act, 1947, which was extended to Vindhya Pradesh under section 2 of the Part C States Laws Act, 1950, has been and shall be deemed to be in force in Vindhya Pradesh from April 1, 1951. The said C. P. & Berar Sales Tax Act defined contract, goods, sales etc, and by these definition the materials used or supplied by 258 a building contractor in the constructions etc, were made liable to Sales Tax in accordance with the schedule rates. The question is, whether C. P. been extended for the first time by the Vindhya Pradesh legislature in 1952, when it passed the Vindhya Pradesh Laws (Validating) Act, 1952, to the exclusion of the order contained in the notification No. S.R.O. 6 or whether the Act continued to be in force in Vindhya Pradesh even before and all that the Vindhya Pradesh Act did as to remove any doubts about its validity. The rival contentions of the appellant and the respondents are reduced to the proposition that if the State Legislature of Vindhya Pradesh extended the Central Province and Berar Sales Tax Act, the extended Act would suffer from disability pointed out in Gannon Dunkerley 's case, but if the said Act was extended by the notification under Part C States (Laws) Act, 1950, then it must be treated as incorporated in the Act and to have the authority of Parliament which, in relation to Part C States, had no limitation whatever. ^ Held, that the extended law in the C. P. & Berar Sales Tax Act, 1947, did not depend on the repeal of the earlier law for its validity. It would have been operative, even if the earlier law was not repealed, but the earlier law was in fact repealed from December 29, 1950, and no question of conflict between the new and the old law ever arose. Held, further, that the Vindhya Pradesh Amending Act made only verbal changes, but did not alter the structure of the tax. No doubt, that Act contained certain provisions under which sales of building materials are taxable, and if the authority to tax the so called sales emanated from a State Legislature, then the law would fail. The law was first extended to the Vindhya Pradesh by the Central Government acting under the authority of Parliament legislating for a Part C State. Parliament and the Central Government were not subject to the disabilities pointed out in Gannon Dunkerley 's case, and the matter was covered by Mithan Lal 's case. Even if the notification S.R.O. No. 6 failed to repeal ordinance 2 of 1949 Parliament by its own law effaced that ordinance in Vindhya Pradesh from December 29, 1950, and enacted that ordinance shall be deemed to be repealed from that day. The ordinance 2 of 1949 did not continue in Vindhya Pradesh down to January 8, 1953 because by fiction the ordinance was repealed from December 29, 1950. Held, also, that the laws in different portions of new State of Madhya Pradesh were enacted by different legislatures and under section 119 of the States Reorganisation Act, all 259 laws in force in a state were to continue until repealed or altered by the appropriate Legislature. The different sales tax laws in different parts of Madhya Pradesh are valid on the ground that the differentiation arises from historical reasons, and a geographical classification based on historical reasons is not affected by article 14 of the Constitution. State of Madras vs Gannon Dunkerley & Co. ; , Pandit Banarsidas vs State of Madhya Pradesh, ; , Mithan Lal vs State of Delhi; , In re the ; , , Gannon Dunkerley vs State of Madras, , Behram Khurshed Pesikaka vs The State of Bombay, , Deepchand vs State of Uttar Pradesh, [1959] Supp. 2 S.C.R. S, John M. Wilkerson vs Charles A. Rahrer, (1891) 140 U. section 545, M. K. Prithi Rajji vs State of Rajasthan C. A. No. 327/56 decided on 2 11 60 and State of Madhya Pradesh vs The Gwalior Sugar Co. Ltd. C. A. Nos. 98 and 99 of 1957 decided on 30 11 1960, referred to.

The respondent assessee, under a deed of trust dated October 26, 1937 executed by his father Pyarey Lal Banerji which was modified by another trust deed dated April 28, 1950, received "the net income of the trust funds" after the death of his father. The assessee treated this amount as an annuity and claimed exemption under section 2(e)(iv) of the Wealth Tax Act, 1957. The claim for exemption was negatived by all the authorities including the Appellate Tribunal, Allahabad Bench. The Tribunal, however, holding that the inclusion of the entire value of the corpus in the computation of net wealth was not correct as the assessee had merely a life interest in it, directed the Wealth Tax Officer to modify the assessments valuing the life interest of the assessee according to recognised principles of valuation. On a reference, at the instance of the assesee, the High Court held the interest of the assessee in the trust fund amounted to an annuity exempt under section (e)(iv) of the Wealth Tax Act. E Allowing the appeal by special leave and answering against the assessee, the Court ^ HELD: (I) In order to claim that an item of property should not be treated as an asset for purposes of the Wealth Tax Act, by virtue of subclause (iv) of section 2(e)(1), it has to be established (a) that it is an annuity and (b) that commutation of any portion thereof into a lumpsum grant is precluded by the terms and conditions thereto. [663 C] (2) It is true that the word "annuity" is not defined in the Act. In order to constitute an annuity, the payment to be made periodically should be a fixed or pre determined one and it should not be liable to any variation depending upon or any ground relating to the general income of the fund or estate which is charged for such payment. The intention of the settlor must be seen, whether he wanted that the assessee should get a pre determined sum every year or whether the assessee should get the whole net income of the trust fund. [665 C, 671 G] In the instant case, since the interest of the settlor was that the whole net income of the trust fund should go to the assessee, the right of the assessee cannot be treated as an annuity. The fact that under the trust deed the trustee had been given the power to reinvest the proceeds of the Government securities leads to the possibility of variation of the income and Consequently of the amount to be received by the assessee. make it clear that it was not an annuity. The fact that no such reinvestment had taken place during the relevant year is immaterial. [671 H 672 B] 658 Ahmed G.H. Ariff & Ors. vs Commissioner of Wealth tax, Calcutta, ; Commissioner of Wealth tax, Gujarat II vs Mrs. Arundhati Balkrishna, (1968) 70 I.T.R. 203, explained and applied. Commissioner of Wealth tax, Rajasthan vs Her Highness Maharani Gayatri Devi of Jaipur , followed. Commissioner of Wealth tax, A.P. vs Nawab Fareed Nawaz Jung & ors. , overruled. In re Duke of Norfolk: Public Trustee vs Inland Revenue Commissioners distinguished.

The respondents flied returns for the year 1953 54 and they were provisionally assessed on 14 10 1954, and regular assessment was. made on 27 2 58. For the next four succeeding years the respondents filed returns, and for all the years the regular assessments under section 23 of the Income Tax Act, 1922 were made after 27 2 58. SinCe no estimate of the tax payable on their income as required by section 18A was seat nor the in advance paid, the Income Tax Officer while assessing them under section 23 held that they were liable to pay interest under section 18A(8) and in addition he applied the provisions of section 18A(9)(b) and imposed a penalty for each year of assessment by virtue of section 28 read with section 18A(9)(b). The respondents preferred appeals to the Appellate Assistant Commissioner on the ground that the levy of interest and penalty 'was unauthorised. The appeals were dismissed, and the respondents went :in revision, which was also dismissed. Thereupon, the respondents filed writ petitions in the High Court to quash the order and succeeded. The High Court held that section 18(3) of the Act did not apply to the facts of the case as there had been a provisional assessment under section 23B of the Act in 1954. In appeals to this Court, by the Revenue the question for consideration was whether the expression "any person who has not hitherto been assessed" in section 18A(3) of the Indian Income Tax Act, 1922 after the all Income Tax Amendment Act 67 of 1949 should be interpreted so as to 'include a person who has only been provisionally assessed under section 23B ,of that Act. HELD : The appeals must be dismissed. Even when the tax is provisionally assessed, there necessarily has to be a determination of the total income of the assessee. The only difference is that under section 23 the total income is determined after the Income Tax Officer has satisfied himself fully about the correctness of the return fled by taking steps, if necessary, under sections 22(4) and 23(2) of the Act. In the case of a provisional assessment under section 23B. of the Act, the powers under sections 22(4) and 23(2) of the Act are not to be exercised and the Income Tax Officer has to determine the tax on the basis of the return filed by the assessee after taking into consideration the accounts and documents available, if any, and after giving effect to certain allowances and losses. In other words, what the Income Tax Officer has to do is to assess provisionally the total income of the assessee and thereafter he has to determine the tax payable on the basis of that provisionally assessed income. [731 A D] It is important to notice that in section 18A(1) the expression "assessed" is used without any qualification or restriction as to whether the assessment should be a regular assessment or any other type of assessment 725 under the Act. It is also manifest that in section 18A sub section (5) the two expressions "provisional assessment" and "regular assessment" are expressly mentioned. The expression "regular assessment" is also repeatedly used in section 18A, sub. section 6, 7, 8 and 9. There is therefore, no warrant for restricting the meaning of the word "assessed" in section 18A(1) so as to include only a "regular assessment" under section 23 of the Act. There is no reason why Parliament did not add the word "regularly" in the sub section so as to qualify the word "assessed". Since there is no such qualification, the word "assessed" in section 18A(3) should be read in its ordinary sense as including every kind of assessment including a provisional assessment under section 23B of the Act. [732 A C] There is nothing in the 1961 Act to suggest that Parliament intended to explain the meaning or clear up doubts about the meaning of the word "assessee" in section 18A(3) of the earlier Act. Generally speaking a subsequent Act of Parliament affords no useful guide to the meaning of another Act which came into existence. before the later one was ever framed. Under special circumstances, the law does however admit of a subsequent Act to be resorted to for this purpose but the conditions under which the later Act may be resorted for the interpretation of the earlier Act are strict; both must be laws on the same subject and the part of the earlier Act which it is sought to construe must be ambiguous and capable of different meanings. [733 F H] Kirkness (Inspector of Taxes) vs John Hudson & Co. Ltd., ; In re MacManasway, and Inland Revenue Commissioners vs Dowdall, O 'Mahonay & Co. Ltd., , referred to.

ivil Appeal No.18 of 1961. Appeal by special leave from the judgment and order dated January 23, 1960, of the Madhya Pradesh High Court at Indore in Second Appeal No. 473 of 1959. Z. F. Bootwala, E. Udayarathanam and section section Shukla, for the appellants. M. C. Setalvad, Attorney General of India, B. Sen and T. M. Sen, for respondent No. 1. H. L. Khaskalam and 1. N. Shroff, for the respondents Nos. 2, 3. 1961. April 5. The Judgment of the Court was delivered by SARKAR, J. This appeal raises the question whether the suit filed by the appellants was property dismissed on the ground that a civil court had no jurisdiction to entertain it. The Courts below held that a civil court 's jurisdiction to entertain the suit was barred by section 9 of the . The appellants had filed the suit for a declaration that they were citizens of India and for an injunction restraining the defendants from removing them from India. The defendants were the Union of India, the State of Madhya Pradesh and the District Magistrate, Jhabua, in Madhya Pradesh. The appellants stated in the plaint that they were citizens of India and had not ceased to be such citizens. They said that in the beginning of 1953 they went to Pakistan for a temporary visit without a passport but when they wanted to return they were compelled to obtain Pakistani passports. They stated that they obtained these passports only as a device for securing their return to India and had really been compelled to obtain the passports against their will. They further stated that, therefore, they could not be said to have acquired citizenship of Pakistan. They also stated that they had made all efforts for the cancellation of the passports and to obtain permission to stay in India permanently but were unsuccessful. They said that the 781 State of Madhya Pradesh served on them an order dated November 11, 1955, under section 3(2) of the , asking them to leave the country. They contend that this order was illegal and without justification as they were not foreigners. In the written statement filed by the defendants it was stated that the appellants had left India between March and May, 1948, and they returned for the first time on a temporary Pakistani passport sometime in the early part of 1955. It was also stated that the permits granted to them to remain in India were extended from time to time and ultimately up to about October, 1955, and thereafter they were served with orders to quit India. The defendants further stated that the appellants were not citizens of India as they had voluntarily acquired Pakistani citizenship by obtaining passports from that country . The suit was dismissed as it was held not to be maintainable in view of the provisions of sub see. (2) of a. 9 of the . That sub section is in these terms: Section 9 (2). "If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rule % of evidence, as may be prescribed in this behalf. " Rule 30 of the Rules framed under this Act provides that such a question shall be determined by the Central Government, who for that purpose shall have regard to the rules of evidence specified in Schedule III to the Rules. It seems to us clear that sub see. (2) of B. 9 of the bars the jurisdiction of the civil court to try the question there mentioned because it says that those questions shall be determined by the prescribed authority which necessarily implies that it cannot be decided by anyone else. The only question, however, which a civil court is prevented by section 9(2) of the from determining is the question whether a citizen of India has acquired citizenship of another country or when or how he acquired it. The 782 civil courts are not prevented by this provision from determining other questions concerning nationality of a person. There is no doubt that the suit by the appellants raised the question whether they had lost their Indian citizenship by acquiring the citizenship of Pakistan. The appellants themselves had raised that question by pleading in their plaint that they had not voluntarily acquired the citizenship of Pakistan. To that extent, it has to be held that the appellants ' suit was barred. It seems to us however that the suit raised other questions also. The appellants ' claim to the citizenship of India was resisted on the ground that having migrated to Pakistan in 1948, they had never acquired Indian citizenship. That might follow from article 7 of the Constitution. The jurisdiction of a civil court to decide that question is not in any way affected by section 9(2) of the . Therefore it seems to us that the entire suit should not have been dismissed. The Courts below should have decided the question whether the appellants had never been Indian citizens. If that question was answered in the affirmative, then no further question would arise and the suit would have to be dismissed. If it was found that the appellants had been on January 26, 1950, Indian citizens, then only the question whether they had renounced that citizenship and acquired a foreign citizenship would arise. That question the Courts cannot decide. The proper thing for the court would then have been to stay the suit till the Central Government decided the question whether the appellants had renounced their Indian citizenship and acquired a foreign citizenship and then dispose of the rest of the suit in such manner as the decision of the Central Government may justify. The learned Attorney General appearing for the respondents, the defendants in the suit, conceded this position. He did not contend that there was any other bar to the suit excepting that created by section 9 of the . What we have said disposes of this case but we think we should express our views on some of the arguments of the learned counsel for the appellants. 783 He first contended that it is only when a right is created by a statute and a Tribunal is set up for the determination of that right by that statute that the jurisdiction of a civil court as to a question concerning that right is taken away and that,, therefore, the jurisdiction of a civil court to entertain the appellants suit was not taken away. We are unable to accept this contention. A competent legislature may take away a civil court 's jurisdiction to try other questions also. No authority has been shown that this cannot be done. Another argument advanced by him was that the appellants had no right to approach the Central Government to decide the question whether they had lost their Indian citizenship and therefore the appellants ' right to resort to a civil court to decide that, question cannot be deemed to have been barred. Reliance was placed in support of this contention on Sharafat Ali Khan vs State of U.P. (1). This question really does not arise because the learned Attorney General appearing for the respondents has conceded the appellants ' right to apply to the Central Government for a decision of the question. Even apart from this concession the view expressed in Sharafat Ali Khan vs State of U. P. (1) would seem to be open to grave doubt. But in the circumstances of this case we do not feel called upon to say more on that matter. For the reasons earlier stated, we set aside the orders and the judgments of the Courts below and direct that the suit be heard and decided on all questions raised in it excepting the question whether the appellants having been Indian citizens for sometime have renounced that citizenship and acquired a foreign citizenship. If ' the Court finds that the appellants had never been Indian citizens, then the suit, would be dismissed by it. If on the other hand, the court finds that they were Indian citizens earlier, then the court would stay the further hearing of the suit till the Central Government decides whether the appellants had acquired subsequently a foreign nationality (1) A.I.R. i96o All. 784 and thereafter dispose, it of by such order as the decision of the Central Government may justify. There will be no order as to costs. Appeal allowed. Case Remitted.

The only question that a civil court is precluded from determining under section 9(2) of the , read with r. 30 Of the Rules framed under the Act is the question as to whether, when or how any person has acquired the citizenship of another country. They are not prevented from determining other questions concerning the nationality of a person. Where, therefore, a suit brought for a declaration that the appellants were Indian Citizens, where they themselves had raised the question of acquisition of foreign citizenship, was resisted on the ground that they had never been Indian Citizens, and the courts below dismissed the suit in its entirety, Held, that the courts below were in error in holding that the suit was barred in its entirety by section 9(2) Of the Act. They should have decided the question as to whether the appellants had ever been citizens of India and, if the finding was in their favour, should have stayed the suit till the Central Government had decided whether such citizenship was renounced and if the finding was against the appellants dismissed the suit.

Rule 15(1)(c) of Order XXI of the Supreme Court Rules, 1966 envisages that the petition of appeal under sub clause (a) or sub clause (b) of clause (1) of article 134 of the Constitution or under the or under section 379 of the Code of Criminal Procedure 1973, on being Registered shall be put up for hearing ex parte before the court which may either dismiss it summarily or direct issue of notice to all necessary parties or make such orders, as the circumstances of the case may require. The appellants in the appeal who were acquitted by the Sessions Court had been convicted and sentenced by the High Court and awarded life imprisonment under section 302 read with section 149 IPC. When their appeal under the was listed for preliminary hearing under Rule 15(1)(c) of Order XXI of the Supreme Court Rules, 1966 it was contended (1) that the said provision empowering the court to dismiss the appeal summarily was ultra vires the Enlargement Act, 1970, (2) the power of the Supreme Court to frame rules under article 145 of the Constitution can not be extended to annul the rights conferred under an Act of Parliament and (3) that an appeal under the Enlargement Act, 1970 cannot be dismissed summarily without calling for the records, ordering notice to the State and without giving reasons. ^ HELD: (Per Krishna Iyer, Shinghal & Desai, JJ.) 1. Article 134(1)(c) spells a measure of seriousness because the High Court which has heard the case certifies that it involves questions of such moment that the Supreme Court itself must resolve them. To dispose of such a matter by a preliminary healing is to cast a reflection on the High Court 's capacity to understand the seriousness of a certification. [1095 D E] 2. Article 136 vests a plenary discretion in the Supreme Court to deign or decline to grant leave to appeal against any conviction or sentence. Before deciding to grant or reject such Leave the court accords an oral hearing after 1086 perusing all the papers produced. Once leave is granted, the appeal is heard, after notice to the state, in full panoply. After leave, the appeal is born. Then it ripens into fullness and is disposed of when both sides are present. No appeal after leave, is dismissed summarily or ex parte. If article 136 gives a discretionary power to grant leave to appeal or to dismiss in limine, after an ex parte hearing (or after issue of notice if the court so chooses), article 134 which gives a constitutional right to appeal as it were, must stand on a higher footing lest the Constitution makers be held to have essayed in supererogation. [1095G 1096A] 3. There is much more 'hearing ' content in an absolute appellate right than in a precarious 'special leave ' motion. Jurisprudentially, a right is large than a permission. Art 134 puts the momentous class of cases covered by it beyond the discretionary compass of article 136 and within the compulsory area of full hearing such as would follow upon leave being granted under article 136(1). A full hearing may not obligate dragging the opposite side to court involving expense and delay. Fullness of hearing of the proponent is not incompatible with non hearing of the opponent when after appreciating all that could be urged in support of the cause there is no need felt to call upon the other side, as where the proposition is groundless, frivolous or not prima facie statable. [1096B D] 4. Article 134(2) empowers Parliament to expand the jurisdiction of the Supreme Court to entertain criminal appeals. In exercise of this power, Parliament enacted the in its grave concern for long incarceration being subject to great scrutiny at the highest level if first inflicted, by the High Court. A right of appeal to the Supreme Court was granted when the High Court has, for the first time sentenced an accused to life imprisonment or to a term of or above ten years of rigorous imprisonment and equated it with that granted under article 134(1)(a) and (b). [1097G 1098D] 5. The nature of the appeal process cannot be cast in a rigid mould as it varies with jurisdiction and systems of jurisprudence. Whatever the protean forms the appellate process may take, the goal is justice so that a disgruntled litigant cannot convert his right of appeal into breaking down the court system by sufferance of interminable submission after several tribunals have screened his case and found it fruitless. The signification of the right of appeal under article 134 is a part of the procedure established by law for the protection of life and personal liberty. Nothing which will render this right illusory or its fortune chancy can square with the mandate of article 21. [ 1100H 1101A, 1102F, 1103D, 1104H 1105A] 6. When the High Court trying a case sentences a man to death a higher court must examine the merits to satisfy that human life shall not be haltered without an appellate review. A single right of appeal is more or less a universal requirement of the guarantee of life and liberty rooted in the conception that men are fallible, that Judges are men and that making assurance doubly sure before irrevocable deprivation of life or liberty comes to pass, full scale re examination of the facts and the law is made an integral part of fundamental! fairness or procedure. [1105C, E] 7. The life of the law is not perfection of theory but realisation of justice in the concrete situation of a given system. It is common knowledge that 1087 a jail appeal or an appeal filed through an advocate does not contain an exhaustive accompaniment of all the evidentiary material or record of proceedings laying bare legal errors in the judicial steps. It is not unusual that a fatal flaw has been discovered by the appellate judges leading to a total acquittal. Such a high jurisdiction as is vested by article 134 calls for an active examination by the judges and such a process will be an ineffectual essay in the absence of the whole record. A preliminary hearing is hardly of any use bearing in mind that what is being dealt with is an affirmation of death sentence for the first time. Section 366 of the Code requires the Court of Session which passes a sentence of death to submit the proceedings to the High Court and rulings insist on an independent appellate consideration of the matter and an examination of all relevant material evidence. The Supreme Court 's position is analogous, and independent examination of materials is impossible without the entire records being available. So it is reasonable that before hearing the appeal under Rule 15(1 ) (c) of Order XXI, ordinarily the records are sent for and are available. Counsel 's assistance apart, the court it self must apply its mind, the stakes being grave enough. [1105F 1106B] 8. The recording of reasons is usually regarded as a necessary requirement of fair decision. The obligation to give reasons for decision when consequence of wrong Judgment is forfeiture of life or personal liberty for long periods needs no emphasis, especially when it is a first appeal following upon a heavy sentence imposed for the first time. The constraint to record reasons secures in black and white what the Judge has in mind and gives satisfaction to him who is condemned that what he has had to say has not only been 'heard ' but considered and recorded. article 21 is a binding mandate against blind justice. In the narrow categories of cases covered by article 134(1)(a) and (b) and section 2(a) of the Enlargement Act, the subject matter is of sufficient gravity as to justify the recording of reasons in the ultimate order. [1160F G, 1106H 1107A] 9. Protection at the third deck by calling for the records or launching on long ratiocination is a waste of judicial time. Our Rules of Criminal Procedure provide for dismissal at the third level without assigning written reasons, not because there are no reasons, but because the tardy need to document them hampers the hearing of the many cases in the queue that press upon the time of the court at that level. [1107F] 10. Order XXI, Rule 15(1)(c) of the Rules in an enabling provision not a compulsive one. Harmonious construction of article 134 and article 145 'leads to the conclusion that the contemplated rules are mere machinery provisions. The sequence is simple. The formalities for entertaining certain types of appeal ale covered by article 145(1)(d) the manner of hearing and disposal is governed by article 145(1)(b) and the substantive sweep of the appeal as a method of redressal is found in article 134. [1107G H, 1108D, 1109A]. It is daily experience to see judges on the high bench differ, and a fortiori so in the field of sentence, This reality is projected in the context of full freedom for the first appellate decider of facts to reach his own finding on offence and sentence, only to highlight how momentous it is for the appellant to have his case considered by the highest court when the Constitution and Parliament have conferred a full right of appeal Summary dismissal, save in glaring cases, may spell grave jeopardy to life giving justice 1088 That is why Order XXI Rule 15(1)(c) while it survives to weed out worthless appeals, shall remain sheathed in extra ordinary cases where facts on guilt or the wider range of considerations on sentence are involved. [1109G 1110B] 12. Rule 15(1)(c) of Order XXI is general and covers all conceivable cases under article 134(1). It operates in certain situations, not in every appeal. It merely removes an apprehended disability of the court in summarily dismissing a glaring case where its compulsive continuance, dragging the opposite party, calling up prolix records and expanding on the reasons for the decision, will stall the work of the court (which is an institutional injury to social justice) with no gain to anyone, including the appellant to keep whom in agonising suspense for long is itself an injustice. [1111C D] 13. If every appeal under article 134(1) (a) and (b) or section 2(a) of the enlargement Act, where questions of law or fact are raised, is set down for preliminary hearing and summary disposal, the meaningful difference between article 134 and article 136 may be judicially eroded and Parliament stultified. The minimum processual price of deprivation of precious life or prolonged loss of liberty is a single comprehensive appeal. To be peevel by this need is to offend against the fair play of the constitution. [1111H 1112B] 14. Upholding the vires of Order XXI Rule 15(1)(c) of the Supreme Court Rules and also section 384 of the Criminal Procedure Code the majority however held that in their application both the provisions shall be restricted by the criteria set out hereunder ns a permissible exercise in constitutionalisation of the provisions. [1112H] 15. Order XXI Rules 15(1)(c) in action does not mean that all appeals falling within its fold shall be routinely disposed of. Such a course obliterates the difference between Articles 134 and 136, between right and leave. The rule in cases of appeals under article 134(1)(a) and (b) and section 2(a) is notice, records and reasons, but the exception is preliminary hearing on all such materials as may be placed by the appellant and brief grounds for dismissal. This exceptional category is where, in all conscience, there is no point at all. In cases of real doubt the benefit of doubt goes to the appellant and notice goes to the adversary even if the chances of allowance of the appeal be not bright. [113A C] [With a view to invest clarity and avoid ambiguity, Order XXI Rule 15(1)(c) may be suitably modified.] Maneka Gandhi vs Union of India, [1978] 1 SCC 248; Presidential Ref. No. 1 of 1978 ; Wiseman vs Barneman, ; Russel vs Duke of Norfolk, 11949] 1 All. ER 109, Ponnamma vs Arumogam, [1905] AC at p. 390; Colonial Sugar Refining Co. vs Irving, ; Newman vs Klausner, ; referred to. Black 's Law Dictionary 4th Edn. p. 1368, Stroud 's Judicial Dictionary, 3rd Edn. Vol. 1, pp. 11 p. 194, Law Quarterly Review Vol. 71, 1955 p. 410 11. The Judicial Process by Henry J. Abraham, 1962 pp. 159 160; referred to. 1089 Per Kailasam & Koshal, JJ. (dissenting) 1. Article 145 of the Constitution empowers the Supreme Court subject to the provisions of any law made by Parliament with the approval of the President to make rules from time to time for regulating generally the practice and procedure of the court. [1116B] 2. Article 134 confers appellate jurisdiction on the Supreme Court in regard to criminal matters, and while an unrestricted right of appeal is provided to the Supreme Court under clauses (a) and (b) an appeal under such clause (c) is provided only when the case is certified by the High Court as a fit one for appeal. Further, an appeal under sub clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of article 145 and to such conditions as the High Court may establish or require [1116D 1117B] 3. The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) . Act, 1970 has conferred on the Supreme Court further power to entertain and hear appeals than conferred on it under article 134(1)(a) and (b) as provided for in article 134(2) of the Constitution. [1117C] 4. Article 145(1)(b) enables the Supreme Court to frame rules as to procedure for hearing appeals. Rule 15 of under XXI provides for the procedure for hearing appeals and is valid so far as to the procedure of hearing appeals. [1117D E, 1118C] 5. While section 374 confers a right of appeal, section 375 and section 376 restrict such a right. Section 384 prescribes the procedure for hearing appeals enabling the court to dismiss certain appeals summarily and to deal with others under section 385 if they are not summarily dismissed. The right of appeal conferred can be curtailed by procedure as envisaged in section 384 Cr. P.C. Or Rule 15 order XXI of the Supreme Court Rules. [1120D] 6. An appeal to the Supreme Court under section 374 Cr. P.C. is restricted by the provisions of section 375 and section 376 and could be dealt with summarily under section 384 Cr. P.C. An appeal to the Supreme Court is subject to the several provisions of the Cr. P.C. including the provisions relating to summary disposal of the appeals. [1120E F, G] 7. The powers and the jurisdiction of the appellate court as prescribed by the Criminal Procedure Code and the rule cannot be said to deny a right of hearing to the appellant. The right to be heard in an appeal is regulated be statute. After a full trial the judgment is rendered by a High Judicial Officer such as a Sessions Judge or a High Court Judge. The appellate court has before it the Judgment of the lower court and the petition for appeal. At the preliminary hearing the appellant or his pleader is heard before the court decides to dismiss the appeal summarily. The power to summarily dismiss an appeal is conferred under the Criminal Procedure Code when the court is satisfied that there are no sufficient grounds for interfering with the judgment appealed against. This decision is taken by the appellate court being the Chief Judicial Magistrate, Court of Sessions, the High Court or the Supreme Court. In the case of the Chief Judicial Magistrate and Court of Sessions, reasons should be recorded for summarily dismissal. The High Court and the Supreme Court need not record reasons for summarily dismissing the appeal. It is necessary that the Supreme Court or the High Court should be satisfied that there are not sufficient ground for interfering. The conclusion is arrived at after hear 1090 ing the appellant, examining the judgment and the petition for appeal. The appellate court is discharging an onerous duty in dismissing a case summarily. The Code provides for calling for the records before dismissing an appeal. In cases where an appellant is sentenced to death, imprisonment for life or long term of imprisonment, it is the bounden duty of the appellate court to hear the appellant, examine the petition of appeal and copy of the judgment appealed against. If it feels necessary to call for the records of the case, it is duty to call for the records and examine them, before coming to the conclusion that there are not sufficient grounds for interfering. It is the responsibility of the appellate authority to order notice and hear the other side if it is not satisfied that there be no sufficient grounds for interfering. Equally it is the duty of the appellate court to dismiss the appeal summarily if it i.e satisfied that there are no sufficient grounds for interfering is duty is imposed for regulating the work of the courts for otherwise judicial time would be unnecessarily spent. Taking into account the fact that the duty to decide the question where there are no sufficient grounds for interfering is placed on highly placed judicial officers after affording a due hearing, it cannot be stated that the very right of appeal bas been taken away. [1122E F, 1122H 1123F] 8. The procedure contemplated in Rules 13, 14 and 15 of the Supreme Court Rules are almost similar to the provisions of the Code of Criminal Procedure relating to appeal. In an appeal sent by the appellant from jail he is entitled to send any written arguments which he may desire to advance in support of his appeal. The Court in proper cases in which it considers it desirable would engage an advocate to present the case of the appellant in jail. The mere fact that the appellant in jail is not being heard in person or through an advocate would not mean that the appeal is not being heard. The court peruses the judgment, petition of appeal and the written arguments, if any, before proceeding to take action under Rule 15. This Court being the highest court is not required to give reasons but is expected to bestow the greatest care in exercising the power of summary dismissal under Rule 15. [1124G 1125A] P.K. Mittra vs State of West Bengal, [1959] SUPPL. I SCR 63; Shankar Kerba Yadhav vs State of Maharashtra, ; ; Minakshi vs Subramanya, 14 IA 168; Govinda Kadtuji Kadam vs State of Maharashtra, ; ; referred to. Maneka Gandhi vs Union of India, [1978] 2 SCR 621; distinguished.

The appellants, a partnership firm assessed under sections 23(3) and 26 A of the Income tax Act, were called upon by the Income tax Officer during the assessment year 1947 48 to explain how and when they came to possess 61 thonsand rupee currency notes which they had encashed on the 18th January, 1946, after the promulgation of the High Denomination Bank Notes (Demonetisation) Ordinance of 1946, under which such notes ceased to be legal tender on the expiry of the 12th of January, 1946. The assessees produced their cash book entries from the 20th December, 1946, to the 18th January, 1946, which were accepted as correct by the Income tax Officer, who, however, made no further scrutiny of the accounts, and,the entries showed that on the 12th of January, 1946, the cash balance in hand was Rs. 69,891 2 6. The case of the appellants was that the said notes were a part of the cash balance and in further support of their case they filed before the Appellate Assistant Commissioner three affidavits by persons actually making the payments, in respect of certain entries in the cash book to prove that Rs. 20,000 on the 28th December, 1946, Rs. 15,000 on the 6th of January, 1946, and Rs. 8,000, out of a sum of Rs. 8,500, on the 6th of January, 1946, were paid in thousand rupee notes. The Income tax Officer and the Appellate Assistant Commissioner in appeal, on a calculation of their own, held that the possession by the appellants of so many thousand rupee notes was an impossibility and that these notes must represent income from, undisclosed sources and as such be added to the assessable income of the appellants. Neither the Appellate Assistant Commissioner nor the Income tax Officer, who was present at the hearing of the appeal, called for the deponents in order to cross examine them with reference to their statement in the affidavits. The Appellate, Tribunal on appeal accepted the explanation of the assesses in respect of 31 of the notes but not with regard to the rest and rejected their application for a reference of the matter to the High Court. The assessees moved the High Court and the Tribunal was directed under section 66(2) to state 627 a case for its decision. In answering the main question, the High Court was of the opinion that the finding of the Tribunal was a finding of fact or an inference based on such finding and it was not possible to say that such finding or inference was unreasonable or arbitrary. Held (per curiam), that the High Court was in error in refusing to interfere with the finding of the Tribunal which was based on no evidence and the appeal must succeed. Per C.J. and BHAGWATI J. Conclusions based on facts proved or admitted may be conclusions of fact but whether a particular inference can legitimately be drawn from such conclusions may be a question of law. Where, however, the fact finding authority has acted without any evidence or upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found, the court is entitled to interfere. Chunilal Ticamchand Coal Co. Ltd. vs Commissioner of Income tax, Bihar and Orissa, ([1955]) , applied. Cameron vs Prendergast (Inspector of Taxes), ([1940] 8 I.T.R. (Suppl.) 75), Bomford vs Osborne (H. M. Inspector of Taxes), ([1942] 10 I.T.R. (Suppl.) 27) and Edwards (Inspector of Taxes) vs Bairstow and Another, ([1955] , referred to. The High Court was in error in treating the finding of the Tribunal as a finding of fact and failed to apply the true principles of interference applicable to such cases. The entries in cash book and the statements made in the affidavits in support of the explanation. which were binding on the Revenue and could not be questioned, clearly showed that it was quite within the range of possibility that the appellants had in their possession the 61 high denomination notes on the relevant date and their explanation could not be assailed by a purely imaginary calculation of the nature made by the Income tax Officer or the Appellate Assistant Commissioner. The Tribunal made a wrong approach and while accepting the appelants ' explanation with regard to 31 of the notes, it had absolutely no reason to exclude the rest as not covered by it in absence of any evidence to show that the excluded notes were profits earned by the appellants from undisclosed sources. The appellants having given a reasonable explanation the Tribunal could not, by applying a rule of thumb, discard it so far as the rest were concerned and act on mere surmise. Per VENKATARAMA AYYAR J. The finding of the Tribunal that high denomination notes of the value Rs. 30,000 represented concealed profits of the appellants being unsupported by any evidence amounted to an error of law and was liable to be set aside. That so many notes of high denomination should have been held as part of 628 the cash for so long a time, might be highly suspicious but decisions must be founded on legal testimony and not on suspicion. The question whether the accounts were genuine or not was a pure question of fact and a finding that they were genuine was binding both on the Revenue and the subject.

The appellant had been convicted and sentenced to imprisonment exceeding two years by the Sessions Judge, Delhi, on February 26/27, 1979. By his Order dated February 27, 1979, passed under section 389(3) of the Code of Criminal Procedure, the Sessions Judge who had convicted the appellant suspended the execution of the sentence to afford the appellant time to file an appeal. On March 21, 1979 the High Court of Delhi admitted his appeal and by an order of the same date directed that his sentence shall remain suspended provided the appellant furnished a personal bond and surety in the amount of Rs. 5,000/ to the satisfaction of the Sessions Judge, which was complied with. The respondent and the appellant contested the election as rival candidates to the Lok Sabha from No. 18 Mahasamund Parliamentary Constituency in Madhya Pradesh. The last date for filing nominations was December 7, 1979. The scrutiny of the nomination papers took place on December 11, 1979. The Returning Officer by his Order dated December 11, 1979 rejected the objection of the respondent that the appellant was disqualified from being chosen as a candidate in view of sub section (2) of section 8 of the Representation of the People Act, 1951 and accepted the appellant 's nomination as valid. The result of the election was declared on January 7, 1980. The election result was notified on January 10, 1980. The appellant was declared elected and the respondent was defeated. Thereafter, on February 18, 1980 the respondent filed an election petition 1 of 1980 in the High Court of Madhya Pradesh to get the election of the appellant declared void under section 100(1)(a) and 100(1)(b)(i) of the Act challenging that at the date of the election including the date of the scrutiny of the nomination papers the appellant was disqualified by virtue of section 8(2) of the Act from being chosen as candidate on account of his aforesaid conviction and sentence. The appellant 's appeal pending in the High Court was transferred to the Supreme Court under the . The Supreme Court by its judgment dated April 11, 1980 allowed the appeal set aside the conviction and sentence of the appellant and acquitted him of charges against him. Subsequent 638 to this decision of the Supreme Court, by its judgment dated September 5, 1980 the High Court of Madhya Pradesh allowed the election petition with costs and declared the appellant 's election to be void on the ground contained in section 100(1)(d)(i) of the Act, hence the appeal. Allowing the appeal, the Court ^ HELD: (1). Abiding by the principle of stare decisis and following the ratio decidendi of Manni Lal 's case; , , the acquittal of the appellant in appeal prior to the pronouncement of the judgment of the High Court in the election petition had the result of wiping out his disqualification as completely and effectively as if it did not exist at any time including the date of the scrutiny of the nomination papers and that his nomination paper was properly accepted by the Returning Officer. [660B C] Manani Lal vs Shri Parmai Lal & Ors. ; , applied (2) An order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed. An order of acquittal annulling or voiding a conviction operates from nativity. [654B] Manni Lal vs Shri Parmai Lal & Ors. , ; ; Dilip Kumar Sharma & Ors. vs State of Madhya Pradesh, ; , followed. (3) The ratio decidendi logically deducible from Manni Lal 's case is that if the successful candidate is disqualified for being chosen, at the date of his election or at any earlier stage of any step in the election process on account of his conviction and sentence exceeding two years ' imprisonment, but his conviction and sentence are set aside and he is acquitted on appeal before the pronouncement of judgment in the election petition pending against him, his disqualification is annulled rendered non est with retroactive force from its very inception, and the challenge to his election on the ground that he was so disqualified is no longer sustainable. [656D E] (4) A plain reading of section 100(1) of the Act shows that it can be conveniently divided into two parts. Clauses (a), (b) and (c) of the sub section fall in the first part and clause (d) along with its sub clauses falls in the second part. The distinction between clauses (a), (b) and (c) in the first part and clause (d) in the second part lies in the fact that whereas on proof of any of the grounds mentioned in clauses (a), (b) and (c), the election has to be declared void without any further requirement, in a case falling under clause (d) the election cannot be declared void merely on proof of any of the grounds mentioned in its sub clauses, unless it is further proved "that the result of the election in so far as it concerns the returned candidate has been materially affected". The expression "any nomination" occurring in sub clause (i) of clause (d) in the second part may include nomination of a returned candidate as well; but in the case of a returned candidate whose nomination has been improperly accepted, the effect on the result of the election so far as it concerns him, is obvious. However, if the election is challenged on the ground that the nomination of a candidate, other than the returned candidate, has been improperly accepted, the petitioner in order to succeed will be required to prove under clause (d)(i) in addition to improper acceptance the further fact that thereby 639 the result of the election so far as it concerns the returned candidate has been materially affected. [651H 652D] Clause (a) of sub section (1) requires that the disqualification or lack of qualification of the returned candidate is to be judged with reference to "the date of his election", which date, according to section 67A is "the date on which a candidate is declared by the returning officer under the provisions of section 53 or section 66, to be elected to a House of Parliament or of the Legislature of a State". But, the word "disqualified" used in clause (a) is capable of an expensive construction also, which may extend the scope of the inquiry under this clause to all the earlier steps in the election process. Section 7(b) defines "disqualified" to mean "disqualified for being chosen as and for being, a member of either House of Parliament etc. " The words "for being chosen" in that definition have been interpreted by the Supreme Court in Chatturbhuj 's case; , , to include the whole "series of steps starting with the nomination and ending with the announcement of the election. It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen." But this definition of "disqualified" is in terms of section 7(b) meant for Chapter III, in Part II of the Act; while section 100 falls in Chapter III of Part VI. If the expression "for being chosen" which is a central limb of the definition of "disqualified", is given such an extensive interpretation which will bring in its train the whole series of steps and earlier stages in the election process commencing with the filing of the nominations, it will be repugnant to the context and inconsistent with "the date of his election". Such a construction which will introduce disharmony and inconsistency between the various limbs of clause (a) has to be eschewed. In the context of clause (a), therefore, the ambit of the words "for being chosen" in the definition of "disqualified" has to be restricted to "the date of his election" i.e. declaration of the result of the election under section 53 or section 66, and such date is to be the focal point of time in an inquiry under this clause. [652H 653D] In contrast with clause (a), in a case falling under clause (d)(i) of section 100, if an objection is taken before the Returning Officer against the nomination of any candidate on the ground of his being not qualified, or being disqualified for being chosen the crucial date as per section 36(2)(a) with reference to which the existence or non existence of such disqualification is to be enquired into is the date of scrutiny of the nomination of the candidate. [653C] Assuming that technically, the election petitioner 's case that survives is one under clause (d)(i), and not under clause (a) of section 100(1). Even so, the fact remains that, in substance, the election of the appellant is being challenged on the ground that on account of his conviction and sentence exceeding two years, the appellant was under Article 102(1)(e) of the Constitution read with section 8(2) and 36(2)(a) of the Act, disqualified for being chosen to fill the seat concerned. Such being the real ground of challenge, apart from sub clause (i), sub clause (iv) of clause (d) of section 100(1) will also be attracted, because the phrase "non compliance with the provisions of the Constitution or of this Act etc. " according to the decision of this Court in Durga Shankar Mehta 's case is wide enough to cover a case where the improper acceptance or rejection of the nomination is challenged on the ground of the candidate being disqualified for being chosen. [653E G] 640 Durga Shanker Mehta vs Thakur Raghuraj Singh & Ors. [1955] 1 SCR 267 and Chatturbhuj Vithaldas Jasani vs Nareshwar Parashram Ors., , followed. (a) It is true that in order to adjudicate upon the validity of the challenge in the appellant 's election under clause (d) (i) of section 100(1), what was required to be determined by the High Court was whether the nomination of the appellant was properly or improperly accepted by the Returning Officer. But, in order to determine this question, it was necessary for the High Court to decide, as a preliminary step, whether the appellant was disqualified, at the date of scrutiny of the nomination papers, for if he was disqualified, his nomination could not be said to have been properly accepted by the Returning Officer and if, on the other hand, he was not disqualified, his nomination would have to be regarded as properly accepted by the Returning Officer. The primary question before the High Court therefore, was whether or not the appellant was disqualified at the date of scrutiny of the nomination papers and it is difficult to see how the determination of this question could be made on any principle other than that governing the determination of a similar question under clause (a) of section 100(1). If, as laid down in Manni Lal 's case, the returned candidate cannot be said to be disqualified at the date of the election, if before or during the pendency of the election petition in the High Court his conviction is set aside and he is acquitted by the appellate court, on the application of the same principle, that, in like circumstances, the returned candidate cannot be said to be disqualified at the date of scrutiny of the nomination papers. On this view, the appellant could not be said to be disqualified on the date of scrutiny of the nomination paper since his conviction was set aside in appeal by this Court and if that be so, the conclusion must inevitably follow that the nomination of the appellant was properly accepted by the Returning Officer. The position is analogous to that arising where a case is decided by a Tribunal on the basis of the law then prevailing and subsequently the law is amended with retrospective effect and it is then held by the High Court in the exercise of its writ jurisdiction that the order of the Tribunal discloses an error of law apparent on the face of the record, even though having regard to the law as it then existed, the Tribunal was quite correct in deciding the case in the manner it did. [656C H] Venkatachalam vs Bombay Dyeing & Manufacturing Company Limited, ; , referred to.

The appellant (holder of an inam in Madhya Pradesh) served a notice an his tenant, the respondent, terminating to tenancy on the ground that he wanted the land for personal cultivation and filed a suit for ejectment. The trial court decreed the suit. During the pendency of the appeal in the District Court, article 32 of 1954 was enacted, and pursuant to its provisions the hearing of the appeal was stayed. After the Madhya Pradesh Land Revenue Code came into force in 1959, the District Court held that by virtue of section 185 of that Code the respondent acquired the rights, of an occupancy tenant and dismissed the suit. The High Court confirmed the judgment of the District Court. In appeal to this Court, it was contended that : (i) the rights of an occupancy tenant arise in favour of a personl under section 185(1) (i) (a) only if there was between him and the landlord a subsisting tenancy at the date when the Code came into force and since under the law in force before the commencement of the Code, the respondent had ceased to be a tenant because of the notice terminating the contract of tenancy the respondent was not invested with the rights of an occupany tenant; and (ii) bi virtue of sections 261 and 262(2), the operation of section 185 is expressly excluded when a person, against whom ejectment proceedings have been instituted prior to the commencement of the Code in enforcement of a right then acquired, claims the status of an occupancy tenant. HELD : (i) The respondent acquired the right of an occupancy tenant under the Code, because the expression "tenant" in section 185 (1) (ii) (a) includes a person whose tenancy was terminated before the commencement of the Code. The definition of the expression "tenant" in the Code postulates a subsisting tenancy, but the position of a tenant prior to the date on which the Code was brought into force is not dealt with in the definition. In the context in which the expression "tenant" occurs in section 185(1), that definition could not be intended to apply in deter ining the conditions which invest a holder of land with the status of an occupancy tenant at the commencement of, the Code. Therefore having regard to the object of the enactment the expression should be ascribed the meaning it 'has in Act 32 of 1954. Under sections 3 & 4 of that Act a person who was inducted into the land as a tenant and who continued 'to hold the land at the commencement of the Act was entitled to protection against eviction and continue as tenant, notwithstanding that under the law in force prior to the commencement of the Act. the contractual relationship of landlord and tenant was determined. [432 D; 432 14 433 C] 428 There is no reason to think that the Legislature sought to make a A distinction between tenants of Inam land in section 185 (1) (ii) (a) and ryotwari sub lessees of other lands in section 185(1)(ii)(b). Therefore, if the expression "ryotwari sub lessee ' in section 185(1)(ii)(b) includes a sub lessee whose tenaure was terminated before the commencement of the Code, a tenant of inam land, whose tenancy has been terminated would also be included in the protection, provided at some time prior to the date on which the Code was brought into force, he was in possession of the land as a tenant, and he continued to hold the land till the date of the commencement of the Code. [434 E H] (ii) The provisions of the Code appeal to tenants in proceedings for ejectment pending at the commencement of the Code. The proviso to section 261 protects a right which had been acquired under a law repeated by the Code and the right could be enforced as if the code had not been passed. But the right to evict a tenant was governed by the general law of landlord and tenant and was not acquired under any repealed law. The proviso had no operation and a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law enacted in the Code. Therefore, the tenant could not ' be evicted otherwise than in the manner and for reasons mentioned in a. 193 of the Code but, personal requirement for cultivation of land is not a ground on which a claim for ejectment could be maintained. [435 G436 A] Section 262(2) is only procedural it provides that a civil court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, Which, if it had been instituted after the Code was passed would have been tried by a revenue court; and in the disposal of such a suit, the civil court will be governed by the procedural law applicable there to prior to the commencement of the Code. It does not nullify the statutory conferment of occupancy right upon persons in the position of tenants against whom proceedings were taken at the date when the Code was brought into force. [436 B D]

The respondent was appointed as a Sub Inspector of police in a temporary post in 1955. He was discharged from service on July 13, 1957. A Writ Petition filed by him in the Allahabad High Court was allowed on August 4, 1959 and consequently he was re instated in service on December 15, 1959. Thereafter, on January 21, 1960 his services were terminated on the ground that they were no longer required by the State. A suit for declaration that the said order of termination was null and void was decreed in his favour by the trial court which was affirmed in appeal and also by the High Court in second appeal. Allowing the State appeal by special leave the Court, ^ HELD: 1. The considerations which prevailed with the High Court in reaching its findings on the application of Article 311(2) of the Constitution and the bona fides of the superior authority in making the impugned order of termination simpliciter are not warranted in law. [1130D] 2. The order terminating the services was order of termination simpliciter passed in accordance with the rules applicable to temporary Government servants. After the original order of discharge was quashed by the High Court, the respondent was reinstated, allowed increment in pay and one month 's salary in lieu of notice under the 'general rules for termination of services of temporary government servants was also given. [1128F G] 3. It was open to the superior authority to terminate the respondent 's services on the ground on which it did so. And the evidence disclosed no personal motive had influenced the order or that it was passed by way of punishment. A departmental enquiry is not required under the law. Instead of instituting disciplinary proceedings against the government servant, the suitability for retention in service could be decided. [1128H, 1129A, E] State of U.P.v. Ram Chandra Trivedi; , ; Champaklal Chimanlal Shah vs The Union of India, , Jagdish Mitter vs Union of India, A.I.R. 1964 S.C. 449 and State of Punjab & Anr. vs Shri Sukh Raj Bahadur, ; ; referred to. Union of India & Ors. vs R. section Dhaba, , State of Bihar & Ors. vs Shiva Bhikshuk Mishra and R. section Sial vs The State of U.P. and Ors., ; applied. The State of Bihar vs Gopi Kishore Prasad, A.I.R. 1960 SC 689 and Madan Gopal vs The State of Punjab, [1963] 3 SCR 716; distinguished. 1127

The respondent sought special leave to appeal to the High Court under section 417(3) of the Code of Criminal Procedure, 1898 against the acquittal of the petitioner by the trial court. The application was made beyond the period of limitation but the High Court condoned the delay under section 5 of the . In their application for special leave to appeal to this Court the petitioners contended that the time limit of 60 days prescribed under section 417(4) was mandatory and as such the High Court had no jurisdiction to extend the time limit by resort to section 5 of the . Dismissing the special leave petitions, ^ HELD: (1) The order granting special leave was not an order outside the power of the High Court. In a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the , section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of 60 days prescribed in sub section (4) of section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. [265B C] (2) Since under the section 5 is specifically made applicable by section 29(2) it could be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of section 5 that it stands displaced. Section 29(2) (b) of the Limitation Act, 1908 specifically excluded the applicability of section 5 while section 29(2) of the 1963 Act in a clear and unambiguous terms provides for applicability of section 5. [264F, E] Kaushalya Rani vs Gopal Singh ; , explained.

The appellants, a Hindu undivided family, carrying on business in the former State of Mysore, were assessed under the Mysore Income tax Act for the year of assessment 1949 50 corresponding to the year of account July 1, 1948, to June 30, 1949. The Indian Income tax Act came into force in that area in April 1, 1950, and on December 26, 1950, notice under section 22(2) of that Act was served upon the appellants to submit their return for the assessment year 1950 51. On September 8, 1952, the appellants submitted their return stating that they had no assessable income for that year. The Income Tax Officer passed on that return an order, "no proceeding", and closed the assessment. When the appellants submitted their return for the next assessment year, their books of account disclosed an opening cash credit balance of Rs. 1,87,000 and odd on July 1. 1949. They failed to produce the books of account of the previous years, and the Income tax Officer held that Rs. 1,37,000 out of the said opening balance represented income from an undisclosed source. The appellants submitted a fresh return for the assessment year 1950 51 purporting to do so under section 22(3) of the Indian Incometax Act. Pursuant to the direction of the Appellate Assistant Commissioner, the Income Tax Officer on October 15, 1957, served on the appellants a notice under section 34 of the Act and thereupon the appellants moved the High Court under article 226 for an order quashing the said notice and the proceeding as without jurisdiction. The High Court dismissed the petition. Held, that it was not correct to say that the issue of the notice for reassessment was without jurisdiction as the assessment was yet pending. Under section 23(1) of the Indian Income tax Act, it is open to the Income tax Officer, if he is satisfied as to correctness of the return filed by the assessee, to assess the income and determine the sum payable on the basis of the return without requiring the assessee either to be present or to Produce evidence. The order 'no proceeding recorded on the. return must, therefore, mean that the Income Tax Officer bad accepted the previous return and assessed the income as nil. A revised return under section 22(3) filed by the assessee may be 912 entertained only before the order of assessment and not thereafter. Lodging of such a return after the assessment is no bar to reassessment under section 34(1) of the Act. It could not be said, having regard to the provisions of section 13(1) of the Finance Act (XXV of 1950) and cl. 5(1) of Part. B States (Taxation Concessions) Order 1950, issued by the Central Government under section 60A of the Indian Income tax Act, that for the assessment year 1950 51 the appellants were assessable under the Mysore Income tax Act and not under the Indian Income tax Act.

minal Appeal No. 129 of 1960. Appeal by special leave from the judgment and order dated March 9, 1960, of the Allahabad High Court in Criminal Revision No. 697 of 1959. Naunit Lal, for the appellant. G. C. Mathur and C. P. Lal, for the respondent. April 5. The Judgment of the Court was delivered by SARKAR, J. The appellant who had earlier left India, returned on a passport granted by the Government of Pakistan on May 16, 1953. He had a visa endorsed on his passport by the Indian authorities permitting him to stay in India for three months and this permission was later extended upto November 15, 1953. He did not, however, return to Pakistan within that date upon which he was convicted under section 14 of 777 the , by a Sub Divisional Magistrate on March 14, 1959, and sentenced to rigorous imprisonment for one year. His appeal to a Sessions Judge was dismissed and the High Court at Allahabad, on being moved in revision, refused to interfere with the order of the Sessions Judge. This appeal is against the judgment of the High Court. The appellant had been convicted for breach of paragraph 7 of the Foreigners Order of 1948, issued under section 3 of the . That paragraph requires that every foreigner entering India on the authority of a visa issued in pursuance of the Indian Passport Act, 1920, shall obtain from the appropriate authority a permit indicating the period during which he is authorised to remain in India and shall, unless that period is extended, depart from India before its expiry. As earlier stated, the visa on the appellant 's passport showed that he had permission to stay in India till November 15, 1953 but he stayed on after that date. Hence the prosecution. It is contended on behalf of the appellant that he could not be convicted of a breach of paragraph 7 of the Foreigners Order for that paragraph applies to a "foreigner" entering India on the authority of a visa issued in pursuance of the Indian Passport Act and overstaying the period for which he is permitted to stay in India. It is contended that the foreigner contemplated in this paragraph is a person who was a foreigner on the date of his entry into India. The appellant says that on that date he was not a foreigner and, therefore, the provisions of the paragraph do not apply to him. This contention of the appellant is plainly correct. The paragraph contemplates a foreigner entering India, and therefore, a person who at the date of the entry was a foreigner. Now, the word "foreigner" in paragraph 7 has the same meaning as that word has in the . The word "foreigner" is defined in that Act in section 2(a). That definition has changed from time to time, but we are concerned with the definition as it stood in 778 1953 when the appellant entered India, which was in these terms: "foreigner" means a person who. . (1) is not a natural born British subject as defined in sub sections (1) and (2) of Section I of the British Nationality and Status of Aliens Act, 1914, or (2) has not been granted a certificate of naturalisation as a British subject under any law for the time being in force in British India, or (3) is not a citizen of India. The appellants contention is that he was not a foreigner because he came within el. (1) of the definition as he was a natural born British subject within section l(l), (a) of the British Nationality and Status of Aliens Act, 1914. Now that provision is in these terms: section 1. (1) The following persons shall be deemed to be natural born British subjects, namely, (a) any person born within His Majesty 's Dominion and allegiance. That the appellant was born at Allahabad at a time when it was within his Britannic Majesty 's Dominion is not in dispute. That being so, we think that it must be held that the date of his entry into India the appellant was a natural born British subject and, therefore, not a foreigner. He could not have committed a breach of paragraph 7 of the Foreigners Order. In the result we allow the appeal and set aside the conviction of the appellant and sentence passed on him. Before leaving this case we think it right to make a few more observations. The definition of a foreigner in the was amended with effect from January 19, '1957, by Act 11 of 1957. The definition since that date is as follows: " "foreigner" means a person who is not a citizen of India". Under section 3(2), (e) of the , the Central Government has power to provide by order made by it that a foreigner shall not remain in India. We wish to make it clear that we have said nothing as to the effect of the amended definition of a "foreigner" on the status of the 779 appellant. No question as to the effect of the amended definition on the appellant 's status fell for our decision in this case for we were only concerned with his status in 1953. We would also point out that no order appears to have been made concerning the appellant under section 3(2)(c) and we are not to be understood as deciding any question as to whether such an order could or could not have been made against the appellant. Appeal allowed.

The appellant was born in India before the partition. He left for Pakistan and returned to India in 1953 on a Pakistani passport and Indian visa. He did not return to Pakistan before the expiry of the period for which he was permitted to stay in India under the visa. He was convicted for a breach of paragraph 7 Of the Foreigners Order, 1948, which required every "foreigner" entering India to depart from India before the expiry of the period during which he was authorised to remain in India. Held, that the appellant was not a foreigner on the date of his entry into India and his conviction was bad. On the relevant date the appellant was a natural born British subject within section 1(1)(a) of the British Nationality and Status of Aliens Act, 1914, and consequently was not a foreigner as defined in section 2(a) of the , as it then stood.

Appellant No. 1 filed a petition challenging the election of the first respondent from the Lambi Assembly Constituency ( 'reserved seat) in the district of Ferozepur, Punjab, at the 1967 general election. It was urged in the petition that the nomination paper of appellant No. 2 had been wrongly rejected by the Returning Officer who had held that appellant No. 2 was a mochi and as such not a member of the chamar caste mentioned in item 9 of the Constitution (Scheduled Castes) Order, 1950 issued under article 341 of the Constitution. It was also urged that the Returning Officer had at first accepted the nomination paper but had subsequently reviewed his own order. The High Court dismissed the petition, whereupon an appeal was filed in this Court. HELD: (i) On the evidence it was not possible to hold that the Returning Officer had after announcing his decision accepting the nomination paper reviewed his own order afterwards. (ii) No ground had been made out for disturbing the conclusion of the trial court on the evidence that appellant No. 2 was a mochi and not a member of the chamar caste. (iii) It was not open to this Court to scrutinise whether a person properly described as a mochi also fell within the caste of chamars and could describe himself as such. The question was one the determination of which lay within the exclusive power of the President under article 341 of the Constitution. [1003 B C] , Basavalingappa v.D. Munichinnappa & Ors. ; and Bhaiya Lal vs Harikrishen Singh & Ors., ; , applied. Article 341 empowered the President to specify not only entire castes races or tribes but also parts or groups within castes, races or tribes which were to be treated as Scheduled Castes in relation to a particular State or Union Territory. So far as chamars and mochis are concerned, a reference to the Constitution (Scheduled Castes) Order, 1950 shows that the President was not of opinion that they were to be considered to belong to the same caste in all the different States. In several States chamars and mochis were put on the same footing but not so in the State of Punjab. Even after the Reorganisation of the Punjab Act, 1966 when the question of specification of Scheduled Castes in the territories created came up for his consideration the President did not take the view that mochis should be classed with chamars in so far as the States of Haryana, Punjab and the Union Territory of Chandigarh were concerned though he directed that in the Union Territories of Delhi and Himachal Pradesh mochis and chamars were to be placed in the same group. [1000 E, H; 1001 A D]

The appellant, a cash clerk in the establishment of Delhi Milk Scheme, was placed under suspension under Rule 10(2) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, pending investigation into a crimi nal case, connected with the forgery of a cheque, in which he was arrayed as an accused. Subsequently, his services were terminated under Rule 5(1) of the Central Civil Serv ices (Temporary Service) Rules, 1965. Though he was acquit ted in the criminal case, he was not re instated. However, the Central Administrative Tribunal set aside the termina tion order and directed that the appellant would continue to be under suspension from the original date of termination of service, and that it would be open to the competent authori ty, to revoke his suspension and re instate him in service or continue him under suspension, if it decided to initiate disciplinary proceedings against him. Pursuant to the decision of the Tribunal, the Management passed an order under Rule 10(4) of the Rules placing the appellant under suspension from the date of original order of termination and also directed that there should be fur ther enquiry against the appellant. Allowing the appeal preferred by the appellant and modifying the Tribunal 's order, HELD: 1.1 There are three requirements for the applica tion of Rule 10(4) of the Central Civil Services (Classifi cation, Control and Appeal) Rules, 1965. These are (i) the Government servant is dismissed, removed or compulsorily retired as a measure of penalty; (ii) the said 331 penalty is set aside or declared or rendered void by a decision of a Court of Law; and (iii) the disciplinary authority decides to hold a further inquiry against the Government servant on the allegations on which the original order of penalty was imposed. [334F G] 1.2 In the instant case, the original order of termina tion was not passed against the appellant as a measure of punishment. It was a 'simpliciter termination ' under Rule 5(1) of the CCS (Temporary Service) Rules, 1965. The Tribu nal has set aside that order on the ground that it amounts to punishment and the order of punishment could not have been made without holding an inquiry. But that is not the same thing to state that the Management made an order termi nating the services by way of penalty. It treated the said order as a simpliciter discharge. Hence Rule 10(4) has no application. Besides, there was no question of the Manage ment deciding to hold a further inquiry, since there was no earlier inquiry against the appellant and it would be misno mer to call it a further enquiry as contemplated under Rule 10(4). [335B C] 1.3 Thus, the power to place a delinquent officer under suspension from the date of the original order of dismissal, removal or compulsory retirement from service would be available provided the original order was made by way of penalty and that order has been set aside by a Court of Law. Since there was no inquiry leading to the removal of the appellant in the first instance, the decision to hold fresh inquiry does not attract Rule 10(4). The retrospective suspension of the appellant is, therefore, unjustified and without authority of law. However the order of suspension would operate prospectively and the appellant would be entitled to re instatement with all back wages till that day since the original order of termination has been set aside by the Tribunal. The Tribunal 's order is modified according ly. [335D G]

The appellants, one a Sub Divisional Officer and the other a Naib Tehsildar, were entrusted with the duty of allotting land to displaced persons. The first respondent forcibly occupied the land allotted to B. On May 9, 1958, the first appellant ordered that B and other allottees similarly situated would be given possession of lands allotted to them on May 20, 1958. On May 16, 1958. the first respondent and others threatened with dispossession filed petitions in the High Court under article 226 of the constitution and obtained interim stay of delivery of possession till May 19, 1958, when the petitions would come up before the Division Bench for admission. On May 19, 1958, the Division Bench extended the operation of the stay order until May 23, 1958. The notice of the first stay order reached the appellants on May 19, 1958, but no notice of the second order was officially communicated to them till May 21, 1958. It was alleged that on May 20, 1938, the appellants, although informed of the second stay order by certain interested persons and the Advocate for one of the parties, formally dispossessed the respondent in disobedience of the Court 's order and handed over possession of the land to B. On the complaint of the respondent the High Court field that the .appellants were guilty of contempt of Court and, instead of committing them for contempt, administrated a warning as the appellants honestly believed that they were not bound to stay delivery of possession in absence of an official communication. The appellants appealed by special leave. Held, (per Das and Subba Rao, JJ.)that in a case of contempt for disobedience of a prohibitive order, as distinguished from an order of affirmative nature, it was not necessary to show that notice of the prohibitory order was served upon the party against whom it was granted. It would be sufficient if it was proved that the party had notice of it aliunde. N.Baksi vs O. K. (Thosh, A. T. R. (19.)7) Patn. 528, referred to. 128 There may be circumstances where officials entrusted with the carrying out of a legal order might have valid reasons to doubt The authenticity of the order conveyed to them by interested parties. But in the present case there could hardly be any such reasons. The appellants had really no justification for doubting the authenticity of an order communicated to them by an Advocate. Held, further. that in a matter relating to contempt of court, there cannot be both justification and apology. shareef vs The Hon 'ble Judges of the High Court of Nagpur; , , referred to. Although the appellants might have honestly believed that they were not bound to bold their band in absence of an official communication, that would be no defence to the charge of contempt of court, but only a relevant consideration in awarding the sentence. Per Daval, J. Contempt proceedings are criminal or quasi criminal in nature and it is essential that before any action can be taken the accusation must be specified in character. In the instant case, the respondent did not state that he was formally dispossessed. This would 'be for some reason if actual posssssion had been delivered. He could not be said to have come to court with clean hands. Further, the finding of the High Court that the appellants delivered possession honestly believing that they were not bound not to do so in the absence or the official communication meant that there was no defiance of the High Court 's order. There could be no willful disobedience since there was no belief in the existence of the order. It may not be necessary that the party against whom a prohibitory order was made must be served with the order, but it should have notice of the order before it could be expected to obey. Such notice must be from sources connected with the court passing the order. The alleged knowledge of the party cannot be made, to depend on the veracity of the witnesses examined by the party praying for action. In re Bryant L.R (1987 6) In Ex Parte Langly, Exparte Smith. In re Bishop L. R. and The Seraglio. L. R. , discussed.

By an order dated May 25, 1954, the Supreme Court granted the petitioners in the case special leave to appeal against the judgment and order of the High Court at Calcutta. In accordance with the order, the petitioners furnished the security amounts directed to be deposited within the time specified in the order. The Registrar of the High Court did not issue any notice of admission of 'appeal to be served by the Appellant 's Solicitor on the Respondents as envisaged in rule 9 of Order XIII, S.C.R. Nor did the Appellant following the practice of the High Court, move that Court for It admission" of the appeal until January 11, 1955. The Respondents first moved the High Court complaining of default on the part of the appellants in due prosecution of the appeal and latter moved the Supreme Court for action under rule 13 of Order XIII of the Supreme Court Rules. The application in the High Court was therefore kept pending. Held: After the grant of special leave under article 136, the Registrar of the Supreme Court transmits, in accordance with the 244 provisions of rule 8 of Order XIII of the Supreme Court Rules, a certified copy of the Supreme Court 's order to the Court or tribunal appealed from, Rule 9 of Order XIII of the Supreme Court Rules enjoins upon the Court or tribunal appealed from to act, in the absence of any special directions in the order, in accordance with the provisions contained in Order XLV of the Civil Procedure Code, so far as they are applicable. Accordingly the Court or Tribunal to which the order is transmitted receives deposits on account of security for the Respondents ' costs, printing costs, and any other deposits if so ordered by the Supreme Court, and sets about preparing the record of the appeal for transmission to the Supreme Court. Therefore, action under rule 13 of Order XIII, S.C.R., for rescinding the order granting special leave cannot be initiated unless the Court or tribunal appealed from reports to the Supreme Court that the appellant has not been diligent in taking steps to enable that Court to carry out the directions, if any, contained in the order of the Supreme Court and to act in accordance with the provisions of Order XLV of the Civil Procedure Code so far as applicable to appeals under Article 136 of the Constitution. In view of rule 9 of Order XIII of the Supreme Court Rules, the application of Order XLV of the Code of Civil Procedure to appeals under Article 136 of the Constitution is restricted. The Court or tribunal appealed from, no doubt, has to carry out the directions contained in the order granting special leave, and to receive the security for the Respondents ' costs and other necessary deposits, but once the security is furnished and the other deposits are made, the formality of "admission" envisaged by rule 8 of Order XLV of the Civil Procedure Code is unnecessary, because in such cases the order .granting special leave by itself operates as an admission of the appeal as soon as the conditions in the order relating to the furnishing of security or making of deposits are complied with. Appeals under Article 136 thus stand on a different footing from appeals on grant of certificate by the High Court itself. In the letter case, the High Court has exclusive jurisdiction over the matter until it admits the appeal under rule 8 of Order XLV of the Civil Procedure Code. Rule 9 of Chapter 32 of the Original Side Rules of the Calcutta High Court envisages "admission" of appeals to the Supreme Court whether by an order of the Supreme Court or under Order XLV of the Civil Procedure Code. And when an appeal arising from an order made by the Supreme Court under Article 136 of the Constitution, has been so "admitted", the said rule enjoins upon the Registrar to issue notice of such admission for service by the appellant on the Respondents. In cases where special leave has been granted by the Supreme Court, it is not necessary for the appellant to move the High Court appealed from for the formal admission of his appeal. As the order granting special leave itself lays down the conditions to be fulfilled by the appellants, the admission will be regarded as final only when the directions are complied with and as 245 soon as this is done it would be the duty of the Registrar to issue a notice of the admission of the appeal for service upon the respondents. In default of the issue of such notice, the appellant cannot be held responsible for laches in the prosecution of his appeal with regard to the steps required to be taken after the admission of his appeal.

The appellant was convicted under section 8 read with section 16 of the Prevention of Food Adulteration Act by the Sub Divisional Magistrate, Jalaun and sentenced to six months rigorous imprisonment, the minimum sentence awardable under the P.O.F.A. 1950. In appeal the Session Court reversed it, but in further appeal by the State against his acquittal and reversal of the trial court decision, the High Court of Allahabad set aside the Session 's orders and restored that of the trial court. Dismissing the appeal by special leave the Court, ^ HELD: 1. Sections 8 and 9 of the Prevention of Food Adulteration Act, 1950 as amended by section S of the Amending Act 49 of 1964 cannot be read as repealing the old sections and empowering the Central Government or the State Government to appoint the Public Analyst or the Food Inspector after the coming into force of the amending Act, implying that any prior appointment o '. a Public Analyst or Food Inspector stood repealed. [345A] 2 Whether the notifications of the Government in 1968 appointing the public Analyst and the Food Inspector with retrospective effect from March 05 are valid or not need not be looked into because being an amendment Act, the appointment of the Public Analyst and the Food Inspector made by the State Government continued to be valid. [345B C] 3. The amended sections 8 and 9 do not in any way repeal sections 8 and 9 as they originally stood. As to the effect of the amendment the language of the amending sections will have to be examined to find out whether the original conditions were intended to be repealed. The amending provisions should be held as part of the original statute. [345D E] 4. Whenever the amended section has to be applied subsequent to the date of the amendment, the unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. Reading the amended section, it is clear that there is no provision, express or implied, repealing the existing provisions or the rules made thereunder. The section will have to be construed as being in addition to what had already existed. The effect will be that the power of the State Government which already existed under the unamended section and the appointments made thereunder preserved and the action taken under the amended sections with be in addition to the powers of the State Government and the appointments which had already been made. [345F G] 342 Nagar Mahapalika, Lucknow vs Ram Dhani, A.I.R. 1971 All. 53 approved. The contention that the analysis of the milk after 44 days must yield to an adverse inference against the State as to adulteration cannot be accepted. [346A] In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis. This statement of the analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned, in this case it is admitted that formalin was added to the milk by the Food Inspector. The Food Inspector added 16 drops of formalin in each of the bottles and had them sealed properly. Rule 20 of the Prevention of Food Aduleration Rules requires that in the case of milk, cream Dahi, Khoa and Gur a preservative known as "formalin", that is to say, a liquid containing about 40 per cent of 'formaldehyde ' in aqueous solution in the proportion of 0.1 ml. (two drops) for 25 ml. Or 25`grams shall be added. There is also the clear evidence of Public Analyst that no change had taken place in the constituents of milk which would interfere with the analysis.[346D G, 347A] Babboo vs State, A.I.R. 1970 All 122; approved. Dattappa Mahadappa vs Secy. , Municipal Committee, Baldana, A.I.R. 1951 Nag.191 referred to.

The appellants had applied for compensation to the Jagir Abolition Officer under section 13 of the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1953 in respect of their proprietary jagirs. Against the orders of the said officer they preferred appeals to the Revenue Tribunal which were dismissed for non prosecution. The appellants thereupon filed applications for restoration of the appeals within 30 days of the receipt of the orders of dismissal of the appeals. These applications were dismissed as time barred, the Tribunal taking the view that time was to be calculated from the date of the order. The appellants ' applications under article 227 of the Constitution to the High Court failed and they came by way of special leave, to this Court. It was contended on behalf of the appellant that (i)the Tribunal even while deciding ex parte had to decide on merits and that (ii) the applications for restoration were filed within the time prescribed in Regulation 21 made under the Bombay Revenue Tribunal Act, 1958 which applied to the case. HELD:(i) In the context of section 20 and ;in view of the express language of section 17(1) of the Jagirs Abolition Act the Tribunal had no power to dismiss the appeals in question for non prosecution, but it was obligatory on its part of decide the appeals on merits and to record is decision even though there was default on the part of the appellant to appear in the appeal. [142 E F] (ii) The Tribunal also committed an error of law in dismissing as time barred the applications for restoration of the appeals made by the appellants. In Regulation 21 made under Bombay Revenue Tribunal Act, 1958 the time prescribed for such applications is thirty days from the date of receipt of the Tribunal 's order dismissing the appeal, and the appellants had filed their applications within the said period. [145 A, B] Regulation 21 lays down the procedure for dealing with applications for restoration made under Regulation 20 and the latter Regulation includes within its scope all appeals 'decided ex parte ' whether on merits or otherwise. It could not therefore be said that Regulation 21 did not apply to the case. [144 H]

The appellant was searched by a Customs Official and some bars of gold were found tied round his waist. Out of those bars some were of base metal and the rest of pure gold which borne foreign markes. The appellant had no permit from the Reserve Bank of India to import the gold. He was prosecuted and convicted under section 167(81) of the . He brought an appeal to the Supreme Court by Special leave. Held, that section 178A of the , is constitutional. The contension that before the presumption under s.178A of the could be raised the prosecution had to prove that the gold was of foreign origin was rejected and held that section 178A provides that when the goods are seized in the reasonable belief that they are smuggled goods the onus is on the accused to show that they are not smuggled. Collector of Customs, Madras vs Nathella Sampathu Chetty (1962) 3 S.C.R. p.786 followed.

No. 60 of 1958. Writ Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. H. J. Umrigar and A. G. Ratnaparkhi, for the appellant. section K. Kapoor and P. Gupta, for the respondents. April 5. The Judgment of the Court was delivered by SARKAR, J. The petitioners were born in India before the commencement of the Constitution. Sometime in 1947, they went away to the territory since included in Pakistan. They used to come to India from time to time and the last time that they came, was in April, 1956. Each time they came to India, they did so on passports issued by the Government of Pakistan. In December., 1956, they applied to the Collector of Nagaur in Rajasthan where they resided, for registration as citizens of India. On December 19, 1956, the Collector of Nagaur issued certificates of registration to them under section 5(l)(a) of the . Subsequently on February 5, 1957, two of the petitioners made applications for grant of citizenship certificates to their minor children under section 5(l)(d) of that Act. On February 6, 1957, an officer of the Collectorate of Nagaur took back the registration certificates issued to petitioners Nos. 2 and 3 on the 774 representation that they were required for recording in them the names of the minor children for whose registration as citizens of India applications had been made. On February 8, 1957, notices were issued by the Collector of Nagaur canceling the registration certificates issued to the petitioners and directing them to return to Pakistan within three days. The petitioners have presented this petition for a writ quashing the order of the Collector of Nagaur canceling their registration as citizens of, and requiring them to leave, India. The respondents to this petition originally were the State of Rajasthan and the Collector of Nagaur. Subsequently, under our order notice of the petition was given to the Union of India and the Union has appeared. The only question is whether the cancellation of the registration of the petitioners as citizens of India, was valid. It was said on behalf of the respondents that the Collector had power to cancel the registration under section 10(2)(a) of the Act. That provision states, amongst other things, that the Central Government may by order deprive certain citizens of India of their citizenship "if it is satisfied that the registration was obtained by means of fraud, false representation or concealment of any material fact". The petitioners" answer to this contention was that the cancellation of their registration was not by the Central Government but by the Collector. They also contended that their registration as citizens could not be cancelled under sub sec. (2) of section 10. They pointed out that subsection (2) started with the words "Subject to the provisions of this section" and contended that the powers under that subsection could, therefore, be exercised subject to the other provisions of section 10. They then referred to sub sec. (l) of section 1.0 which so far as relevant provided, "A citizen of India who is such by registration otherwise than under cl. (a) of sub section (1) of section 5 of this Act shall cease to be a citizen of India if he is deprived of that citizenship by an order of the Central Government under this section". They contended that they became citizens of India by registration under section 5(l)(a) of the Act and 775 they could not be deprived of their citizenship under sub section (2) of section 10. On the facts of this case it is unnecessary to express any opinion on these contentions. In any event, under cl. (a) of sub section (2) of section 10 a citizen can be deprived of his citizenship only if it is proved that the registration was obtained by means of fraud, false representation or concealment of any material fact. This power cannot, therefore, be exercised unless such fraud, false representation or suppression of a material fact exists. It was contended by the respondents that the petitioners had obtained registration as citizens of India by suppressing the fact that they had earlier applied to the Government of India for long term visas for permanent settlement in India which had been refused by that Government. The making of the previous applications and their rejection are no doubt material facts. The contention however that these facts were concealed is clearly unfounded. It has been proved to our satisfaction by the production of the original applications for registration made. by the petitioners that they had mentioned the fact that their applications for permission to settle permanently in India had been rejected by the Government. As we understood learned counsel for the respondents, he also accepted this position. The only other point that was taken by the respondents was that the Collector having the power to grant the registration certificate under the had by virtue of section 21 of the , and apart from section 10(2) of the , the power to cancel it. We are entirely unable to agree that a. 21 conferred on the Collector any such power. The orders mentioned in that section are not orders of the kind contemplated in section 5 of the . It seems to us therefore that the orders canceling the registration of the petitioners as citizens were wholly illegal and unsupportable and they are accordingly set aside. The petitioners will be entitled to the costs of this application. Petition allowed.

The petitioners were granted certificates of registration as Indian Citizens under section 5(1)(a) of the Citizenship Act, 955, by the Collector of Nagaur. Later the Collector passed orders canceling the certificates. The power to cancel was based on 773 section 10 (2)(a) Of the , and section 21 Of the . Held, that section 10(2(a) of the , had no application for, apart from any other considerations, that section could apply only where the registration was obtained by means of fraud, false representation or concealment of any material fact and no such thing had been proved. The Collector had no power under section 21 of the , either to cancel the order of registration as citizens which had been made by him since the orders mentioned in that section are not of the kind contemplated by section 5 Of the . The orders canceling the registration are set aside.

These appeals arose out of. two petitions filed in the High Court under article 226 of the Constitution challenging the constitutional validity of the Assam Fixation of Ceiling on Land Holding Act, 1957. The High Court in dismissing the petitions held that the impugned Act was protected by Art, 31A of the Constitution. The Act was a measure of agrarian reform and imposed limits on land to be held by persons in order to bring about its equitable distribution. The Act as originally passed as also its subsequent amendment received the assent of the President and this satisfied the requirement of the proviso to article 31A(1)(a) of the Constitution. The question, therefore, was whether the rights of the appellants which were taken away or abridged by the impugned Act were "rights" in relation to an estate within the meaning of article 31A(2)(b) of the Constitution. Held, that the expression " 'rights ', in relation to an estate" in article 31A(2)(b) of the Constitution is of a very wide amplitude and construed liberally, as it must be, and considered in the light of the provisions of sections 3(g) and 9 of the Assam Land and Revenue Regulation, 1886, the existing law relating to tenures, and the relevant definitions contained in the impugned Act, there could be no doubt that the rights of the petitioners, which the impugned Act extinguished, fell within the expression. Thakur Raghubir Singh vs The State of Ajmer, [1959] Supp. 1 S.C.R. 478, Sri Ram Reim Narain Medhi vs The State of Bombay, [1959] Supp. 1 S.C.R. 489 and Atma Ram vs The State of Punjab, [1959] Supp. 1 S.C.R. 748, referred to. A colourable legislation is one in which the Legislature transgresses the lawful limits of its legislative powers ,and "conceals its real purpose under the cover of apparently legitimate and reasonable provisions and thus seeks to do indirectly what it cannot do directly. K. G. Gajapathi Narayan Deo vs The State of [1954] S.C.R. 1, referred to. 725 It was not correct to say that the impugned Act was a colourable legislation whose concealed purpose was to make profit by disposing of land in the manner provided by Ch. III or that by pith and substance it was a profit making measure or that sections 16 and 18 of the Act were devices to that end. This is broadly contradicted by the whole object of the Act which is a measure of agrarian reform, writ large on all its provisions and clearly negatived by section 4 Of the Act which provides that in no case can the payment made by the tenant in getting the settlement exceed the amount of compensation payable by the Government in acquiring the land.

The two petitioners were apprehended while attempting to smuggle a huge amount of Indian and foreign currency and other contraband goods out of India and the Collector of Central Excise and Land Customs passed orders confiscating the seized goods and imposing heavy personal penalties on both of them under 275 section 167(8) of the Sea Customs Act. On a subsequent complaint made by the Customs Authorities on the same facts, the petitioners were convicted and sentenced by the Additional District Magistrate to various terms of imprisonment under section 23, read with section 23B, of the Foreign Exchange Regulation Act, section i67(8I) of the Sea Customs Act and section 120B of the Indian Penal Code. The Additional Sessions judge in appeal affirmed the said orders of conviction and sentences and the High Court refused to interfere in revision. It was contended on behalf of the petitioners, who had, at an earlier stage, made an unsuccessful attempt to move this Court under article 32 and have the prosecutions quashed, that the orders of conviction and sentences passed on them by the Courts below infringed the constitutional protection against double jeopardy afforded by article 20(2) Of the Constitution. Held, (Per Das, C. J., Bhagwati, B. P. Sinha and Wanchoo, Jj., Subba Rao, J., dissenting) that the contention was without substance and must be negatived. In order to sustain a plea of double jeopardy and to avail of the protection of article 20(2) of the Constitution it was incumbent to show that (1) there was a previous prosecution, (2) a punishment and (3) that for the same offence, and unless all the three conditions were fulfilled the Article did not come into operation. The word 'prosecution ' as used in that Article contemplated a proceeding of a criminal nature either before a court or a judicial tribunal. Maqbool Hussain vs The State of Bombay, ; , relied on. The insertion of section 187A into the Sea Customs Act by the amending Act of 1955, left no scope for doubt that the hierarchy of Authorities under that Act functioned not as Courts or judicial tribunals but as administrative bodies, even though in recording evidence or hearing arguments they acted judicially. The words " offences " and " penalties " used by the Act could not have the same meaning as in Criminal Law and a penalty or confiscation ordered under section 167(8) of the Act could not be a punishment such as is inflicted by a Criminal Court for a criminal offence. Sewpujanrai Indrasanrai Ltd. vs The Collector of Customs and others; , , referred to. Nor were the Customs Authorities invested with the powers of a Criminal Court under the Schedule to section 167 and the procedure laid down by Ch. XVII of the Act, and any orders passed by them either in rem or in personal, by way of confiscation of the goods or imposition of penalties on the person, could only be in the nature of administrative ones made in the interest of revenue and could not bar a criminal prosecution. Morgan vs Devine, ; and United States of America vs Anthony La Franca, ; , considered. 276 The proceedings against the petitioners before the Collector of Customs under section 167(8) of the Sea Customs Act could. not therefore, be a prosecution within the meaning of article 20(2) Of the Constitution and the petitioners were not put to double jeopardy. Per Subba Rao, J. The prosecution of 'the petitioners before the Magistrate and the punishment inflicted on them directly infringed article 20(2) of the Constitution. There can be no inconsistency in an authority under an Act functioning in an administrative capacity in respect of certain specified duties while it acts as a judicial tribunal in respect of others, and the question as to which of them it discharges in a judicial capacity has to be decided on the facts of each case and in the light of well settled characteristics of a judicial tribunal. Cooper vs Wilson, and Venkataraman vs Union of India; , , relied on. Although this Court has held that the Sea Customs Autho rities in adjudging confiscation do not function as judicial tribunals but as mere administrative authorities, the question as to whether imposing personal penalties they act as judicial tribunals still remains open. Maqbool Hussain vs The State. of Bombay, ; and Sewpujanrai Indrasanrai Ltd. vs The Collector of Customs, ; , explained. An examination of the entire scheme of the Sea Customs Act leaves no manner of doubt that the Customs Authorities act as judicial tribunals so far as offences under section 167 Of the Act are concerned. The word 'prosecuted ' used in article 20(2) of the Constitution is comprehensive enough to include a prosecution before an authority other than a Magistrate or a Criminal Court, and the offences described in section 167 Of the Sea Customs Act are offences within the meaning of the General Clauses Act and the Indian Penal Code and the penalties prescribed therefor are nothing but punishments inflicted for those offences either by the Customs Authorities or the Magistrate. The question of the identity of an offence has to be deter mined on the facts of each particular case and the real test is whether the previous prosecution and punishment were based on the same facts on which rested the subsequent prosecution and punishments

The petitioner was a Deputy Inspector of Schools and a member of the Education department of the respondent State. On September 2, 1953, the Director of Public Instruction passed an order directing a censure to be recorded in the character roll of the petitioner. On March 5, 1960, he was reverted to the Lower Division of the Subordinate Educational Service, as a result of an inquiry into certain charges. He filed a suit challenging the two orders. On August 5, 1961, the Munsiff passed an order restraining the respondent from enforcing the order dated March 5, 1960. On April 3, 1962, the temporary injunction was vacated by the Subordinate Judge. On April 11, 1963, the suit was decreed and the respondent was prohibited from enforcing the order dated March 5, 1960. This decree was set aside in appeal by the Subordinate Judge on June 24, 1964, and the petitioner 's second appeal was dismissed by the High Court on February 11, 1965. On August 5, 1966, the Director of Public Instruction passed an order that the petitioner 'having not been on his duties for more than five years since March 1, 1960 has ceased to be in Government employ since March 2, 1965 under r. 76 of the Bihar Service Code. ' The petitioner having completed 58 years of age addressed a letter to the Director of Public Instruction on July 18, 1967 requesting him to arrange for the payment of her. pension, and on June 12, 1968 the Director of Public Instruction passed orders stating that under r. 46 of the Bihar Pension Rules he was not entitled to any pension. The petitioner filed the present writ petition under article 32 challenging the various orders. HELD: (1) No relief could be granted in respect of the orders dated September 2, 1953 and March 5, 1960, as, (a) they were already covered by the decision of the High Court in second appeal. (b) no relief could be granted with respect to an order passed as early as 1953; and (c) the orders did not infringe any fundamental rights of the petitioner. [652G H 653A B] (2) The order dated August 5, 1966, declaring, under r. 76 of the Service Code that the petitioner had ceased to be in Government service should be set aside. [653 A B] (a) The essential requirement for taking action under the said rule is that the government servant should have been continuously absent from duty for over five years. Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years. Admittedly the petitioner, in the present case, was on duty till March 10, 1960 and he ceased to attend to his duty only from March 635 11, 1960. Therefore, the order stating that he 'ceased to be in government employ on March 2, 1965, was on the face of it erroneous. ' [643C D, E; 644A C] (b) Assuming that the order should be read that the petitioner was not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966 the date of the order even then, the order would be illegal. From August 5, 1961, the date of temporary injunction granted by the Munsiff till April 3, 1962, when that order was vacated by the Subordinate Judge, the Department did not allow the petitioner to join duty in the senior post in spite of several letters written by him. Again on April 11, 1963 when the Munsiff granted a decree in favour of the petitioner, the respondent did not obtain any stay order from the appellate court, and so, the decree of the trial court was in full force till it was set aside in appeal on June 24, 1964. During that period, that is, from April 11, 1963 to June 24, 1964 the petitioner wrote several letters requesting the respondent to permit him to join duty in the senior grade, but the respondent did not permit him to do so. Therefore, there was no question of the petitioner being continuously absent from service for over 5 years during the period referred to when he was willing but the respondent did not allow him to serve, and hence, r. 76 of the Service Code was not applicable. [644E F; 645A D,G; 646D H; 647A B,E F] (c) Even if the r. 76 was applicable and it was a question of automatic termination of service, article 311 applies to such cases also. According to the respondents a continuous absence from duty for over five years apart from resulting in the forfeiture of the office also amounts to misconduct under r. 46 of the Pension Rules disentitling the office to receive pension. The respondent did not give an opportunity to the petitioner to show cause against the order proposed. Hence there was violation of article 311. [647GH ; 648D E] Jai Shankar vs State of Rajasthan, ; , followed. (3) The order dated June 12, 1968 stating that under r. 46 of the Pension Rules the petitioner was not entitled to any pension should also be set aside. [649C] Payment of pension under the rules does not depend upon the discretion of the State Government but is governed by the rules and a government servant, coming within those rules is entitled to claim pension. Under r. 46 a Government servant dismissed or removed for misconduct, insolvency or inefficiency is not eligible for pension. In the present case it was contended that the petitioner 's absence for over five years, amounted to misconduct and inefficiency in service. But when the order dated August 5, 1966 has been held to be illegal then the order dated June 12, 1968 based upon it also falls to the ground. [649B C;D H;65OA B] (4) The grant of pension does not depend upon any order. It is only for the purpose of quantifying the amount having regard to the service and other allied matters that it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of any such order but by virtue of the rules. The right of the petitioner to receive pension is property under article 31(1) and by a mere executive order the State had no power to withhold it. Similarly, the said claim is also property under article 19(1) (f). It, therefore follows, that the order dated June 12, 1968 denying the petitioner the right to receive pension affected his fundamental right and as such the writ petition was maintainable. [650G H; 652B C, D F] K. R. Erry vs State of Punjab, I.L.R. [1967] Punjab & Haryana 279, (F.B) approved. 636 (5) The bar against the Civil Court entertaining any suit relating to the matters under the Pension Act does not stand in the way of a writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.

Sub section (2) Of section 30 of the Ajmer Merwara Municipalities Regulation, 925, as amended, provided that " every person who would be entitled under the Representation of the People Act, 1950 (XLIII of 1950) to be registered in the electoral roll for a Parliamentary Constituency if that Constituency had been co extensive with the Municipality, and whose name is registered in the electoral roll for the Parliamentary Constituency comprising the Municipality, shall be entitled to be enrolled as an elector of the Municipality"; and section 43 enabled the Chief Commissioner to make rules consistent with the Regulation for the preparation and revision of electoral rolls and the adjudication of claims to be enrolled and objections to enrolment. In exercise of this power the appellant framed Rules which, inter alia, provided that the electoral roll for the particular Municipality shall be the same as the final printed roll for the Parliamentary Constituency representing the area covered by the Municipality. He notified an election programme and also authenticated and published an electoral roll on August 8, 1955. The respondent whose father 's name was recited wrongly in the electoral roll applied for rectification of the mistake in the Parlia mentary Electoral Roll, on August 10, 1955, but it was rejected on the ground that the roll of the Municipal elections had been finally published on August 8, 1955, and therefore no correction could be made. The respondent challenged the validity of the notification and the electoral roll. Held, that under section 30 (2) Of the Ajmer Merwara Municipalities Regulation, 1925, the electoral roll for the Parliamentary constituency was only treated as the basis for the electoral roll of the Municipality and that the rules in so far as they made no provision for the revision of the electoral roll, for the adjudication of claims to be included therein or for entertaining objections to such inclusion, were defective and, therefore, the electoral roll of the Ajmer Municipality which was authenticated and published by the appellant on August 8, 1955, was not in conformity with the provisions of section 30 (2) and the relevant,provisions of the Regulation 69 and could not form the basis of any valid elections to be held to the Ajmer Municipal Committee.

The petitioner in Petition No. 143 was the Moopil Nair of the Kavalappara sthanam and, as the sthanee, claimed to be the sole proprietor of the sthanam properties. The respondents Nos. 2 to 17, who were the junior members of the Kavalappara tarward or family, resisted the claim on the ground that the properties were tarward properties and they had rights in them. There was litigation between the parties and ultimately the Privy Council held in favour of the petitioner. The petitioner transferred some of the properties to his wife and two daughters and son and they were the petitioners in the two other petitions. The parties were governed by the Marumakkathayam Law and in 1955 the Madras Legislature, purporting to remove certain misapprehensions evident in decisions of courts, passed the Madras Marumakkathayani (Removal of Doubts) Act, 1955 (Act 32 of 1955) which by section 2 provided as follows: " 2. Certain kinds of sthanam properties declared to be tarward properties : Notwithstanding any decision of Court, any sthanam in respect of which (a)there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarward, or (b)the members of the tarwad have been receiving main tenance from the properties purporting to be sthanam properties as of right, or in pursuance of a custom or otherwise, or (c)there had at any time been a vacancy caused by there being no male member of the tarwad eligible to succeed to the sthanam, shall be deemed to be and shall be deemed always to have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which the provisions of the Madras Marumakkathayam Act, 1932, (Madras Act XXII Of 1932), shall apply." 317 Immediately after the publication of the Act, the respondents Nos. 2 to 17, published notices in the press that by reason of the passing of the Act, Kavalappara estate had become their tarwad property and that rents could be paid to the sthanee only as the Karnavan of the properties and not otherwise. The notices further stated that the donees under the two deeds of gift executed by the sthanee were not entitled to the properties conveyed to them and should not be paid any rents at all. One of the respondents filed a partition suit and others also contemplated doing the same. The petitioners sought for a writ of mandamus or any other writ or order directing the respondents to forbear from enforcing the impugned Act against the sthanee and the sthanam estate and declaring the Act to be unconstitutional and invalid. Preliminary objection was raised on behalf of some of the respondents as to the maintainability of the petitions and it was contended that (1) the prayer for a writ of mandamus Was not maintainable since there was an adequate remedy in the partition suit filed by one of the respondents ; (2) that violation of right of property by private individuals was not within the purview of article 19(1)(f) or article 31(1) and the remedy was not by way of application under article 32; (3) that no application under article 32 could be maintained until the State had taken or threatened to take any action under the impugned law that would infringe fundamental rights; (4) that the proceeding under article 32 could not be converted into or equated with a declaratory suit under section 42 Of the Specific Relief Act in and (5) that this court could not, on an application under article 32, embark upon an enquiry into disputed questions of fact. Held (per Das, C. J., Bhagwati, Sinha and Subba Rao, jj.), that all the contentions must be negatived and all the preliminary objections must fail. The right to enforce a fundamental right conferred by the Constitution was itself a fundamental right guaranteed by article 32 of the Constitution and this court could not refuse to entertain a petition under that Article simply because the petitioner might have any other adequate, alternative, legal remedy. Rashid Ahmed vs Municipal Board, Kairana, ; and Romesh Thappar vs The State of Madras, [1950] S.C.R. 594, referred to. In the instant cases as the grievance of the petitioners was primarily against the impugned Act passed by the Madras Legislature, which was a State as defined by article 12 of the Constitution and the dispute was not one between two sets of private individuals but between the petitioners on the one hand and the State and persons claiming under a law made by the State on the other, article 32 must apply. P.D. Shamdasani vs Central Bank of India Ltd., [1952] S.C.R. 391, distinguished and held inapplicable. Where an enactment such as the impugned Act, unlike 318 others that contemplated some further action to be taken by the State after the enactment had come into force, automatically took away or abridged a person 's fundamental rights immediately it came into force, there was no reason why the aggrieved person should not immediately be entitled to seek the ' remedy under article 32 Of the Constitution. State of Bombay vs United, Motors (India) Limited, ; and Himmatlal Harilal Mehta vs The State of Madhya Pradesh, , referred to. In view of the language used in section 2 of the impugned Act and its effect, there could be no doubt that the petitioners could legitimately complain that their fundamental right to hold and dispose of the sthanam properties have been violated by the action of the Legislature. Article 32 of the Constitution conferred wide powers on this Court and such powers were not confined to the issuing of prerogative writs alone. In appropriate cases, this court had the right in its discretion to frame its writs or orders suitable to the exigencies created by enactments. It was clear on the authorities that this Court could, where the occasion so required, make even a declaratory order with consequential relief under article 32 of the Constitution. Chiranjit Lal Chowdhury vs The Union of India, [1950] S.C.R. goo, Rashid Ahmed vs Municipal Board, Kairana, [1950] S.C.R. 566, T. C. Basappa vs T. Nagappa, ; and Ebrahim Vazir Marat vs The State of Bombay, [1954] S.C.R. 933, relied on. Maharaj Umeg Singh vs The State Of Bombay, [1955] 2 S.C.R. 164, considered. This court would fail in its duty as the custodian and pro tector of the fundamental rights if it were to decline to entertain a petition under article 32 simply because it involved the determination of disputed questions of fact. Clause (2) of article 32 conferred on this court the power to issue directions or orders or writs of various kinds mentioned therein and in dismissing a petition, it had either to hold that any particular writ asked for was not appropriate to the occasion or that the petitioner had failed to establish a fundamental right or its breach . In either case, however, it had to decide the petition on merits. Chiranjit Lal Chowdhuri vs The Union of India, [1950] S.C.R. 869,Kathi Raning Rawat vs The State of Saurashtra, ; and Ramkrishna Dalmia vs Shri ' justice section R. Tendolkar; , , referred to. In appropriate cases opportunity might also be given to the parties to establish their cases by further affidavits, or by issuing a commission or even by setting the application down for trial on evidences. Per Wanchoo, J. If the petitions were based solely on the infringement of article 14, there could be no doubt that they would not be maintainable. Even though they were based on the 319 infringement of article 19(1)(f) also, their maintainability would still be in doubt in the absence of any further provision in the impugned Act for its direct enforcement by the State.

By an election petition two electors of the constituency, the appellants, challenged the election of the first respondent to, the Mysore Legislative Assembly in 1967 from the Jamkhandi constituency. It was alleged inter alia that the first 'respondent had ceased to be a person ordinarily resident within the constituency during the period relevant to the 1967 General Elections, and the validity of the entry of his name on the Electoral Roll was questioned; it was claimed that he was not therefore qualified to stand for election from the constituency. The petition also contained allegations of corrupt practices including misuse by certain Police Officers of their position to prevent voters from voting freely, and malpractices by the Presiding Officer at the time of polling, etc. After framing an issue on the question and taking the view that the Court had jurisdiction to determine the validity of the inclusion of the first respondent 's name as an elector on the Electoral Roll, the trial judge held on a consideration of the evidence, that the petitioners had failed to prove he first respondent was not an elector and was not qualified to stand for election from the constituency. The High Court also rejected the allegations of corrupt practices and dismissed the petition On appeal to this Court, HELD : (i) Under section 30 of the Representation of the People Act, 1950, no civil court shall have jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled for registration in an Electoral Roll for a constituency. There are elaborate rides which have be en promulgated for preparation and revision of the Electoral Rolls, namely, Electors ' Rules 1960. The conditions about being ordinarily resident in a constituency for the purpose of registration are meant for that purpose alone and have nothing to do with the disqualifications for registration which are prescribed by section 16 of the Act of 1950, which alone are relevant to the definition of an "elector" as given in section 2(1)(e) of the Act of 1951. The entire scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an Electoral Roll of a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless some question of violation of the provisions of the Constitution is involved. The present case did not also involve any violation or infringement of Article 173 or any other provision of the Constitution. [,615 H] The question whether respondent No. 1 was ordinarily resident in Jamkhandi constituency during the material period and was entitled to 612 be registered in the Electoral Roll could not therefore be the subject matter of enquiry except in accordance with the provisions of the Act of 1950. Under section 100(1) (d) an election can be declared void only if the result of the election, in so far as it concerns a returned candidate, has been materially affected by any non compliance with the provisions of the Constitution or of the Act of 1951 or of any rules or orders made thereunder. Nothing could be clearer than the ambit of this provision. It does not entitle the court in an election petition to set aside any election on the ground of non compliance with the provisions of the Act of 1950 or of any rules made hereunder with the exception of section 16. [617 E] Durga Shankar Mehta vs Thakur Raghurai Singh & Others, [1955] 1 S.C.R. 267; K. Sriramulu vs K. Deviah ; Roop Lal Mehta vs Dhan Singh and Others ; referred to. On the evidence, no reasons were shown for this court to differ from the findings of the Trial Judge on the allegations of corrupt practices. Meghraj Patodis vs R. K. Birla & Others, Civil Appeal No. 1094/69 dated 10 9 1970; referred to.

The first petitioner, who had migrated to West Pakistan, applied to the High Court of Madhya Bharat for a writ of abeas corpus for directions to produce petitioners 2 and 3, his minor children, before the Court on the allegation that they were wrongfully confined and, upon the dismissal of the said application, applied to the District Judge of Ratlam under the Guardian and Wards Act for his appointment as guardian of the person and property of the said minors. The District judge rejected he application and appointed the second respondent as such Guardian. The first petitioner appealed to the High Court against the said order of the District judge but that appeal was Dismissed. He applied for special leave to appeal to this Court but that application was also rejected. Thereafter the first Petitioner, as natural guardian of petitioners 2 and 3, filed the present petition under article 32 of the Constitution. His casee in substance was that the interest of the second respondent was adverse to that of the minors, that he had misappropriated their property and that the first respondent, the State of Madhya Bharat, was bound to take steps to protect the property of the minors which it had failed to do and had thus rendered itself liable to make good the loss sustained by the minors in consequence. Held, that the petition was wholly misconceived, and must be dismissed. The Court can exercise jurisdiction under article 32 of the Constitution only in enforcement of the fundamental rights guaranteed by Part III of the Constitution. Where on account of the decision of a court of competent jurisdiction, the right alleged by the petitioner does not exist and therefore its infringement cannot arise, this Court cannot entertain a petition under that Article for protection of the alleged right. A claim as to denial of equality before the law or the equal protection of the laws can be made against executive action or against legislative process but not against the decision of a court of competent jurisdiction. Nor can an order of this Court rejecting an application for special leave under article 136 of the Constitution be circumvented by an application for a writ under article 32.

No. 120 of 1959. Writ Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. Bhagirath Das and, B. P. Maheshwari, for the petitioner. N. section Bindra and D. Gupta, for the respondent. April 7. The Judgment of the Court was delivered by 824 SARKAR, J. The petitioner is a dealer registered under the Punjab General Sales Tax Act. He filed returns of his sale turnovers for the four quarters of the financial year ending on March 31, 1955, and likewise, for the four quarters of the financial year ending on March 31, 1956. In respect of each year the Sales Tax Assessing Officer served three successive notices on him on March 7, 1958, April 4, 1958, and August 18, 1959, requiring him to attend with the documents and other evidence in support of his returns. In the last of the notices mentioned above it was stated that on failure to produce the documents and other evidence mentioned, the case would be decided "on best judgment assessment basis". The petitioner did not comply with any of the notices, but after the receipt of the last notice he presented this petition under article 32 of the Constitution challenging the right of the authorities to make a best judgment assessment. The question raised by the petitioner turns on section 11 of the Punjab General Sales Tax Act, relevant provisions of which are set out below. section 11. (1) If the Assessing Authority is satisfied without requiring the presence of registered dealer or the production by him of any evidence that the returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns. (2)If the Assessing Authority is not satisfied without requiring the presence of a registered dealer who furnished the returns or production of evidence that the returns furnished in respect of any period are correct and complete, he shall serve on such dealer a notice in the prescribed manner requiring him, on a date and at a place specified therein, either to attend in person or to produce or to cause to be produced any evidence on which such dealer may rely in support of such returns. . . . . . . . . . . . . . . . (4) If a registered dealer, having furnished returns in respect of a period, fails to comply with the terms of a notice issued under sub section (2), the 825 Assessing Authority shall within three years after the expiry of such period, proceed to assess to the best of his judgment the amount of the tax due from the dealer. The contention of the petitioner is that at the date of the notice last mentioned the Sales Tax authorities had no right to proceed to make any beat judgment assessment as the three years within which only such assessment could be made had expired before then. It seems to us that the contention of the petitioner is well founded. The learned counsel for the respondent, the assessing authority, also frankly conceded that he 'found it difficult to contend to the contrary. Sub section (4) of section 11 deals with the case of a dealer who has furnished returns in respect of a period and has thereafter been asked to produce evidence to support the returns but has failed to do so. The subsection provides that in such a case the assessing authority may proceed to make an assessment which to the best of his. judgment should be made irrespective of the returns. The reason for this provision is that the correctness of the returns having been doubted by the assessing authority, the dealer has not availed himself of the opportunity afforded to him to remove these doubts. The sub section however provides that the power can be exercised within the three years mentioned in it. Quite plainly, the power cannot be exercised after these three years have gone by. The question is, how to compute the three years? The sub section 'says "within three years after the expiry of such period". So the three years have to be counted from the expiry of the period mentioned. What then is that period? The words are "such period". The period referred therefore is the period mentioned earlier. in the sub section, and that is the period in respect of which returns had been furnished by the dealer. This is also made clear by sub section (1) of section 11. That deals with a case where the returns are accepted. Both sub sections (1) and (4) deal with returns for the same period. Now section 10(3) provides that 104 826 every registered dealer shall furnish such returns by such dates and to such authority as may be prescribed" "Prescribed" means prescribed by rules framed under the Act. Under r. 20 of these rules, a registered dealer like the petitioner, had to furnish returns quarrerly. The rules define "return period" as "the period for which returns are prescribed to be furnished by a dealer". It would therefore appear that when sub sec. (4) of section 11 talks of "returns in respect of a period", that refers in the case of the petitioner to the quarters in respect of which he submitted the returns. We when come to this that the three years within which the authority could proceed to make the best judgment assessment had to be counted from the end of each quarter in respect of which returns had been filed. Now the last of the quarters in respect of which the petitioner filed his returns ended on March 31, 1956. So the assessing authority could not proceed to make a best judgment assessment in respect of this quarter after March 31, 1959. In the case of the earlier quarters, of course, the three years had expired even prior to this date. It is not in dispute that the assessing officer had not proceeded to make any assessment on the petitioner at the date of any of the notices. In the present case therefore the notices given on August 18, 1959, that best judgment assessments would be made in respect of the quarters constituting the financial years 1955 and 1956, the last of which expired on March 31, 1956, were futile. No such assessments could be made in respect of any of these quarters after March 31, 1959. The petition must, therefore, be allowed. A writ will issue restraining the respondent from making any best judgment assessment on the petitioner for sales tax for any quarter of the financial years 1955 and 1956. The petitioner will get the costs of this petition. Petition allowed.

Under the Punjab General Sales Tax Act, 1948, a dealer had to furnish his return every quarter according to the Rules and was also required to furnish evidence in support of the return if called for, and if he failed to do so the assessing authority could proceed to make an assessment to the best of his judgment, but this power could he exercised "within three years after the expiry of the period". Held, that three years within which the authority could proceed to make the best judgment assessment had to be com puted from the end of such quarter in respect of which return had been filed.

By availing of its powers under sub section (2) of section 49 of the Gujarat Sales Tax Act, 1969 to exempt, in the public interest, any specified class of sales from payment of the whole or any part of the tax payable under the Act, the Government of Gujarat issued two notifications prescribing a lower rate of tax for goods manufactured within the State as compared to similar goods imported from outside the State. The petitioners, who are manufacturing electronic goods, including television sets etc., in factories located outside the State, challenged the validity of these notifications as violative of article 301 of the Constitution. The State Government contended that the rate of tax was reduced in order to provide as incentive for encouraging local manufacturing units and sought to draw support for its action from clauses (b) and (c) of article 39. Allowing the Petition and quashing the notifications aforesaid, ^ HELD: article 301 declares that subject to the provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free. Clause (1) of article 303 prohibits the legislature of a State from making any law giving, or authorising the giving of, any preference to one State or another, or making, or authorising the making of, any discrimination between one State and another. The terms of the prohibition are subject to article 304. Clause (a) of article 304 provides that the legislature of a State may, by law, impose on goods imported from other States any tax to which similar goods manufactured or produced in that State are subject so, however, as not to discriminate between goods so imported and goods so manufactured or produced. It is apparent that while a State Legislature may enact a law 769 imposing a tax on goods imported from other States, as is levied on similar goods manufactured in that State, the imposition must not be such as to discriminate between goods so imported and goods so manufactured. We do not think any support can be derived from the two clauses of article 39 to justify the reduction in the rate of tax in the case of goods manufactured locally. Clause (a) of article 304 is clear in meaning. An exception to the mandate declared in article 301 and the prohibition contained in cl. (1) of article 303 can be sustained on the basis of cl. (a) of article 304 only if the conditions contained in the latter provision are satisfied. [770H;771A B,772F G] Firm A.T.B. Mehtab Majid & Co. vs State of Madras & Anr., [1963] Suppl. 2 S.C.R. 435; Atiabari Tea Co. Ltd. vs The State of Assam and Ors. , ; ; The Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan & Ors., [1963] 1 S.C.R. 491 and H. Anraj etc. vs Government of Tamil Nadu etc., , relied on. (ii) The next question is whether, for the purpose of ensuring the same rate of tax between the petitioners and the local manufacturers, the levy of the higher rate of tax suffered by the petitioners should be quashed and they be held entitled to the levy of the lower rate applied to the local manufacturers, or, should the higher rate imposed on the petitioners be maintained and the notifications imposing the lower rate on local manufacturers be quashed. The grievance of the petitioners has arisen only because the local manufacturers have been favoured by a lower rate of tax. The rate levied on the petitioners is the rate prescribed under section 7 of the Act. That is the rate applied generally. It represents the normal standard of levy. The lower rate applied to local manufacturers has been applied by invoking sub section (2) of section 49 of the Act. It represents a departure from, or exception to, the general norm. In cases such as this, the Court should, when granting relief, choose the alternative which would give effect to the statutory intention. And, therefore, in this case what is called for is the quashing of the impugned notifications reserving a lower rate of tax for local manufacturers. [772H; 773A E]

This appeal by the Sales Tax authorities was directed against the judgment and order of the Orissa High Court, passed under article 226 of the Constitution, quashing five orders of assessment covering five quarters made against the respondents who carried on the business of collection and sale of Kendu leaves in the erstwhile Feudatory State of Pallaliara to which, on its merger into the province of Orissa on January 1, 1948, the provisions of the Orissa Sales Tax Act, 1947, were extended on March 1, 1949. On the same date the Government of Orissa issued a notification under section 4(1) of the Act which was in the following terms: " In exercise of the powers conferred by sub section (1) of Section 4 Of the Orissa Sales Tax Act, 1947 (Orissa Act XIV of 1947), as applied to Orissa State, the Government of Orissa are pleased to appoint the 31st March, 1949, as the date with effect from which every dealer whose gross turnover during the year ending the 31st March, 1949, exceeded Rs. 5,000 shall be liable to pay 521 under the said Act on sales effected after the said date Section 4 Of the Act, inter alia, provided : " (1) . with effect from such date as the Provincial Government may by notification in the Gazette, appoint, being not earlier than 'thirty days after the date of the said notification, every dealer whose gross turnover during the year immediately preceding the commencement of this Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notified. (2) Every dealer to whom sub section (1) does not apply shall be liable to pay under this Act with effect from the commencement of the year immedi ately following that during which his gross turnover first exceeded Rs. 5,000 ". The goods were admittedly delivered for consumption at various places outside the State and the Sales Tax Officer as well as the Assistant Collector in appeal, proceeding on the basis that the sales took place in the State, held that the respondents were liable to Sales Tax for all the five quarters, two of which fell before the commencement of the Constitution and three thereafter. The contention of the respondents before the High Court was that the notification under section 4(1) Of the Act was invalid as it ran counter to the provisions of that sub section and no part of that charging section could, therefore, come into force. It was further contended that the assessment for the three quarters following the commencement of the Constitution was invalid by reason or article 286 of the Constitution. The High Court found entirely in favour of the assessee : Held (per Das C. J., Venkatarama Aiyar, section K. Das and Vivian Bose, jj.), that the decision of the High Court in so far as it related to the three post Constitution quarters was correct and must be upheld. The orders of assessment for those quarters contravened both article 286 of the Constitution and section 30(r)(a)(1) of the Orissa Sales Tax Act and were without jurisdiction and must be set aside. So far as the two pre Constitution quarters were concerned, the assessees were clearly liable under section 4(2) of the Act. Per Das C. J. and Venkatarama Aiyar J. The first part of the impugned notification, appointing the date from which the liability was to commence, was in consonance with section 4(1) Of the Act and, therefore, clearly intra vires, whereas the second part, indicating the class of dealers on whom the liability was to fall, went beyond that section and must, therefore, be held to be ultra vires and invalid. But since the two parts were severable, the invalidity of the second part could in no way affect the validity of the first part which brought the charging section into operation and the assessees were liable for the two pre Constitution quarters under section 4(1) as well. Per section K. Das and Vivian Bose JJ. It would not be correct to say that the second part of the notification was a mere surplusage severable from the rest of the notification. Liability to pay the 522 tax under section 4(1) of the Act could arise only on the issue of a valid notification in conformity with the provisions of that sub section and as there was no such notification the assessees were not liable under section 4(1) Of the Act which did not come into operation. Subsections (1) and (2) Of section 4 are mutually exclusive, and their periods of application being different both could not apply at the same time and no notification was necessary to bring into operation sub section (2) Of the Act. The goods having been admittedly sold and delivered for consumption outside the State of Orissa, under article 286 (1)(a) read with the Explanation as also under section 30(1)(a)(1) of the Act, the sales were outside the State of Orissa and, consequently, the assessment for the three post Constitution quarters were without jurisdiction. The State of Bombay vs The United Motors (India) Ltd., ; and The Bengal Immunity Company Limited vs The State of Bihar, , relied on. Per Sarkar J. There could be no liability under section 4(1) Of the Act till a date was appointed thereunder, and where the notification, as in the instant case, fixing such a date, was not in terms of that sub clause, there was no fixing of a date at all and the sub clause could not come into play and no liability could arise under it. It was impossible to ignore the second part of the notification in question as a mere surplusage since the notification read as a whole had one meaning and another without it. The Government could not be heard to say that what it had said in the notification was not what it actually meant. Both the sub clauses Of section 4 having been brought into force at the same time by the same notification, they applied to all dealers together and contemplated a situation in which the liability of a dealer under sub cl. (1) might arise. It was apparent from the scheme of the Act that sub cl. (2) was not intended to have any operation till a date was appointed under sub cl. (1) and a liability under it might have arisen.

The plaintiff respondent filed a suit for partition of properties men the first defendant (plaintiff 's brother) was the Karta. After the filing of the suit the first defendant and his sons made a voluntary sale of some of the properties in suit by sale deed exhibit B7, to the appellant. Certain other suit properties mentioned in exhibit, B51 were sold at a public auction under the provisions of the Land Improvement Loans Act 19 of 1883 in connection with arrears of a loan taken by the first defendant for the purchase of a pump set. These properties were also purchased .by the, appellant. The plaintiff respondent challenged the validity of the sales under exhibit B7 and exhibit B51 relying on the doctrine of lis pendens embodied in section 52 of the Transfer of Property Act. The .trial court held that the sales were genuine and that the proper ties sold were joint family properties, negativing the claim of the first defendant that they were his individual properties. The doctrine of his pendens held to be applicable to the properties sold. In the decree for part however the trial court directed the Commissioner who was to divide the properties by metes and bounds to allot to the share of the first defendant, so far as possible, properties which were covered by exhibit B7 and B51. The High Court in second appeal held that although the sale under exhibit B7 was made to satisfy the decree in certain mortgage suits it was a voluntary sale and could not be equated with sales in execution of mortgage decrees which are involuntary. So far as the revenue sale under exhibit B51 was concerned the High Court after setting out the terms of section 7 of Act 19 of 1883 held that only that land sold was to be excluded from the purview of the principle of lis pendens for the improvement of which some loan was taken. It therefore modified the decrees of the Courts below by giving a direction that further evidence should be taken before ' passing a final decree to show what land could be thus excluded from partition. The High Court rejected the application of the appellant for leave to appeal to the Division Bench on 'the ground that no oral request immediately after delivery of judgment was made as provided in Rule 28 Order 4 of the Madras High Court Appellate Side Rules 1965. This Court however allowed special leave to appeal under article 136 of the Constitution. Apart from the writs the Court had to consider a preliminary objection requiring the appeal to be dismissed in limine. In this connection the validity of Rule 28 Order 4 also fell for consideration HELD : (i) Per Ray and Beg, JJ. Rule 28 of Order 4 of the Madras High Court Rules does not purport to affect the power to give the declaration contemplated by clause 15 of the Letters Patent. It is evident that the rule is most useful and necessary particularly when a period of thirty days only for filing an appeal has been prescribed by the . The judge pronouncing the judgment can decide then and there, in the presence of the parties or their counsel, whether the case calls for a certificate. In a suitable case, where a party is able to prove that it 140 was prevented due to some cause beyond its control from asking for leave at the proper time, the judge concerned may condone the delay or extend the time by applying section 5 of the . This salutary rule could not therefore be held to be ultra vires or invalid. [143 F H] Penu Balakrishna Iyer & Ors, vs Sri Ariya M. Ramaswami Iyer In the present ease although the appellant was not shown to have attempted any explanation of failure to apply for the certificate at the proper time, yet, the, special leave petition having been granted and the case having passed without objection, beyond the stage of interim orders and printing of records, the Court heard arguments on merits also. [144 F G] Per Sikri, C.J. (concurring) The High Court can regulate the time at which and the manner in which the application for certificate & WI be made. Rule 28 Order 4 does not take away any right conferred by cl. 15 of the Letters Patent. It only regulates the manner of the exercise of that right. Union of India vs Ram Kanwar, ; , referred to. (ii) Per Ray & Beg, JJ. Expositions of the doctrine of lis pendens indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject matter of litigation so that the parties litigating before them may not remove any part of the subject matter outside the power of courts to deal with it and thus make proceedings infructuous. [153C] The purpose of section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. In the present case the Courts had given directions to safeguard such just and equitable claims as the purchaser may have obtained without trespassing on the rights of the plaintiff respondent in the joint property involved in the partition suit before the Court. Hence, the doctrine of lis pendens was correctly applied. [153H, 154A] In regard to the sale under exhibit B7 the High Court had rightly distinguished cases cited on behalf of the appellant before it by holding that exemption from the scope of lis pendens cannot be extended to voluntary sales in any case. [149 A] An examination of the sale deed exhibit B7 disclosed that it was not confined to the satisfaction of decretal amounts. Other items were also found in it. The sale deed did not purport to be on behalf of the Hindu joint family of which the plaintiff and the first defendant could be said to be members. The sons of the first defendant were among the sellers but not the plaintiff. At most it could be a sale binding on the shares of the sellers. The first defendant as well as the appellant having denied that the properties in dispute were joint, could not take up the position that the sales were binding on the whole family. Therefore it could not be held that the assumption of the High Court that the voluntary sale could not bind the whole family, of which the first defendant was the Karta, was incorrect. Bishan Singh vs Khazan Singh, [1959] S.C.R . 878, distinguished. As regards the revenue sale under exhibit B51 the assumption that the dues could be realised as arrears of land revenue would only apply to the interest of the borrower so, far as clause 7(1)(a) of Act 19 of 1883 is concerned. The proviso enacts that even recoveries falling under section 7(1) (C) do not affect prior interests of persons other than the borrower or of the party which consents to certain loans. In the present case the borrower had himself taken up the case that the loan was taken by him individually, for the purpose of purchasing a pumping set installed. on the 141 land. It did not therefore follow that this liability was incurred On behalf of the joint family unless it amounted to an improvement of the joint land. Every transaction of the first defendant or in respect of joint property in his possession could not affect rights of other members. it was for this reason that section 7(1) (a) was not specifically applied by the High Court. But at the same time, the direction, that the properties sold should, so far as possible, be allotted to the first defendant meant that the purchaser could enforce his rights to them if they came to the share of the first defendant. [151D F] Where a statutory provision is relied upon for recovery of dues, the effect of it must be confined to what the statute enacts. Even under the English law the terms of the statute displace any claim based on the prerogatives of the Crown. And in no case can the claim whatever its basis, justify a sale of that property which does not belong to the person against whom the claim exists. [151H] Builders Supply Corporation vs The Union of India, and Attorney General vs Dekerysis Royal Hotel., Ltd., ; , referred to. Per Sikri C.J. (concurring) Section 42 of the Madras Revenue Recovery Act provides that all lands brought to sale on account of arrears of revenue shall be sold free of all encumbrances. The liability of the land to be sold under section

The appellants who were manufacturers of cigarettes and tobacco in the State of Bihar contested the levy of sales tax on sales effected by them during the financial years 1949 5o and 1950 51 on the ground that as a direct result of every sale effected by them the goods concerned were delivered outside the State of Bihar and were, therefore, exempted from tax liability under article 286(i)(a) of the Constitution. Both the Superintendent of sales tax and the Deputy Commissioner of sales tax, Bihar, overruled the objection of the appellants, and following a previous ruling of the Board of Revenue of Bengal in a case known as the Bengal Timber Case (61 of 1952) held the appellants liable to pay the tax. The appellants paid the tax demanded but filed an application in revision to the Board of Revenue, claiming a constitutional exemption from tax on every sale effected by them as a result of which goods were delivered outside the State of Bihar whether the delivery was for consumption in the State of first delivery or not. The Board passed the following order on the revision petition. " As regards the admitted despatches of the goods outside the State after the 26th January, 1950, when the Constitution came into force, the learned lower court has been guided by the decision of the Board in the Bengal Timber Case (No. 61 of 1952). But this ruling of the Board stands superseded by the subsequent decision of the Supreme Court in the United Motors Case According to the decision of the Supreme Court, no tax could be levied on despatches to the places outside the state after the 26th January, 1950, and on this point the petitions are allowed, and the sales tax officer directed to recalculate the amount of tax payable by the assessee ". The appellants taking the above order to be in their favour claimed refund of the tax already paid by them and the sales tax authorities contested the position and claimed that they were bound to refund the tax only on those sales wherein the goods were delivered outside the State for consumption in the State of first delivery. The department thereafter sought clarification of the above order. The Board refused to clarify or explain its order and passed an order saying that " no further clarification was really required in view of the specific reference to the judgment of the Supreme Court in the United Motors Case ". Thereafter as the authorities still refused to refund the balance of the tax the appellants filed two applications in the High Court for the issue of a writ of mandamus to compel the refund. The High Court held that the Board 's decision that sales in which the goods were delivered outside the State for consumption, not in the State of first delivery but in other States were also exempted from tax, was wrong and that the appellants were not entitled to a writ of mandamus for enforcing a wrong order. On appeal by special leave, Held, that the proper construction of the Board 's orders was that the sales tax officer was directed to decide the relief that 108 should be given to the assessee on the officers ' interpretation of the decision of this Court in the United Motors Case. The Board did not determine the effect of that judgment and did not decide that every sale in which the goods were delivered outside the State of Bihar was exempted from liability to tax. The principle that a subordinate tribunal should not refuse to carry out the directions of a superior tribunal was therefore not applicable to the instant case. Bhopal Sugar Mills vs Commissioner of Income tax, [1961] 1 S.C.R. 474, held inapplicable. The United Motors Case merely decided that sales in which goods were delivered outside the State for consumption in the State of first delivery would fall under the Explanation to article 286(1) of the Constitution and would therefore be exempted from tax liability, but it did not deal with other sales in which the goods thus delivered were for consumption, not in the State of first delivery but in other states. Such sales would on the order of the Board of Revenue which was binding on the appellant be liable to tax in accordance with the previous decision of the Board of Revenue in the Bengal Timber Case. State of Bombay vs United Motors (India) Ltd. and Ors., ; , explained and applied. Board of Revenue of the State in the Bengal Timber Case, 61 of 1952, referred to.

These Civil appeals and special leave petitions centred round one point, namely, the validity of the Bombay Motor Vehicles Tax Act, 1958 as amended by Section 3 of the Maharashtra Act XIV of 1987 and Section 6 of the said Act as amended by Maharashtra Act XXXIII of 1987 and the Maharashtra Act IX of 1988. Section 3 of the said Act XIV of 1987 added sub section (IC) to provide for the levy of one time tax at 15 times the annual rate on all motor cycles in the State. The said provisions further provided that in the case of motor cycles owned by a company or other commercial organisation, the one time tax was to be levied at thrice the rate. Section 6 of the said Act XIV of 1987 added sub section (6) to section 9, enabling a registered owner of a motor cycle or tricycle to obtain refund of `Lone_time tax" under certain conditions. Petitions were filed in the High Court by the respondents in the appeals and petitioners in the special leave petitions, challenging the amended provisions of the principal Act. The High Court held that (i) the levy of the one time tax was beyond the legislative competence of the State Legislature and also beyond Entry 57 of List II of the Seventh Schedule, and (ii) the provision for imposition of levy at thrice the rates on the vehicles owned by a firm or company, were neither discriminatory nor arbitrary. The High Court struck down Act XIV of 1987. The appeals by leave were filed by the State and the special leave petitions were fixed by the petitioners in this Court against the decision of the High Court. In the meanwhile, the Maharashtra Legislature enacted Maharashtra Act XXXIII of 1987, which deleted Section 3(4) of the principal Act as amended by the PG NO 482 PG NO 483 Maharashtra Act XIV of 1987, whereby the existing provisions of refund for temporary non user were made inapplicable in cases of motor cycles and tricycles, restricting the right of refund to Section 9(6) in the contingencies mentioned therein. It also introduced sub section (7) to section 9 conferring the right of refund in respect of motor cycles and tricycles in accordance with the rates specified in the Fifth Schedule. But the said schedule did not prescribe a separate rate of refund for the company owned vehicles. Therefore, the refund in respect of the company owned vehicles was the same as that payable to individual owned vehicles even though the tax paid on former class of vehicles was three times. Soon thereafter, the Maharashtra Legislature enacted Act IX of 1988, whereby the only relevant change for the present purpose was that the rate of refund was enhanced to three times in respect of the company owned vehicles. Before this Court, the appellant State submitted that the amendments enacted by the Maharashtra Acts XXXllI of 1987 and IX of 1988 had brought the principal Act as amended by the Maharashtra Act XIV of 1987 within the constitutional requirements of making one time tax 's regulatory and compensatory tax and that it was not necessary to decide if the Act as it stood when it was challenged before the High Court? was beyond the legislative competence of the State Legislature. The respondents in the appeals and the petitioners in the special leave petitions urged that as even after the amendment no refund was available in respect of a vehicle which had been registered for more than 13 years? the effect of that was that no refund al all was available in respect. of the tax paid for a vehicle for the 14th and 15th years. The impugned levy of tax ceased to be compensatory or regulatory and was void under Entry 57 of List II and was violative of Article 301 of the Constitution. Disposing of the appeals and dismissing the special leave petitions the Court. HELD: The tax imposed on the motor vehicles or a class of motor cycles would not be valid unless it is compensatory or regulatory or does not have any nexus with the vehicles using the roads. In such a case. the levy would be Section of the said Act XIV of 1987 added sub section (IC) to provide for the levy of one time tax at 15 times the annual rate on all motor cycles in the State. The said provisions further provided that in the case of motor cycles owned by a company or other commercial organisation, the one time tax was to be levied at thrice the rate. The fact that the act, as at present, did not provide for refund in the 14th and 15th years, did no make the law outside the competence of the State Legislature. he concept PG NO 484 of "regulatory and compensatory" tax does no imply mathematical precision of quid pro quo. [489E] After the amendment, the Act came with in the constitutional requirements of making he one time tax a regulatory and compensatory tax. It was true that the Act has no provided for refund in the 14h and 15h years but that does no make he law out sides the competence of the State Legislature. It is no mathematical precision that is necessary nor can it be. there is in the provisions as amended, as amended, a discernible and an identifiable object behind the levy and a nexus between the subject and the object of the levy, [491E F] Two principles have to be emphasised, firstly, that the tax must be regulatory and compenstaory and secondly, there must be no discrimination. A taxation law cannot claim immunity from the equality clause in Article 14 of the Constitution, but in view of the intrinsic complexity of fiscal adjustments of diverse elements, a considerable wide discretion and latitude in the matter of classification for taxation purpose is permissible. The life of Motor cycles and tricycles normally exceeds 25 years. Non refund for certain period is no conclusive of the matter. Even if mathematical provision is no possible, it cannot be said that it is wholly unmathematical. The collection of ax for a period of 15 ears at one point of time is a convenient method enabling the owner o use he vehicle for more than 25 years without having to pay the tax periodically and pay the enhanced tax at may be levied during the 25 years of life of the vehicle. Regulatory and compensatory tax can be levied to the extent e State is required to pay for rendering the services. [491G;492A C] The Act, as at present, is not violative of Article 145 of the Constitution. The fact that the company owned vehicles are taxed that three times the rate payable by individuals, does not make the legislation violatvie of Article 14. Histrocially, the company owned vehicles are always been taxed at a rate higher that the individually owned vehicles. he legislature has he power to distribute tax burden in a flexible manner and the Court would no interfere with the same. It could not be said that there was differentiation without any basis and as such there was discrimination. [492E H] In view of the principles applicable to the taxation laws and various other factors, the Maharashtra Act as amended from time to time does not suffer from any vice of being not regulatory or compensatory taxation nor from the vice of being violative of Article 14 of the Constitution, and the challenge to the provisions of the Act as amended PG NO 485 after the judgment of the High Court could not be maintained. [494G ;495A] After the amendments afore mentioned the Act does no suffer from the vice mentioned in the judgment of the High Court . The appeals were allowed thus, and the challenge made in the special leave petitions was dismissed. [495] The taxes would be realised in accordance with the Act and the necessary adjustments would be made accordingly. [495C] Bolani Ors. Ltd. vs State of Orissa. ; ; G.K. Krishnan vs The State of Tamil Nadu & Anr., [1975] 2 S.C.R. 715; Malwa Bus Service (P) Ld. vs State of Punjab and Ors. , ; ' International ouris Corporation vs State of Haryana & Ors., ; ; Income tax Officer, shillong & Anr. vs N. Takim Roy Rymbai, etc., ; Mrs. Meenakshi & Ors. vs, State of Karnataka & Ors., AIR 1983 SC 1283; Anant Mills Co. Ltd. vs State of Gujarat and Ors., [1975] 3 S>.C.R. 220; Khandige Sham Bhat & Ors. vs The Agricultural Income tax Officer; , and State of Karnataka vs K. Gopalakrishna Shenoy and Another, ; , refered to.

Civil Appeal No. 563 of 1975 filed in the Court was directed against the Judgment of the High Court in an Income tax Reference. The respondent (assessee) was a registered co operative Society, carrying on business of manufacture and sale of sugar. The respondent had established a fund called "Loss Equalisation and Capital Redemption Reserve Fund" to which it added, during the relevant accounting year, a sum of Rs.5,15,863 by deduction from the price payable by the respondent to its members for the supply of sugarcane received from the members. The deductions were made under bye law 50 of the Byelaws of the society, which was amended later. The Income tax Officer in assessing the respondent for the relevant assessment year held that the sum above mentioned represented a revenue receipt and was liable to be included in the taxable income of the assessee. On appeal, the Assistant Commissioner affirmed the view of the Income tax Officer, holding that the case had to be decided on the basis of the bye law as it stood during the relevant accounting year. The respondent assessee appealed to the Income tax Appellate Tribunal, which held that the amended bye law was operative even during the relevant previous year in view of the retrospective amendment thereof and that in view of the said amended bye law 50 the deposits made by the members by way of deductions from the price as contemplated in the bye law 50 were in the nature of permanent liabilities and hence they were capital receipts and not liable to be included in the taxable income of the assessee. The Tribunal directed that the said amount of Rs. 5,15,863 be deducted 1035 from the taxable income of the assessee. At the instance of the appellant, a reference was made to the High Court for the determination of the question whether the Income tax Appellate Tribunal was right in holding that the amount of Rs.5,15,863 was not a revenue receipt liable to tax. The High Court answered the question in the affirmative and in favour of the assessee. The Commissioner of Income tax moved this Court by this appeal against the decision of the High Court. The appellant contended that the amendment of the bye law 50, which was purported to be made with retrospective effect, could have no retrospective effect in law. There was no delegation of power to the respondent society to make bye laws with retrospective effect. Allowing the appeal, the Court, ^ HELD:The respondent society had no authority in law to amend its bye law 50 with retrospective effect. The amendment of bye law 50 could not have any retrospective effect and the amounts deducted from the amounts payable to members for the supply of sugarcane, would have to be dealt with as if they were deducted under the provisions of bye law 50 as it stood in the relevant accounting period. If the provisions of the unamended bye law were applied, it was clear that the amounts deducted by the respondent from the price payable to its members on account of supply of sugarcane were deducted in the course of the trading operations of the respondent and these deductions were a part of its trading operations. The receipts by way of these deductions must be regarded as revenue receipts and were liable to be included in the taxable income of the respondent. Those receipts could not be regarded as deposits. The receipts constituted by the deductions were really trading receipts of the assessee society and were liable to be included in its taxable income. The High Court was in error and the question referred must be answered in favour of the revenue. [1042A, G H;1044D E] Civil Appeal No. 564 of 1975 was filed against the judgment of the High Court in an income tax reference in which the question referred for determination was whether a sum credited during the year of account to the loss equalisation and capital redemption reserve fund by deposits received from producer members of the society under clause 50 of its bye laws was in the nature of a revenue receipt assessable to tax. Allowing the appeal, the Court, 1036 HELD:In view of its decision in Civil Appeal No. 563 of 1975, the Court answered the question referred in the affirmative and in favour of the revenue. [1045A] Income tax Officer, Alleppey vs M.C. Poonnoose and Ors., ; ; Hukam Chand etc. vs Union of India & others; , ; Co operative Central Bank Ltd. & Ors. vs Additional Industrial Tribunal, Andhra Pradesh & Ors., ; Dr. Indramani Pyarelal Gupta vs W.R. Nathu and others; , ; Chowringhee Sales Bureau P. Ltd. vs Commissioner of Income tax West Bengal, and Punjab Distilling Industries Ltd. vs Commissioner of Income tax Simla, , referred to.

Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, as amended from time to time provided that on the 1st day of April, 1957 styled as the "tiller 's day" every tenant shall subject to other provisions of the next succeeding sections be deemed to have purchased from his landlord free from all encumbrance subsisting thereon, on the said date the land held by him as a tenant if other conditions of the section are satisfied. By operation of this law, one Janardhan, the father of the respondent, became the "deemed purchaser" effective from April 1,1957, of the land bearing survey No. 1052 and F measuring 16 acres situated within the revenue limits of village Sonai Taluka Nawasa, District Ahmednagar which belonged to Tarachand Chopra. Subsequent to this admitted fact, several incidents took place which have led to the present appeal raising the question of the legal effect of the several steps taken by different persons; ignorant of the factum of Janardhan having become the deemed purchaser". They are (a) Landlord Tarachand died on August 12,1959, after two and a quarter years after Janardhan became the statutory purchaser; (ii) Tarachand executed a will, before his death, bequeathing the suit land to Ashoklal Gugale, a minor; (iii) the revenue authorities, who must be aware of the provisions of the Act, wrongly mutated the name of Ashoklal in the revenue records as the landlord in terms of the will; (iv) in spite of the mandatory duty imposed upon the Agricultural Lands Tribunal, under Section 32G, to issue notice to all tenants who under section 32 are deemed to have purchased the lands, all landlords of such lands and all other persons interested to appear before 238 it for the determination of the price of the land which is the subject matter of compulsory purchase, strangely accepted the plea for the postponement of the inquiry under section 32F of the Act and later again commenced the proceedings in the year 1967 and concluded the proceedings by its order dated July 13 1967 repeating the jurisdictional errors; (v) in the interregnum, Ashoklal through his next friend commenced proceedings in case No. 36 of 1967 in the Court of Tenancy Aval Karkoon for the recovery of the possession; (vi) the Tenancy Aval Karkoon, not only entertained the petition, but also got recorded two statements, on 5.10.1967, from Janardhan, "the deemed purchaser" to the effect that he had no objection to handing over the possession of the land to the landlord as he was old and could not cultivate the land personally and another from the present respondent to the same effect even though in the life time of his father Janardhan, he had no title to the land involved in the dispute, and, thereafter made the order dated October 6, 1967 exacting Janardhan from the land; (vii) this wholly null and void order enabled the minor landlord to sell the land by a registered deed on November 13, 1967 to one Haribhav and another, the former later transferred his interest in favour of some of the petitioners before the High Court; (viii) On October 6, 1971, Janardhan moved the Tribunal under section 32F of the Act to the effect that as the landlord Ashoklal had attained majority he was entitled to purchase the land; (ix) the Tribunal started the proceedings under section 32G and after bringing the present respondent on record due to the demise of Janardhan on November 29, 1976, went into the matter in depth, examined all previous orders and came to the conclusion that Janardhan having become the "deemed purchaser. ' all subsequent. proceedings were null and void, which was affirmed by tho Assistant Collector, the Maharashtra Revenue Tribunal and the High Court later; (x) a parallel proceeding initiated by the respondent for the recovery of possession was decided in his favour by all Courts including the High Court Dismissing the appeals by the special leave, the Court ^ HELD: 1:1 on the tiller 's day, the landlord 's interest in the land gets extinguished and simultaneously by a statutory sale without anything more by the parties, the extinguished title of the landlord is kindled or created in the tenant. That very moment landlord tenant relationship as understood ill common law or Transfer of Property Act comes to an end, the link and chain is broken. The absent non cultivating landlord ceases to have that ownership element on the land and the cultivating tenant, the tiller of the soil becomes the owner thereof. This is unquestionable, the landlord from the date of statutory sale is only entitled to receive the purchase price as determined by the Tribunal under section 32G. In other words, landlord ceases to be landlord and the tenant becomes the owner of the land and comes in direct contact with the state. Without any act of transfer inter vivos the title of the landlord is extinguished and is created simultaneously in the tenant making the tenant the deemed purchaser. It is an admitted position that on April 1, 1957 Tarachand was the landlord and Janardhan was the tenant Tarachand landlord was under no disability as envisaged by Section 32F. Therefore or April 1, 1957 Janardhan became deemed purchaser. [244 C G] 239 Sri Ram Ram Narain Medhi vs State of Bombay, [1959] Supp. I S.C.R. 489 @ 518 followed. If, in the instant case., Janardhan became the deemed purchaser on tillers ' day, the relationship of landlord and tenant between Tarachand and Janardhan came to be extinguished and no right could be claimed either by Tarachand or anyone claiming through him such as Ashoklal or the present purchasers on the footing that they are the owners of the land on or after April 1, 1957. [244 G H, 245 A] 2:1. Section 32F of the Bombay Tenancy and Agricultural Lands Act, 1948, has no application to the facts of the ease. Section 32F postponed the date of compulsory purchase by the tenant where the landlord is a minor or a widow or a person subject to mental or physical disability on the tillers ' day. Section 32F has an overriding effect over Section 32 as it opens with a non obstante clause. The combined effect of Section 32F and 32 would show that there the landlord is under no disability as envisaged by Section 32F the tenant of such landlord by operation of law would become the deemed purchaser but where the landlord is of a class or category as set out in section 32F such as a minor, a widow or a person subject to any mental or physical disability, the date o, compulsory sale would be postponed as therein provided. Now, if Tarachand the landlord was under no disability and he was alive on April 1, 1957 and he was the owner, his tenant Janardhan became the deemed purchaser. [245 A D] 2:2. If Janardhan became the deemed purchaser on April 1, 1957 all subsequent proceedings in which the Tribunal held that the date of purchase was postponed because the recorded owner Ashoklal was a minor were without jurisdiction. The Tribunal had absolutely no jurisdiction to proceed on the footing that date of sale was postponed. It is neither an incorrect order nor an erroneous order as was sought to be made out but Tribunal lacked tho jurisdiction to proceed under section 32F because when the proceedings under Section 32F were commenced, Janardhan had long since become the deemed purchaser. Therefore all subsequent proceedings were ab initio void and without jurisdiction. [245 D F] 2:3. When a Tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted with regard to the jurisdictional fact, its decision is a nullity and can be set up in collateral proceeding. The Tribunal clutched at a jurisdiction not vested in it and in such a situation it can not be disputed that the Tribunal lacked the jurisdiction to entertain any proceeding purporting to be between landlord and tenant on the erroneous assumption that tenant was still a tenant though he had long since become the deemed purchaser, The tenant has ceased to be a tenant much prior to the orders passed by the Tribunal on April 24, 1961 and July 13, 1967 holding that the date of compulsory purchase was postponed. The compulsory purchase by the operation of law had taken place as early as April 1, 1957 and that legal position cannot be wished away. [245 F H, 246 A Bl 240 3:1 When several orders passed by different authorities are wholly null and void and hence non est, such orders cannot thwart subsequent proceedings. The nullity can be set up in subsequent proceedings. The plea of estoppel by conduct also cannot be allowed to be raised, since a measure of agrarian reform cannot be permitted to be defeated by such devious means of the landlords trying to take advantage of any statement made contrary to their legally protected interest, in the absence of legal literacy and by such jugglery of orders of low level revenue officers who hardly knew what they were doing. [246 C H, 247 G] 3:2. In the instant case, even assuming Janardhan relinquished his right as a tenant, even then Ashoklal cannot recover possession as the land would be at the disposal of the Collector under Section 32P. Further, the posthaste steps taken by Ashoklal and others in transferring the lands to several others speak of malafides of the landlord. [246E F]

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.

A dispute between the respondent company and the Government of Bihar over the bills for the amount payable to tile company in respect of the construction works carried out by it for the Government was referred to arbitration. The agreement to refer to arbitration was executed on behalf of the Governor by L, an executive engineer, who had been specifically authorised to do so by a Secretary to the Government. The arbitrator made his award and sent copies thereof to the parties. The respondent applied to the Court under the provisions of the , for a decree in terms of the award. The State filed objections thereto and the matter was registered as a suit. While the suit was pending the arbitrator sent to the court a copy of the award duly signed by him for being filed as provided in the Act, and on the receipt thereof the respondent bad it validated on payment of the requisite stamp duty under section 35 of the Indian Stamp Act, 1899. The appellant, the State of Bihar, contended that no decree could be passed on the basis of the award on the grounds (1) that the agreement for reference to arbitration did not comply with the requirements of section 175(3) of the Government of India Act, 1935, inasmuch as it was not signed by the person authorised to do so under the notification issued by the Government of Bihar on April 1, 1937, in exercise of the powers conferred by section 175(3), and (2) that the instrument before the court was a certified copy and that under section 35 of the Indian Stamp Act, 1899, a copy Could not be validated or acted upon. Held, that section 175(3) of the Government of India Act, 1935, does not prescribe any particular mode in which authority must be conferred and that where authorisation is conferred ad hoc on any person, the requirements of the section must be held to be satisfied. 828 Held, further, that the award sent by the arbitrator to the court was the original and not a copy of the award and by applying the provisions of section 35 of the Indian Stamp Act, 1899, it was effectively validated. The Rajah of Bobbili vs Inuganti China Sitaramasami Garu (1899) L.R. 26 I.A. 262, referred to.

The Government referred an industrial dispute to Labour Court, Patna, and subsequently issued an order by way of corrigendum substituting "Ranchi" for "Patna". In proceedings before the Labour Court, Ranchi, objection was raised that once having made the reference to the Labour Court, Patna, the Government was not competent to cancel or withdraw that reference, so the Labour Court, Ranchi had no jurisdiction. The Labour Court, Ranchi rejected the objection. The High Court also rejected this Contention. In appeal to this Court: HELD: The alteration in the order of reference was a mere correction of a clerical error. because, by mistake, Patna had been mentioned in place of Ranchi in the first notification and the second notification merely corrected that mistake. Such a clerical error can always be corrected and such a correction does not amount either to the withdrawal of the reference from, or cancellation of the re ference to the Labour Court, Patna. [63F H]

The respondent was a firm carrying on business in different lines. It was assessed to income tax under section 23(4) of the Income tax Act, 1922 for the assessment year 1949 50 on the ground that notices issued under section 22(2) and (4) had not been complied with. Later on, that assessment 412 was cancelled. However, before the cancellation, it was found that an interest income of Rs. 88,737 in the shape of U.P. Encumbered Estates Act Bonds received by the respondent from third parties had escaped assessment as the assessee failed to disclose the same. The Income tax Officer issued a notice for the assessment year 1949 50 on the ground that a sum of Rs. 88,737 had escaped assessment in the said assessment year. After the cancellation of the assessment made under section 23(4), the Income tax officer, ignoring the notice issued by him under section 34(1)(a), included that amount in the fresh assessment made by him for the year 1949 50.The respondent appealed to the Appellate Assistant Commissioner who ordered the deletion of the sum of Rs. 88,737 from the assessment for the year 1949 50 and directed the same to be included in the assesment for the year ending 1948 49. Pursuant to the direction given, the Income tax Officer served a notice on the respondent under section 34(1). Against that notice the assessee filed a writ petition in the High Court for quashing the above mentioned proceeding on the ground that these were initiated beyond the time prescribed by a. 34. The High Court accepted the petition and quashed the notice on the ground that it was issued by the appellant beyond the ordinary period of limitation It also overruled the contention of the appellant that no period of limitation governed the notice in as much as the second proviso to section 34(3) was attracted to the facts of the case. The only direction which the Appellate Assistant Commissioner could give was one which was covered by section 31 of the Act and as the appeal before him was confined to a particular assessment year, the direction must necessarily be limited to a matter falling within that year. if the direction be treated as based on a finding recorded by Appellate Assistant Commissioner, that finding would have to be disregarded when applying the proviso. The appellant came to this Court by special leave. Held: (per B. P. Sinha, C.J., K. Subba Rao and N. Rajagopala Ayyangar JJ.). The proviso to sub section (3) of section 34 of the Indian Incometax Act, 1922 does not save the time limit prescribed under sub section (1) of section 34 in respect of an escaped assessment of a year other than that which is the subject matter of appeal or revision as the case may be and hence the notice under section 34(1)(a) issued in the present case was clearly barred by time. The jurisdiction of the High Court or the Supreme Court under section 66 or section 66(b) is a limited one and is confined only to the questions referred to them. Moreover, the questions referred by Tribunal cannot exceed its jurisdiction. Therefore the assessment or reassessment made under the said sections or Pursuant to the orders or directions made thereunder must necessarily relate to the assessment of the year under review, revision or appeal as the case may be. 'Me proviso to sub section (3) of section 34 does not confer any fresh power upon the Income tax Officer to make assessment in respect of the escaped incomes without any time limit. It only lifts the ban of limitation in respect of certain assessments made under certain provisions of the Act and the lifting of the ban cannot be so construed as to increase the jurisdiction of the tribunal Under the 413 relevant sections. The lifting of the ban was only to give effect to the orders that may be made by the appellate, revisional or reviewing Tribunal within the scope of its jurisdiction. If the intention was to remove the period of limitation in respect of any assessment against any person, the proviso would not have been added as proviso to sub section (3) which deals with completion of an assessment but would have been added to sub section (1) of section 34. The word 'finding ' covers only the material questions which arise in a particular case for decision by the authority hearing the. case or the appeal which, being necessary for passing the final order or giving the final decision in the appeal, has been the subject of controversy between the interested parties or on which the parties concerned have been given a hearing. The expression 'direction ' refers to a direction which the appellate or revisional authority is empowered to give under the law. The expression "any person" must be confined to a person intimately connected with the assessment of the year under appeal or revision. Held: per Raghubar Dayal and J. R. Mudholkar JJ. (dissenting): That the notice was not in contravention of the provisions of section 34 and hence could not be quashed on that ground. When an appeal is before an appellate authority, the whole matter is at large before it and there fore when a specific case is put before it by an assessee, it has both the power as well as the duty to give its finding thereon. The ground given by an assessee for claiming a reduction or annulment of assessment may be that the income upon which he had been assessed was not earned in the accounting period of the year to which the assessment pertained but in respect of a specified earlier or later year. The appellate authority is entitled to go into the whole question and come to a finding one way or the other. The finding of a tribunal is its conclusion on a point agitated before it and for a conclusion to amount to a finding, it is not necessary that it should be the final and ultimate conclusion. The contention of respondent that the second proviso to a. 34(3) enabling a notice to issue only to assessee in respect of escaped income without limit of time on the ground that the appellate authority has made a finding or direction in the proceeding before it makes a discrimination against such assessee because it does not lift the bar of limitation with regard to other assessees similarly situated but with regard to whom no finding has been made or direction given by appellate authority, was rejected. It was held that prima facie, there was a reasonable basis for the classification. The ground on which classification was made had a rational relationship with the object which was intended to be achieved by law, ie., to detect and bring to assessment the escaped income. Commissioner of Income tax vs section M. Chitnavis, (1932) L.R. 59 I.A. 290, Sir Kikabhai Premchand vs Commissioner of Income tax (Central), Bombay, pt. Hazart Lal vs Income tax Officer, Kanpur. Lakshman Prakash vs Commissioner of Income 414 tax, U.P., , A. section Khader Ismail vs Income tax Officer, Salem, (1963)48 I.T.R. 16, Simrathmul vs Additional Income tax Officer, Ootachamund, (1959)36 I.T.R. 41, Brindaban Chandra Basak vs Incometax Officer, , K. C. Thomas, First Income tax Officer. Bombay vs Vasant Hira Lal Shah , Prashar & Anr. V. Sasantsen Dwarkadas 49 I.T.R. (S.C.) 1, Kamlapat Hotilal vs Income tax Officer, , Hiralal Amrit Lal Shah vs K. C. Thomas, Income tax Officer, Bombay, , General Construction and Supply Co. vs Income tax Officer (8th) C Ward, Bombay, , Suraj Mal Mohata & Co. vs A. V. Visvanatha Sastri ; , A. Thangal Kunju Mudaliar vs M. Venkatachalam Potti & Anr. ; and Palaji vs Income tax Officer, Special Investigation Circle ; , referred to.

The appellant (holder of an inam in Madhya Pradesh) served a notice an his tenant, the respondent, terminating to tenancy on the ground that he wanted the land for personal cultivation and filed a suit for ejectment. The trial court decreed the suit. During the pendency of the appeal in the District Court, article 32 of 1954 was enacted, and pursuant to its provisions the hearing of the appeal was stayed. After the Madhya Pradesh Land Revenue Code came into force in 1959, the District Court held that by virtue of section 185 of that Code the respondent acquired the rights, of an occupancy tenant and dismissed the suit. The High Court confirmed the judgment of the District Court. In appeal to this Court, it was contended that : (i) the rights of an occupancy tenant arise in favour of a personl under section 185(1) (i) (a) only if there was between him and the landlord a subsisting tenancy at the date when the Code came into force and since under the law in force before the commencement of the Code, the respondent had ceased to be a tenant because of the notice terminating the contract of tenancy the respondent was not invested with the rights of an occupany tenant; and (ii) bi virtue of sections 261 and 262(2), the operation of section 185 is expressly excluded when a person, against whom ejectment proceedings have been instituted prior to the commencement of the Code in enforcement of a right then acquired, claims the status of an occupancy tenant. HELD : (i) The respondent acquired the right of an occupancy tenant under the Code, because the expression "tenant" in section 185 (1) (ii) (a) includes a person whose tenancy was terminated before the commencement of the Code. The definition of the expression "tenant" in the Code postulates a subsisting tenancy, but the position of a tenant prior to the date on which the Code was brought into force is not dealt with in the definition. In the context in which the expression "tenant" occurs in section 185(1), that definition could not be intended to apply in deter ining the conditions which invest a holder of land with the status of an occupancy tenant at the commencement of, the Code. Therefore having regard to the object of the enactment the expression should be ascribed the meaning it 'has in Act 32 of 1954. Under sections 3 & 4 of that Act a person who was inducted into the land as a tenant and who continued 'to hold the land at the commencement of the Act was entitled to protection against eviction and continue as tenant, notwithstanding that under the law in force prior to the commencement of the Act. the contractual relationship of landlord and tenant was determined. [432 D; 432 14 433 C] 428 There is no reason to think that the Legislature sought to make a A distinction between tenants of Inam land in section 185 (1) (ii) (a) and ryotwari sub lessees of other lands in section 185(1)(ii)(b). Therefore, if the expression "ryotwari sub lessee ' in section 185(1)(ii)(b) includes a sub lessee whose tenaure was terminated before the commencement of the Code, a tenant of inam land, whose tenancy has been terminated would also be included in the protection, provided at some time prior to the date on which the Code was brought into force, he was in possession of the land as a tenant, and he continued to hold the land till the date of the commencement of the Code. [434 E H] (ii) The provisions of the Code appeal to tenants in proceedings for ejectment pending at the commencement of the Code. The proviso to section 261 protects a right which had been acquired under a law repeated by the Code and the right could be enforced as if the code had not been passed. But the right to evict a tenant was governed by the general law of landlord and tenant and was not acquired under any repealed law. The proviso had no operation and a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law enacted in the Code. Therefore, the tenant could not ' be evicted otherwise than in the manner and for reasons mentioned in a. 193 of the Code but, personal requirement for cultivation of land is not a ground on which a claim for ejectment could be maintained. [435 G436 A] Section 262(2) is only procedural it provides that a civil court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, Which, if it had been instituted after the Code was passed would have been tried by a revenue court; and in the disposal of such a suit, the civil court will be governed by the procedural law applicable there to prior to the commencement of the Code. It does not nullify the statutory conferment of occupancy right upon persons in the position of tenants against whom proceedings were taken at the date when the Code was brought into force. [436 B D]

The respondents agreed to sell their agricultural land to the appellants. The title deeds and possession of the land were given to the appellants and both parties jointly applied to the District Deputy Collector, Thana Prant, under section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, seeking permission for the sale. The permission was refused on the ground that the intending purchaser had failed to obtain a certificate from the Collector under Rule 36(f) of the Bombay Tenancy and Agricultural Lands Rules 1956, that he intended to take to the profession of agricul ture and was capable of cultivating land personally. The appellants thereafter obtained the requisite sanction from the Additional Collector, Thana, in spite of the respond ents ' non cooperation. A suit by the respondents for de claring the agreement void in law was decreed by the Trial Court. In appeal, the High Court opined that the Prant Officer 's refusal to permit the sate had rendered the agree ment impossible of performance. Allowing the appeal, the Court. HELD: (1) The parties are governed by section 56 of the Contract Act according to which a contract becomes void only if something supervenes after its execution which renders it impracticable or impossible of performance. The order of the Prant Officer was not of such a catastrophic character. [519A C] Satyabrata Ghose vs Mugneeram Bangur & Co. & Anr. ; ; Smt. Sushila Devi & Anr. vs Hari Singh & Ors. and Tamplin Steamship Co. Lid vs Anglo Mexican Petroleum products Co. Ltd. , 403, applied. Joseph Constantine Steamship Line Ltd. vs Imperial Smelting Corporation Ltd. at 168, referred to. (2) The function which the Collector or the authorised officer discharges under the proviso to section 63(1) of the Bombay Tenancy and Agricultural Lands Act is an administra tive one and not judicial or quasi judicial. [519G H] The State of Madras vs C.P. Sarathy & Anr. AIR 1953 S.C. 53; A.K. Bhaskar vs Advocate General AIR 1962 Kerala 90; Shantanand vs Advocate General AIR 1955 All. 372; Shrimali Lal vs Advocate General AIR 1955 Raj. 166 and Abdul Kasim vs Md. Dawood AIR 1961 Mad. similarity marked. (3) The dismissal of a proceeding by an authority not on merits but merely on account of a formal defect will not attract the applicability of the general principles of res judicata and will not debar the authority exercising concur rent jurisdiction from entertaining the subsequent proceed ings for the same relief and passing proper orders on merits. [520 F H] Putali Mehati vs Tulia I.L.R. and Pethaparu mal vs Murugandi , applied.

On September 7, 1955, the appellant company entered into a contract with the respondents for the purchase of certain bales of jute cuttings to be delivered by the respondents in equal installments every month in October, November and December, 1955. Under cl. 3 of the agreement the sellers were entitled to receive the price only on their delivering to the buyers the full set of shipping documents. Clause 8 conferred on the sellers certain rights against the buyers such as the right to resell if the latter refused to accept the documents. Clause 14 provided that all disputes arising out of or concerning the contract should be referred to the arbitration of the Bengal Chamber of Commerce. As the respondents failed to deliver the goods as agreed the appellants applied to the Bengal Chamber of Commerce for arbitration. The respondents appeared before the arbitrators and contested the claim, but an award was made in. favour of the appellant. Thereupon the respondents filed an application in the High Court of Calcutta under section 33 of the , 184 challenging the validity of the award on the ground that the contract dated September 7, 1955, was illegal as it was in contravention of the notification of the Central Government dated October 29, 1953, issued under section 17 of the Forward Contracts (Regulation) Act, 1952, which declared that no person shall enter into any forward contract other than a nontransferrable specific delivery contract for the sale or purchase of raw jute in any form. . . The appellant pleaded (1) that on the terms of the arbitration clause the question whether the contract dated September 7, 1955, was illegal was one for the arbitrator to decide and that it was not open to the respondents to raise the same in proceedings under section 33 of the ; (2 ) that the respondents were estopped from questioning the validity of the award by reason of their having submitted to the jurisdiction of the arbitrators ; and (3) that, in any case, the contract was a nontransferrable specific delivery contract within section 2 (f ) of the Forward Contracts (Regulation) Act and was not hit by the notification dated October 29, 1933. Held, that : (1) the dispute as to the validity of the contract dated September 7, 1955, was not one which the arbitrators were competent to decide under cl. 14 and that in consequence the respondents were entitled to maintain the application under section 33 of the . When an agreement is invalid every part of it including the clause as to arbitration contained therein must also be invalid. Leyman vs Darwins Lid. , , Union of India vs Kighorilal Gupta and Brothers, ; , Tolaram vs Birla Jute Manufacturing Company Lid., I. L. R. , relied on. (2)the respondents were not estopped by their conduct from questioning the validity of the award. Ex parte Wyld, (1861) 30 Law J. Rep. (N. section) Bank. 10, explained. (3)on the true construction of the contract dated Sep tember 7, 1955, read with the terms of the import licence in favour of the appellant, the agreement between the parties was that the contract was not to be transferred. In construing a contract it would be legitimate to take into account surrounding circumstances and, therefore, on the whether there was an agreement between the parties 185 that the contract was to be non transferable, the absence of a specific clause forbidding transfer was not conclusive. Virjee Daya & Co. vs Ramakrishna Rice & Oil Mills, A. 1. R. , approved. British Waggon Co. vs Lea, , dist inguished. Accordingly, the contract in question was not hit by the notification dated October 29, 1953.

In the execution proceedings to satisfy a decree dated 14 10 1958 for title and recovery of possession of certain "ganju Bhogra lands" obtained by the appellant against the State, the Notified Area Council. Rourkela claimed the suit lands by an application u/o XXI Rule 58 r/w sections 37 and 38 Code of Civil Procedure. The said application was rejected. A revision against it was also dismissed with the observation that the council was free to file a regular suit for adjudication of its rights. When the appellant took out a fresh application for execution u/s 47 of the Code` of Civil Procedure, the Council which never filed any suit, and the respondent State which never appealed against the original decree, opposed the execution application on the ground that the decree became infructuous by virtue of section 3 of the orissa Merged Territories (Village offices Abolition) Act, 1963. The Executing court upheld the objection and dismissed the execution petitition. On appeal the Additional District Judge, by his order dated 2 5 1970, held that the decree was executable resulting in a second appeal to the High court by the respondent State. The High Court allowed the appeal by its order dated 4 11 1974 holding that as the decree holder was not in actual physical possession of the land, the tenure has vested in the State free from all encumbrances u/s 3 of the Act and the decree was rendered "non est". Dismissing the appeal by special leave, the Court, ^ HELD: (1) As a result of the abolition of the village office under section 3 of the OMTA, all incidents of the appellant 's service tenure, e.g., the right to hold the "bhogra land" stood extinguished by virtue of the provision of clause (b) of section 3, and ail settlements, sanads and all grants in pursuance of which the tenure was being held by the appellant, stood cancelled under section 3(c). The right of the appellant to receive emoluments was also deemed to have been terminated under Cl. (d) and by virtue of Cl. (f), his bhogra land stood resumed and "vested absolutely" in the State free from all encumbrances. Section 3 of the Act, in fact, expressly provided that this would be the result, notwithstanding anything in law, usage, settlement, grant, sanad, order or "in any judgment, decree or order of a court. " All these consequences ensued with effect from April 1, 1966 the date of coming into force of the orissa Merged territories (Village offices Abolition) Act, 1963. From that date, the appellant suffered from these and other disabilities enumerated in section 3 of the Act, the "bhogra land" in respect of which he obtained the decree dated October 14, 1958 declaring his title and upholding his right to possession was, therefore, lost to him as it vested "absolutely" in the State Government free from all encumbrances. The decree for possession also thus lost its efficacy by virtue of the express provisions of the Act and there is nothing wrong in holding that the decree was rendered incapable of execution by operation of law. [77 D H] (2) Under sec. 5 of orissa Merged Territoies ((Village offices Abolition) Act, 1963, once a "bhogra land" stood resumed and vested absolutely in the State Government to the exclusion of the village officer concerned, it was required to be "settled" with rights of occupancy thereunder. The settlement of the land contemplated by sec. S had to be with the holder of the village office and the other persons who were enjoying it (or part of it) and as his co sharers, as tenants under him or his co sharers, but that was to be so on the condition 76 that "each such person, namely, the holder of the village office and his cosharers or the tenants under the holder of the office or his co sharers was in separate and actual cultivating possession" of the land immediately before April, 1966. The words "each such person" occurring in sub section I of Sec. 5 include the holder of the village office so that in order to be eligible for settlement of the land with occupancy rights, he must also be in separate and cultivating possession of the "bhogra land" immediately before April 1, 1966. There is nothing in sub section I of Sec. 5 to justify the argument that the interpretation of the words "each such person" should be such as to exclude the holder of v the village office from its purview. [78 E, F H] State of orissa vs Rameswar Patabisi (Civil Revision Petition No. 257 of 1974) decided on 27 6 1975 (orissa High Court) over ruled; Meharabansingh and Ors. vs Nareshaingh and ors. (held not applicable). (3) The provisions of sec. 9 do not justify the argument that the village officer was entitled to continue his possession of the "bhogra land" under that section in spite of the fact that the land. stood resumed and vested absolutely in the State Government free from all encumbrances. [80 E] (4) The normal consequences arising out of the rejection of the application under o. XXI, r. 58, Civil Procedure Code and the failure to institute the suit thereafter, were rendered nugatory by the express provisions of section 3 of the orissa Merged Territories (Village offices Abolition) Act, 1963. The question of executability of the decree did not arise. [81 A B] [The Court left open to the authorities concerned to examine the question of settlement of the land under section 5(1) of the orissa Merged Territories (Village Dr offices Abolition) Act, 1963, with liberty to the village officer to rely upon such matters as may be available according to law.]

The respondent firm was assessed to income tax for the assessment years 1947 48, 1948 49 and 1949 50 under section 23(3). The Income tax Officer renewed the registration of the firm under section 26A of the Income tax Act and passed an order under section 23(6) allocating the shares of the various partners. The respondent preferred appeals against the orders of assessment to the Appellate Assistant Commissioner. Oil November 4, 1950, the Appellate Assistant Commissioner partly accepted the appeals in respect of the assessment years 1947 48 and 1948 49 but the appeal in respect of the assessment year 1949 50 was still pending. Meanwhile after issuing notice to the parties and hearing them the Commissioner, acting under section 33B(1), passed an order on June 5, 1952, cancelling the registration granted under section 26A on the ground that one of the partners of the firm was a minor, and directed the Income tax Officer to make fresh assessments for the three years. The respondent preferred appeals to the Appellate Tribunal which were allowed. On the application of the appellant the Tribunal referred, under section 66(1) of the Act, three questions to the High Court of Bombay. In regard to the assessment years 1947 48 and 1948 49 the High Court held that the orders of the Income tax Officer granting registration had merged in the appellate orders of the Assistant Appellate Commissioner and the revisional power of the Commissioner under section 33B(1) could not be exercised in respect of them. With regard to the renewal of registration for the year 1949 50 the High Court held that the Commissioner could not exercise his revisional power as the propriety of this order was open to consideration by the Appellate Assistant Commissioner in the respondent 's appeal pending before him. The appellant obtained special leave and appealed: Held, that the Commissioner had the authority under section 33B(1) to set aside the orders of registration made by the Income tax Officer. An order of the Income tax Officer granting registration was not appealable before the Appellate Assistant Commissioner. Such an order could be cancelled by the Commissioner in exercise of his revisional powers under section 33B(1) ; but it could not be cancelled by the Appellate Assistant Commissioner even in the exercise of his appellate jurisdiction when dealing with an appeal by an assessee. The theory that the order of a tribunal merges in the order of the appellate authority did not apply to the order of registration passed by the Incometax Officer. Commissioner of Income tax, Bombay North vs Tejaji Farasram Kharawala, , referred to. Durgabati and Narmadabala Gupta vs Commissioner of Income tax, , disapproved. But the Commissioner has no power while exercising his revisional jurisdiction under section 33B(1) of the Act to set aside the assessment orders. The Commissioner, in the present case, did 715 not really intend to set aside the assessment orders but merely to direct the Income tax Officer to make suitable consequential amendments in regard to the machinery or procedure. to be adopted to recover the tax payable by the respondent. The registration or non registration of a firm does not at all affect the computation of taxable income; it merely governs the procedure to be adopted in recovering the tax found due. Shapurji Pallonji vs Commissioner of Income tax, Bombay, , referred to.

No. 65 of 1959. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. B. D. Sharma, for the petitioners. H. N. Sanyal, Additional Solicitor General of India, B. Ganapathy Iyer and P. M. Sen, for the respondents. April 10. The Judgment of the Court was delivered by DAS GUPTA, J. This application under article 32 of the Constitution is for the protection of fundamental rights under article 19(1)(f) and (g), article 31 and article 14 of the Constitution. The second and the third applicants are merchants who used to import considerable quantities of glass chatons upto 1957. The first applicant is an Association of merchants, some of whom were importers and some the actual users of glass chatons. Import of glass chatons which form an important part of the raw materials for the manufacture of glass bangles and other similar articles of wear could, be made only on licences granted by licensing authorities. Since 1955 the matter has been regu lated by the Imports (Control) Order, 1955. This Order which was made by the Central Government in exercise of powers conferred by sections 3 and 4 A of the Import and Export Control Act, 1947, prohibited the import of a large number of goods including inter alia glass chatons, except under and, in accordance with a licence, granted on application by the licensing 864 authorities under the Act. Policy statements are made from time to time by the Government of India, indicating the policy for the issue of Import licences. The policy as regards the import of glass chatons for the period January, 1957 to the end of March, 1958 was that the import was totally prohibited. ' Since April 1958, the policy as laid down is that import was permitted only under the Export Promotion Scheme. It appears that in ' view of this policy statement no application was made at all by the second or third applicants or other merchants for the import of glass chatons, in 1957 or thereafter and no licence was issued to them. Licences were however issued in favour of the State Trading Corporation, for the import of glass chatons of the value of five lakhs of Rupees, for the period April September, 1958,and again, for the import of these goods of the value of Rs. 1,25,000 for the period October, 1958 to March, 1959. The present application was made on April 27, 1959. The prayer is that respondents 1 and 2 i.e. , the Union of India and the Chief Controller, Imports, should be directed (i) to "forbear from giving the State Trading Corporation any preference over the petitioners, in the grant of permits", (ii) not to create a monopoly in favour of the State Trading Corporation, (iii) to cancel the import permits already granted in favour of respondent No. 3 the State Trading Corporation and the petitioners also prayed that the. respondent No. 3 should be directed not to import on the basis of import licences already granted. It has to be mentioned at once that the periods of the import permit "already granted" as referred to in the petition has already expired and consequently, the last two prayers mentioned above cannot possibly be granted. There was no application at all by the second and the third applicants, or any of the merchants who form the association, the 1st appellant for the issue of any import licences; there can be no question therefore of respondents 1 and 2 being given any preference over the petitioners in the grant of permits Nor is there, as far as can be made out, any scheme to issue fresh licences in favour of the 865 State Trading Corporation so that apart from what has already happened there is no question of any future action "to create a monopoly in favour of the State Trading Corporation". Therefore the petitioners cannot be given any relief on the present application. Learned Counsel however submitted that so long as Para. 6(h) of the Imports (Control) Order, 1955, remains it will be useless for his clients to make any application for licences. 6 lays down a number of grounds on which the Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any other licensing authority not to grant a licence. The ground mentioned in the clause (h) is "if the licensing authority decide to canalise imports and the distribution thereof through special or specialised agencies or channels". Learned Counsel has argued that this provision in clause (h) of Para. 6 is void being in contravention of article 19(1)(f) and (g), and article 31 of the Constitution. He also urged that to the extent section 3 of the Imports and Exports Control Act, 1947, permits the Central Government to make an order as in Para. 6(h) section 3 itself is bad. In view of these submissions the learned Counsel was permitted to urge his contentions against the validity of Para. 6(h) of the Imports (Control) Order, 1955, and also his limited attack against the validity of section 3 of the Imports and Exports Control Act, 1947. The requirement as regards any goods that they cannot be imported except and in accordance with a licence is undoubtedly a restriction on the right to carry on trade in such goods and also on the right to acquire property. Learned Counsel does not however contend that by itself this requirement of section 3 of the Imports and Exports Control Act is an unreasonable restriction. His attack is only against the further restriction which follows from the provisions in section 6(h) of the Order that the Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any licensing authority not to grant licences "if the licensing authority decides to canalise imports and the distribution thereof 866 through special or specialised agencies or channels". The argument is that the further restriction. on the right to carry on trade and the right to acquire property that results from this provision is totally unreasonable. It is obvious that if a decision has been made that imports shall be by particular agencies or channels the granting of licence to any applicant outside the agency or channel would frustrate the implementation of that decision. If therefore a canalization of imports is in the interests of the general public the refusal of imports licences to applicants outside the agencies or channels decided upon must necessarily be held also in the interests of the general public. The real question therefore is: Is the canalization through special or specialized agencies or channels in the interests of the general public. A policy as regards imports forms an integral part of the general economic policy of a country which is to have due regard not only to its impact on the internal or international trade of the country but also on monetary policy, the development of agriculture and industries and even on the political policies of the country involving questions of friendship, neutrality or hostility with other countries It may be difficult for any court to have adequate materials to come to a proper decision whether a particular policy as regards imports is, on a consideration of all the various factors involved, in the general interests of the public. Even if the necessary materials were available it is possible that in many cases more than one view can be taken whether a particular policy as regards imports whether one of heavy customs barrier or of total prohibition or of entrustment of imports to selected agencies or channels is in the general interests of the public. In this state of things the burden on the person challenging that the government of the country is not right in its estimate of the effects of a policy as regards imports in the general interests of the public will be very heavy indeed and when the Government decides in respect of any particular commodity that its import should be by a selected. 867 channel or through selected agencies the Court would proceed on the assumption that that decision is in the interests of the general public unless the contrary. is clearly shown. Consequently, we are unable to accept the argument that a decision that imports shall be canalised, is per se not a reasonable restriction in the interests of the general public. We wish to make it clear that while the decision that import of a particular commodity will be canalised may be difficult to challenge, the selection of the particular channel or agency decided upon in implementing the decision of canalisation may well be Challenged on the ground that it infringes article 14 of the Constitution or some other fundamental rights. No such question has how. ever been raised in the present case. The attack on the validity of Para. 6(h) of the Imports Control Order, 1955, therefore, fails. The contention that section 3 of the Imports and Exports Control Act, 1947, is bad to the extent that it permits the government to make an order as in Para. 6(h) of the Imports Control Order, 1955, consequently also fails. The attack on this provision in Para. 6(h) of the order that it contravenes article 31 is not even plausible. Assuming for the purpose of this case that the right to carry on trade is itself property, it is obvious that there is no question here of the acquisition of that right. What happens if a licence is refused to an applicant under Para. 6(h) is that the applicant can no longer carry on trade in these goods. When licence is granted to the agencies or channels through which imports have been decided to be canalised, these agencies or channels 'can carry on trade but this is not because of an acquisition by these agencies or channels of the right to carry on trade which the unsuccessful applicants for licence had. Article 31 of the Constitution has therefore no application. It was next urged that the grant of licences to the third respondent, the State Trading Corporation of India while none has been granted to the second and the third petitioners has resulted in a denial of equal protection of laws guaranteed by article 14 of the Constitution. If these petitioners had applied for licences 868 trader the Export Promotion Scheme and still the State Trading Corporation had been preferred it would perhaps have been necessary to consider whether the preference accorded to the Corporation was based on reasonable and rational grounds. It is clear however that though it was open to these petitioners to apply for licences under the Export Promotion Scheme they made no application for licence thereunder. There is to scope therefore for the argument that they have en discriminated against. In the result, we are of opinion that the petitioners are not entitled Iwo any relief under article 32 of the Con. stitution. The petition is accordingly dismissed with costs. Petition dismissed.

The appellants were importers and users of glass chatons the import of which was prohibited except under a licence granted by the licensing authorities under the Import and Export Control Act, 1947, and the Imports (Control) Order, 1955. The import was totally prohibited for some time but afterwards it was permitted under the Export Promotion Scheme and licence was issued in favour of the State Trading Corporation. The appellants who made no application for licence contended inter alia that the provisions of para. 6(h) of the Imports (Control) Order, 1955, that the Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any licensing authority not to grant licence if the licensing authority decided to canalise imports and the distribution thereof through special or specialised agencies or channels are unreasonable restrictions on the right to carry on trade 863 and to acquire property and as such contravene articles 14, 19(1) (f) & (g) and 31 of the Constitution. Held, that the decision that import of a particular commodity shall be canalised by a selected channel or through selected agencies is a reasonable restriction in the interest of the general public. The provisions of para. 6(h) of the Imports (Control) Order, 1955 and section 3 of the Imports and Exports Control Act, 1947, are valid and do not contravene articles 14, 19(1)(f) and (g). Nor do they contravene article 31 of the Constitution as no question of acquisition of any right arises by the refusal of a licence.

The appellant Manganese ore (India) Ltd. (a commercial venture where the Government of India, Government of Maharashtra and Government of Madhya Pradesh hold shares in the ratio of 17 per cent each) entered into four types of "contracts of sale" with buyers in India and outside India for selling the manganese ores extracted from the mineral mines leased out to it and situated li in the States of Madhya Pradesh and Maharashtra. They were (a) category I are the contracts where the appellant directly sent the ores to two foreign companies on f.o.b. terms; (b) category II represents contracts which were entered into by the appellant with tho Mineral and Metals Trading Corporation of India Ltd., under which the appellant despatched manganese ore of varying percentage to the M.M.T.C., f.o.b. Bombay and the M.M.T.C. in turn exported the goods to foreign buyers; (c) category III relates to the sales to M/s. Ram Bahadur Thakur & Co., Bombay and other buyers who in their turn sold the goods to M.M.T.C. for export; and (d) category IV relates to the sales in favour of the buyers within the territories of India, but outside the State. According to section 3(a) ant 9 of the , the State of Madhya Pradesh was competent to levy tax on the sales in the course of inter state trade or commerce. Under section 5(1) of the , sales occasioning export or in the course of export are exempt from the purview of the Act. In respect of categories II to IV, the Sales Tax Authorities levied tax under the Central Act, holding that they were in the course of inter State trade or commerce and imposed a penalty of Rs. 1,000/ under the Madhya Pradesh General Sales Tax Act for belated filing of returns. The writ petition filed by the assessee in the Madhya Pradesh High Court failed. Dismissing the appeal by special leave and quashing the penalty imposed, the Court. ^ HELD: As no export was involved so far as the buyers in India are concerned, section 5(1) of the has no application at all. This 100 point is no longer "res integra" in view of the Constitution Bench division of this Court in Md. Serajuddin and others vs State of Orissa, Where the sale Y/as not directly and substantively connected with export, and where between the seller and ultimate buyers intermediaries are involved, such a sale would not occasion any export and would not fall within the purview of section 5(1) of the . [102 G, 103 C D] Md. Serajuddin & others vs State of Orissa, , applied. (2) The doctrine of "Stare Decisis" is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so, and more so to reconsider a recent constitutional decision. [103 G] (3) Before a sale can be said to take place in the course of inter state trade or commerce, the following conditions must be satisfied: (1) that there is an agreement to sell which contains a stipulation express or implied regarding the movement of the goods from one State to another. (ii) that in pursuance of the said contract the goods in fact moved from one State to another. and (iii) that ultimately a concluded sale takes place in the State where the goods are sent which must be different from the State from which the goods move. If these conditions are satisfied, then by virtue of section 9 of the Act, it is the State from which the goods move which will be competent to levy the tax under the provisions of the Act. [104 D F] Balabhgas Hulsachand and others vs Stare of Orissa, ; relied on. (4) So far as section 3(a) of the is concerned, there is no distinction between unascertained and future goods and goods which are already in existence, at he time when the sale takes place these goods have come into actual physical existence. [108 Bl Balabhgas Hulsachand and others vs State of Orissa, ; applied. (5) In the absence of any provision for penalty under the itself it is not open to the Sales Tax Authorities to press into the service the provisions of the State Sales Tax. [108 G] (6) In the instant case, a careful perusal of the agreements would clearly show that what the buyers wanted and what was actually sold to them was manganese are and after all the goods were stocked together, the required percentage under the contracts of sale automatically come into existence. The word "oriental mixture" is merely a technical terminology or just another name for what is known in the commercial world as manganese ore. therefore, It is clear that it was manganese ore and manganese ore alone which was sought to be sold by the appellant to various buyers in India. The mere fact that certain specific contracts have been mentioned does not alter the character and quality of the goods that are actually supplied by the appellant to its various purchasers. In these circumstances, therefore, the theory of the ore supplied by the appellant being only one constituent and not the entire goods sold is illusory. [105 D F, 107 B D] Central Provinces Manganese ore Co., Ltd. vs The State of Maharashtra, S.T. Ref. 17 20/1964 decided on 7 4 1969 by Bombay High Court, Commissioner of Sales Tax, Eastern Division Nagpur vs Hussenali Adamji and company and another, 10 S.T.C. 297, (Distinguished).

The Second Respondent (Ferro Alloys Corporation), manufac turer exporter of ferro maganese and chrome concentrates, entered into a number of agreement . with foreign buyers for sale of the said commodity. The export was routed through the appellant to bring it within the system of private barter introduced by the Government of India with a view to encourage exports. The main objective of barter system was to provide a mechanism which would result in increased export of particular commodities which were ordinarily difficult to sell abroad where the selling countries were not able to get a foot hold. This objective was sought to he achieved by linking them to exports of an equivalent or lesser value of essential commodities which in any event had to he imported. As for as purchase and sale contracts were concerned, M.M.T.C. insisted that there should be one contract of sale between the local supplier and the M.M.T.C. and another contract of sale by the M.M.T.C. to the foreign buyer on principal to principal basis. It was agreed that Ferro Alloys should intimate the foreign buyer to enter into a direct contract with M.M.T.C. treating it as the seller. , Also, the G.R.I. form prescribed by the Reserve Bank of India under the Rules framed under FERA was to be signed by M.M.T.C. showing it as the exporter and seller. Letters of credit was opened in the name of M.M.T.C. which was to be assigned to Ferro Alloys so that Ferro Alloys could receive the payment directly. for the goods supplied to 13 M.M.T.C. The shipping documents also showed M.M.T.C. as the exporter. The transactions were gone through. Dispute arose between the parties when the question of issuance of Tax Credit Certificate u/S 280ZC of the Income tax arose as to who could be said to have exported the goods and received the sale proceeds in the shape of foreign exchange. The matter was taken in appeal before the Government of India. It held that M.M.T.C. was the exporter for the purpose of S.280ZC. Ferro Alloys challenged the said order before the High Court by way of a Writ Petition. The High Court allowed the Writ Petition, and held that the real exporter was Ferro Alloys which earned and received the foreign exchange and M.M.T.C. got only its commission of 2% and nothing more. Aggrieved by the judgment of the High Court, M.M.T.C. preferred the present appeal. Allowing the appeal. this Court, HELD: 1. The entire export was done through M.M.T.C. in accordance with the system of barter. There is no half way house; either it is not barter system or it is in accordance with the system of barter. This is an undisputed fact as , are the several statutory documents made out in the name of M.M.T.C. Thus M.M.T.C. is the exporter for the purpose of Section 280ZC of the Income tax Act, 1961. The entire system of barter and the several documents executed in that behalf including those required by statutory provisions cannot be explained away as mere "external appearances". Ferro alloys cannot come to M.M.T.C. when it is profitable to it and disavow it when it is not profitable to it. It cannot have it, both ways. The title to goods passed to M.M.T.C by virtue of the several documents executed between the parties. Indeed,that was the fulcrum of the entire scheme of Barter. (19 E F). This Court is not convinced with the alternative reasoning of the High Court that even if it is viewed that the title to the goods passed to M.M.T.C., even so Ferro alloys must be held to be the real exporter, in view of the objective underlying Section 280ZC. If M.M.T.C. has acquired the title to the goods and is the exporter for all other purposes it is equally the exporter for the purpose of Section 14 280ZC. There can be no dichotomy of the nature propounded by the High Court. (19 H, 20 A).

% These appeals and writ petitions involved two questions of law (i) whether Rule 41 A of the Karnataka Cinemas (Regulations) Rules (the Rules) framed by the State Government under section 19 of the Karnataka Cinemas Regulations Act of 1964 (the Act) had been made "for purposes of the Act", and (ii) whether Rule 41 A placed unreasonable restrictions on the appellants ' right to carry on their business of exhibiting cinematograph films, in violation of Article 19(1)(g) of the Constitution. The appellants/petitioners held licences for exhibiting cinematograph films in their cinema theatres under the Act and the Rules in Form prescribed by the Rules. Normally, the Cinema owners were holding four shows in a day, but later on, they increased the shows to five in a day starting from 10 a.m. and ending at 12 a.m. This caused a number of problems. The State Government in exercise of its powers under section 19 of the Act framed Rule 41 A directing that no licensee would exhibit more than four cinematograph shows in a day. The appellants challenged the validity of the Rule 41 A placing restrictions on their right to exhibit cinematograph films before the High Court by writ petitions. The appellants contended before the High Court that the restriction imposed by Rule 41 A on the licensees requiring them to exhibit more than four shows in a day was beyond the rule making power, as the Rule did not carry out the purposes of the Act, and that the Rule placed unreasonable restrictions on their fundamental right to carry on the business of exhibiting cinematograph films. There was difference of opinion between the two learned Judges constituting the Bench of the High Court, which heard the petitions. K.S. Puttaswamy, J. held infer alia that the impugned rule was ultra 512 vires as it was beyond the rule making power of the Government under section 19 of the Act, and that it placed unreasonable restrictions on the appellants ' right to carry on their business guaranteed under Article 19(1)(g) of the Constitution. Narayan Rai Kudoor, J. upheld the validity of the Rule, holding that the impugned Rule carried out the purposes of the Act, viz., the regulation of the exhibition of cinematograph films, and the restriction placed by it was reasonable. Since there was difference of opinion between the two learned Judges, the matter was placed before M. Rama Jois, J., who agreed with the opinion of N.R. Kudoor, J., holding that the State Government had the power to frame the Rule and the Rule did not place any unreasonable restriction on the appellants ' right to carry on business of exhibiting cinematograph films, and that it was not utlra vires the Act and did not violate appellants ' fundamental rights under Article 19 of the Constitution. Consequently, all the writ petitions were dismissed. Aggrieved by the decision of the High Court, the appellants filed appeals in this Court. Some of the aggrieved cinema owners filed writ petitions in this Court, challenging the validity of Rule 41 A. Dismissing the appeals and the writ petitions, the Court, ^ HELD: The question whether Rule 41 A was validly framed to carry out the purposes of the Act could be determined on the analysis of the provisions of Act. The title of the Act and the preamble clearly indicate that the main purpose of the Act is to regulate the exhibition of the cinematograph films in places in respect of which a licence for that purpose may be issued. The extent of control and regulation is evidenced by the provisions of the Act. The ultimate purpose of these provisions is to ensure safety and convenience of the general public visiting the licensed premises for witnessing the cinematograph films exhibited therein. [518D,H; 519A B; 520F] Section 19 of the Act confers power on the State Government to frame rules for carrying out the purposes of the Act. The preamble and the provisions of the Act provide for the regulation of the exhibition of the cinematograph films, which is the primary object of the Act. The Act confers wide powers on the State Government for the regulation of the exhibition of the cinematograph films which include power to regulate hours during which cinematograph films may be exhibited, the seating arrangements for the members of the public, and any other allied matters pertaining to public safety, health, sanitation and incidental matters. Rule 41 A which limits the numbers of shows in a day, regulates the exhibition of the cinematograph films and carries out the 513 purposes of the Act. It was, therefore, referable to the State Government 's general power under section 19(1) of the Act. Rule 41 A was further referable to clauses (a) and (d) of section 19(2) of the Act. Clause (a) confers power on the State Government to frame rules prescribing terms, conditions and restrictions subject to which a licence may be granted. The State Government may lay down conditions and impose restrictions prescribing hours during which the films might be exhibited and also the number of shows in the licensed premises. Clause (d) confers power on the State Government to frame rules regulating the exhibition of cinematograph films for the purpose of securing public safety. Any rule regulating the exhibition of the cinematograph films if reasonably connected with public safety would be justified under the said provision. Rule 41 A adds a condition to the licence that exhibition of films would be limited to four shows in a day. No licensee could claim to have unrestricted right to exhibit cinematograph films for all the 24 hours of the day. Such a claim would be against public interest. The restriction to limit the number of shows to four in a day placed by rule 41 A was regulatory in nature which clearly carried out purposes of the Act. [520G H;521A F] The provisions of the Act have laid down the policy for regulating the exhibition of the cinematograph films in the licensed premises and also for regulating the construction of the building, auditorium, galleries, balconies, projection rooms, seating accommodation and other allied matters related to public health and safety, etc., and all other matters relating to the exhibition of films. Validity of none of the other rules has been challenged by the appellants/petitioners although those provisions placed a number of restrictions on their right of exhibiting cinematograph films. The restrictions placed by Rule 41 A are similar to the restrictions already placed on their right to exhibit cinematograph films. It is incidental to the general power of regulating the exhibition of cinematograph films, and it is connected with the regulation of the exhibition of the cinematograph films.[522C D,H;523A] The question arises whether rule 41 A placed unreasonable restrictions on the appellants ' right to carry on business of exhibiting cinematograph films in violation of Article 19(1)(g) of the Constitution, The appellants/petitioners have not challenged the validity of the Act. Therefore, they claim no unrestricted right to exhibit cinematograph films. They have been carrying on the business exhibiting films under a licence in form which contained the terms and conditions prescribed by the Act and the Rules framed therunder. Rule 41 A added one more condition to it, requiring the licensee not to exhibit more than four 514 shows in a day. The freedom to practise any profession, or to carry on any occupation, trade or business, guaranteed by Article 19(1)(g), is not absolute, it is subject to clause (6) of Article 19, which permits imposition of reasonable restrictions by law, if it is necessary in the interest of the general public. Any law imposing reasonable restrictions on the exercise of the right guaranteed by Article 19(1)(g) would be valid if it is in the interest of the general public. Restriction contemplated in Article 19(6) may in certain circumstances extend to total prohibition, as held by this Court in Narender Kumar vs Union of India, ; The. material placed before the State Government as also this Court, clearly demonstrated the necessity for curtailing the holding of five shows to four to remove the public grievance, as the representation filed on behalf of the public highlighted the hazards to public safety and the inconvenience caused to the members of the public visiting the cinema halls. Rule 41 A was framed to meet the public need and to secure public safety by placing minimum possible restrictions on the licensees. The Court found no merit in the contentions of the appellants/petitioners that Rule 41 A was neither necessary nor reasonable as the purpose for which it was framed could have been achieved if the relevant authorities carried out their duties in making inspections and securing the compliance of the existing rules, and that the impugned Rule did not prescribe the duration of four shows or the intervals between them and each one of the reasons set out by the State to justify the impugned Rules, could be fully achieved by the enforcement of the existing Rules.[523B E;525A C] In holding five shows, the licensees did not exhibit approved documentaries and slides and adequate measures could not be taken to ensure public safety and health. The Court had no doubt that the existing Rules could not meet the situation and the State Government was justified in framing Rule 41 A placing limit on the appellants '/petitioners ' right to exhibit cinematograph films to four shows which was in the public interest. The appellants/petitioners had no unrestricted fundamental right to carry on business of exhibiting cinematograph films. Their right to carry on business was regulated by the provisions of the Act and the Rules framed thereunder. These provisions were necessary to ensure public safety. Public health and other allied matters. The Rule 41 A does not prohibit exhibition of the cinematograph films, instead, it regulates it by providing that instead of five shows only four shows should be exhibited in a day. The Rule does not take away the licensees ' right to carry on business of exhibiting cinematograph films; it merely regulates it. No rule or law could be declared unreasonable merely because there was reduction in the income of a on account of the regulation of the business. Rule 41 A does not place any unreason 515 able restriction on the appellants '/petitioners ' fundamental right guaranteed to them under Article 19(1)(g) of the Constitution. It carries out the purpose of the Act in regulating the exhibition of the cinematograph films in the licensed premises. Rule 41 A is inter vires the Act. [525G H;526C,527A B] The Court was in agreement with the majority opinion of the High Court. Narender Kumar vs Union of India, ; , referred to. Shelvarajan vs State of Mysore, , disapproved. Vishnu Talkies vs State of Bihar, AIR 1975 Patna 26 and D.K . V. Prasad Rao vs State of Andhra Pradesh, AIR 1984 A.P. 75, approved.

Section 123(1) of the , provided that, where any goods to which this section applies are seized under this Act in the reasonable relief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. On 21 4 1967 Police officers of the Anti Corruption and Prohibition Bureau. Greater Bombay, acting on information received, had searched room No. 10 at 56, Sheriff Deoji Street Bombay. This room was divided by petitions into three parts. In the central portion the police found the appellant and three other persons. This portion was again sub divided with a locked connecting door fixed in the passage to the sub divided part. This was opened by one of the two Godrej lock keys produced by the appellant from a side pocket of his trousers. Eleven wooden boxes covered with jute cloth and secured by iron strips were found there. On opening them. six of them were found to contain cigarette lighters of "Imco Triplex Junior" brand "Made in Austria.". Each of the six boxes were tightly packed with 1 200 lighters. The remaining five boxes contained fifty sealed tins of flints for cigarette lighters which bore the Following writing: "Tego Lighter Flints of Superior Quality Made in Germany" inscribed on them. A panchnama was prepared before Panchas. A rent receipt in the name of the appellant in respect of room No. 10, in this house, of which a portion was occupied by the appellant, and a bill for the consumption of electricity were also seized from the custody of the appellant together with the Godrej locks and the keys produced by the appellant. On 30th October. 1968 the Assistant Collector of ' Central Excise, Marine and Prevention Division. Bombay, filed a complaint alleging that the appellant had committed offences punishable under Section 135(a) and (b) of the . The appellant had denied being in possession of the offending goods although he had admitted the production of keys from his possession. The trying Presidency Magistrate convicted him under section 135(b)(ii) of the and sentenced him to six months rigorous imprisonment and a fine of Rs. 2,000/ , and in default, to three months further rigorous imprisonment. The High Court dismissed his appeal. This appeal has been preferred on the basis of the special leave granted by this Court. It was contended for the appellant that: (1) the presumption contained in s.123(1) of the Act would not place the onus of proving innocent possession of the goods in question upon the appellant; and, (ii) the goods in respect of which the appellant was prosecuted were not seized under the Act. Rejecting the contentions and dismissing the appeal. the court ^ HELD: (1) Though lighters and flints were notified provided in Section 123(2), in the official Gazette of 26 8 1967 the provisions of Section 123(1) which only lay down a procedural rule, could be applied when the case came up for. trial before the Presidency Magistrate. He divided it on 15 7 1969. The complaint itself ' was filed on 30 10 1968. It is immaterial that the appellant was round in possession of the goods on 21 4 1967. [542 B C] (ii) The very appearance of the goods and the manner in which they were packed indicated that they were newly manufactured and brought into this country very recently from another country. The inscriptions on them and writing on the boxes were Parts of the state in which the goods in unopened boxes were found from which inferences about their origin and recent import 540 could arise. The appellant 's conduct, including his untruthful denial of their h possession, indicated consciousness of their smuggled character or means rea. There was some evidence to enable the courts to come to the conclusion that the goods must have been known to the appellant to be smuggled even if he was not party to a fraudulent evasion of duty. [543 B D] Gian Chand & ors. vs The State of Punjab, [1962] Suppl. l S.C.R. 364 Collector of Customs, Madras & ors. vs D. Bhoormull ; M/s, Kanungo & Co. vs The Collector of Customs, Calcutta & ORS. A.I. R. 1972 S.C. 2136, Issaradas Daulat Ram & ors vs The Union of India & ors [1962] Suppl. 1 S.C.R. 358, Gopal Sheorey vs The State of Bombay ; and The State of Punjab vs Gian Chand & ors. Criminal Appeal No. 195 of 1962 decided by this court on 2 4 1968, referred to.

The appellants manufacture a medicated syrup "Sharbat Rooh Afza" according to a formula and containing some fruit juices. Acting under section 3 of the , the Central Government made the Fruit Products order in 1955; as a result of an amendment in September 1956 of the relevant provisions of this Order, the requirement of the minimum percentage of fruit juices in a fruit syrup covered in of the Second Schedule of the Fruit Order was raised from 10% to 25%. This requirement was duly notified to the Appellants. Thereafter as a result of an inspection of their factory by the Marketing development Officer, the appellants received an order from him requiring them to stop further manufacture and sale of 'Sharbat Rooh Afza ' forthwith on the ground that it did not contain the minimum percentage of fruit juices prescribed by the relevant provisions of the Fruit Order. The appellants challenged this order in a Writ Petition on the ground, inter alia, that the Fruit Order did not apply to 'Sharbat Rooh Afza ' and also that the impugned order and the Fruit Order were invalid. The High Court, however, rejected these grounds, upheld the validity of the Fruit Order and dis missed the petition. It was contended on behalf of the appellants that the 'Sharbat ' was a medicinal product and not a 'fruit product ' as defined by cl. 2(d) of the Fruit Order; that the Fruit Order was invalid because it could have appropriately been issued only under the , and not the ; and that the impugned order was invalid because it affected the appellant 's Trade mark rigts. HELD : (i) The Sharbat was a fruit product within the meaning of cl. 2(d) (v) of the Fruit order as the residuary part of that clause took in any beverages containing fruit juices or fruit pulp; as such, its production could be controlled by the relevant provisions of the order. The High Court was right in rejecting the appellant 's contention that the Sharbat was a medicinal product in view of the fact that the appellants had not claimed exemption from the application of the Fruit Order by complying with Cl. 16(1)(c) thereof. [200 E G; 201 H; 203 A] (ii)As section 3(1) of the authorised the Central Government to regulate the qualitative and quantitative production of essential commodities, and as the pith and substance of the relevant provisions of the Fruit Order was clearly to regulate the qualitative production of the Fruit Products covered by it, the contention that the regulations imposed by the order were outside the purview of section 3(1), could 193 not be accepted. The order was not therefore invalid on the ground that it purported to tackle the problem of adulteration and should therefore have been issued under the . [201 D 202 C] (iii)The Fruit Order and the Act under which it was issued were constitutionally valid as the restrictions imposed by them were reasonable and in the interest of the general public. What the impugned order purported to do was to require the appellants to comply with reasonable restric tions imposed by the Fruit Order and the fact that, incidentally, compliance with the Fruit Order might tend to affect the trade mark rights, could not render the impugned order invalid. [203 D E] (iv)The definition of 'synthetic beverage ' in cl. 2(k) of the Fruit Order which indicates that it is a beverage which contains no fruit juice cannot be said to conflict with the requirements of cl. 11(2) that beverages containing less than 25% fruit juices should be sold as 'synthetic ' pro ducts. Furthermore, cl. 11 contains a positive provision and the validity of the mandatory requirements of cl. 11 could not be impaired by the alleged inconsistency between that provision and the definition of 'synthetic ' beverage prescribed by cl. 2(k). [203 A B] Amrit Banaspati Co. Ltd. vs The Stale of U.P. Cr. A. No. 141 of 1959 dated 30 11 60, referred to.

Clause (b) of sub rule (11) rule 3 of the Karnataka Excise (Sale of Indian and Foreign Liquors) Rules, 1968 as amended by the Amendment Rules, 1989, requires the State Government to issue distributor licence only to such company owned or controlled by it as may be specified. The petitioner assailed the constitutional validity of clause (b) on the ground that the policy of prohibition was not being implemented as enjoined by Article 47 of the Constitution inasmuch as the State of Karnataka instead of bringing total prohibition in the State, had evinced inter est in taking up the responsibility of selling liquors to the general public, and sought a direction to the Union and other State Governments to enforce the policy of total prohibition. Dismissing the writ petition, the Court, HELD: 1. There is no direct or casual violation of any fundamental right of which the petitioner can legitimately claim enforcement. Article 47 is in Part IV of the Constitution which contains Directive Principles of State Policy. Article 37 enjoins that the provisions of this part shall not be en forceable by any court. Article 32 gives the Supreme Court the power to enforce rights which are fundamental rights. Fundamental rights are justifiable, Directive Principles are not. 2 Directive Principles are aimed at securing certain values or enforcing certain attitudes in the law making and in the administration of law. Directive Principles cannot in the very nature of things be enforced in a court of law. Akhil Bharatiya Soshit Karamchari Sangh vs Union of India, ; , referred to. Whether a law should be made embodying the principles of Directive Principles depends on the legislative will of the legislature. In the instant case, what the petitioner sought to achieve by his application was to inject a sense of priority and urgency in that legislative will. Determin ing the choice of priorities and formulating perspective thereof, is a matter of policy. Article 32 is not the ma chinery through which policy preferences or priorities are determined. It is not the nest for all the bees in the bonnet of 'public spirited persons '. Rustom Cavasjee Cooper vs Union of India, , referred to.

The respondent gave the highest bid at an auction for the sale of license for a country liquor shop in Delhi for the year 1949 50. Under cl. 31 of the conditions of sale for that year, the Chief Commissioner was under no obligation to grant a license until he was assured of the financial status of the bidder. Under el. 33 all final bids were made subject to confirmation by the Chief Commissioner who could reject any bid assigning any reasons. However under cl. 21 of r. 5.34 of the Delhi Liquor License Rules a person to whom a shop had been sold had to pay one sixth of the annual fee within seven days of the auction. The respondent not having paid one sixth of the annual fee as required by the said cl. 21, the Chief Commissioner did not confirm his bid. Resale of the excise shop was ordered. At the new auction it was sold at a lower price. The Collector Delhi thereupon held the respondent liable to pay the difference between his bid and the bid for which the shop was later sold, and commenced proceedings for the recovery of the sum. The respondent filed a suit in the Court of the Senior Subordinate Judge, Delhi praying for a permanent injunction restraining the appellants (Union of India & Ors.) from taking any proceedings for the recovery of the amount. The trial judge decreed the suit. The decree was upheld by the first appellate court. In second appeal the Single Judge decided against the respondent. The Division Bench decided in his favour. The appellants came to this Court with certificate. It was contended on behalf of the appellants that the respondent was under a legal obligation to pay one sixth of the annual fee within seven days of the auction under el. 21 of r. 5.34; it was due to his default that a resale of the excise shop was ordered; and under cl. 22 of r. 5.34 the respondent was liable for the deficiency in price and all expenses of such resale which was caused by his default. HELD: (i) An acceptance of an offer may be either absolute or conditional. If the acceptance is conditional the offer can be withdrawn at any moment until absolute acceptance has taken place. [H 597] From cl. 33 of the conditions of sale it is clear that the contract of sale is not complete till it is confirmed by the Chief Commissioner and till such confirmation the person whose bid has been provisionally accepted is entitled to withdraw his bid. If the bid is so withdrawn before the confirmslion of the Chief Commissioner the bidder will not be liable for damages on account of any breach of contract or for the shortfall on resale. [G H 597] Hussers vs Horne Payne, , 676, referred to. 595 (ii) The phrase "person to whom a shop has been sold" in el. 21 r. 5.34 cannot be accepted to mean a "person whose bid has bern provisionally accepted". The first part of el.; 21 deals with a completed sale and the second part with a situation where the auction is conducted by an officer lower in rank than the Collector. In the latter case the rule makes it clear that if any person whose bid has been accepted by the officer presiding at the auction fails to make the deposit of one sixth of the annual fee, or if he refuses to accept the licence. the Collector may resell the licence either by public auction or by private contract and any deficiency in price and all expenses of such resale shall be recoverable from the defaulting bidder. [F G 598] In the present case the first part of d. 21 was applicable. If the Chief Commissioner had not disapproved the bid offered by the respondent under el. 33 of the conditions of sale, the auction sale in favour of the respondent would have been a completed transaction and he would have been liable for any shortfall on the resale. As the essential prerequisites of a completed sale were lacking in this case there was no liability imposed on the respondent for payment of the deficiency in the price. [598 H; 599 A B]

No. 164 01 1958. Writ Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights. N. C. Chatterjee and Naunit Lal, for the petitioners. N. section Bindra and D. Gupta, for the respondent. April 10. The Judgment of the Court was delivered by AYYANGAR, J. The constitutional validity of the Ay. operative provisions of the Punjab Shops and Commercial Establishments Act, 1958 (Punjab Act 15 of 1958), which we shall hereafter refer to as the Act, is challenged in this writ petition filed under article 32 of the Constitution, seeking reliefs appropriate to such a challenge. There are two petitioners and the nature of the business carried on by, them, which is set out in the 854 petition, indicates that they have combined with a view to bring up before the Court the implications of the enactment with reference to different types of business which trades in the Punjab might be ' carrying on and which would be impeded or restricted by the provisions of the Act. The first petitioner states that he has a shop at Mandi Dabwali in Hissar District where he carries on business in the purchase and sale of grains, etc. in wholesale. The relevant averment in regard to the nature of his business is that the customers who supply him with goods bring them loaded in carts drawn by camels or bullocks and that these vehicles arrive at his godowns at all hours of the day and night. He also states that for the purpose of the purchases or sales effected by him, he receives messages by telephone and telegram both during the day and the night. These, according to him, render necessary, if he has to carry on business as he has been doing all along, that his place of business should be kept open practically the whole of the day and night, i.e., for all the 24 hours. The second petitioner states that he is carrying on a retail business on a small scale, and that he employs no outsider but attends to all the work in the shop himself, with the assistance, if necessary, of the members of his family. In this case also it is stated that the goods purchased are brought to him at all hours of the day and night and similarly he has to receive messages during the entire period. It is in this background that the petitioners desire that the Court should view the restrictions imposed upon them by those provisions of the Act which are challenged in the petition. We shall now proceed to set out he impugned provisions of the Act with a view to determine whether for all or any of the reasons set out in the petition,any of them could be said to constitute an unreasonable restriction on the right to carry on trade or business so as not to be protected by article 19(6) of the Constitution which is the gravamen of the complaint formulated in the petition. The Act received the assent of the President on April 25, 1958, and was published in the Punjab 855 Gazette on May 1, 1958. According to the preamble, it is an Act to provide for the regulation of conditions of work and employment in shops and commercial establishments. The Act repealed and re enacted, with modifications, the Punjab Trade Employees Act, 1940, to which enactment also it would be necessary to advert in its proper place. Section 1(3) of the Act provides that the Act shall come into force on such date as Government may, by notification appoint in this behalf and by a notification under this provision the Act was directed to come into force from June 1, 1958. The Act, however,, did not of its own force apply to the entirety of the Punjab State, for section 1(4) enacted: "1(4). It shall apply in the first instance to the areas specified in the Schedule, but Government may by notification direct that it shall also apply to such other area and on such date as may be specified in the notification." Mandi Dabwali where the petitioners carry on business is one of the local areas in the district of Hissar set out in the Schedule annexed. We might here note that the main grievance of the petitioners appears to, be that it has not been brought into force in neighbouring local areas and that this disparity in the regulations is acting to the disadvantage of people carrying on business in the areas set out in the Schedule. This, however, cannot obviously be a ground of constitutional grievance and learned Counsel therefore very properly did not rely on it except merely to draw our attention to this fact. Section 2(iv) defines a 'a commercial establishment ' to which the Act applies as meaning "any premises wherein any business, trade or profession is carried on for profit", omitting the unnecessary words. Section 2(v) defines 'day ' as meaning "the period of twenty four hours beginning at midnight", again omitting what is immaterial. The operative provisions of the Act which were attacked in the petition are sections 7 and 9 and it would be convenient to set out their material terms: "7. Hours of employment. (1) Subject to the 856 provisions of this Act, no person shall be employed about the business of an establishment for more than forty eight hours in any one week, and nine hours in any one day. (2). . . . . . (3). . . . . . (4). . . . . . (5). . . . . . 9. Opening and closing hours. No establishment shall, save as otherwise provided by this Act, open earlier than ten o 'clock in the morning or close later than eight o 'clock in the evening; Provided that any customer who was in the establishment before the closing hour may be served during the period of fifteen minutes immediately following such hour; Provided further that the State Government may, by order and for reasons to be recorded in writing, allow an establishment attached to a factory to open at eight o 'clock in the morning and close at six o 'clock in the evening. Provided further that the State Government may, by notification in the official Gazette, fix such other opening and closing hours in respect of any establishment or class of establishments, for such period and on such conditions, as may be specified in such notification. " For the sake of completeness and to understand the scheme of the enactment we would set out the terms of section 10 also, which reads: "10. Close day. (1) Save as otherwise provided by this Act, every establishment shall remain close on every Sunday: Provided that, in the case of an establishment attached to a factory, the employer may substitute the close day of such establishment so as to correspond to the substituted close day of the factory in the same manner and subject to the same conditions as are laid down in this behalf in the . (2) (i) The employer of an establishment shall in the prescribed form intimate to the prescribed 857 authority the working hours and the period of interval of the employed persons within fifteen days of the date of registration of the establishment. (ii)The employer of an establishment may change, the working hours and the period of interval once in a quarter of the year by giving intimation in the prescribed form to the prescribed authority at least fifteen days before the change is to take place. (3) Notwithstanding anything contained in subsection (1), the employer of an establishment may open his establishment on the close day if (a) such day happens to coincide with. a festival; and (b) employees required to work on that day are paid remuneration at double the rate of their normal wages calculated by the hour". It is urged by Mr. Chatterji learned Counsel for the petitioners that having regard to the nature of the petitioners ' business, whose features we have set out earlier, it would be impossible for them to carry it on in the manner in which they have been doing up to now, unless the Act permitted the first petitioner to work without regard to the restrictions imposed by the limitation as to hours of work of employees imposed by section 7(1) of the Act, and both the petitioners without regard to the hours for the opening and closing of the "establishments" under section 9. Before entering on a discussion of the constitutional propriety of the restrictions imposed we may point out that the provisions of the Act contemplate that establishments might fall under three categories:. (1) where it is necessary in the public interest, and having regard to the service which they render to the community, that the normal hours of working should not be subject to the restrictions imposed by sections 9 or 10, (2) those in which there is no need for complete freedom from these restrictions, but in which an adjustment merely as regards the hours set out in section 9 is sufficient, (3) those in which neither the requirements of the trade nor, of course, the interest of the general public 858 would suffer if the establishment adjusted its operations in conformity with the Act. The first head is dealt with by section 4 of the Act which reads: "4. Provisions of sections 9 and 10 not applicable to certain establishments. Nothing in sections 9 and 10 shall apply to (a) clubs, hotels, boarding houses, stalls and refreshment rooms at the railway stations; (b) shops of barbers and hair dressers; (c) shops dealing mainly in meat, fish, poultry, eggs, dairy produce (except ghee), bread, confectionery, sweets, chocolates, ice, ice cream, cooked food, fruit, flowers, vegetables or green fodder; (d) shops dealing mainly in medicines or medical or surgical requisites or appliances and establishments for the treatment or care of the sick, infirm, destitute or mentally unfit; (e) shops dealing in articles required for funerals, burials or cremations; (f) shops dealing in pans (betel leaves), biris or cigarettes, or liquid refreshments sold retail for con sumption on the premises; (g) shops dealing in newspapers or periodicals, editing and despatching sections of the newspaper offices and offices of the news agencies; (h) cinemas, theatres and other places of public entertainment; (i) establishments for the retail sale of petrol and petroleum products used for transport; (j) shops in regimental institutes, garrison shops and troop canteens in cantonments; (k) tanneries; (1) retail trade carried on at an exhibition or show, if such retail trade is subsidiary or ancillary only to the main purpose of the exhibition or show; (m) oil mills not registered under the ; (n) brick and lime kilns; (o) commercial establishments engaged in the manufacture of bronze and brass utensils so far as 859 it is confined to the process of melting in furnaces; and (p) saltpetre refineries." Similarly by notification of the State Government State dated June 1, 1958, the following classes of establishments wer e exempted from the provisions of SS. 9 and 10: "(1) establishments dealing in the retail sale of Phullian, Murmura, sugar coated grams and Reoris; (2) commercial colleges of shorthand and type writing. (vide Punjab Government notification No. 6567. S Lab. 58/1737 RA, dated June 1, 1958.) (3)all booking offices of the Transport (vide Punjab Government notification No. 6147/ 5815 C Lab 58/1741 RA, dated June 1, 1958). " (2)The second category of cases are those covered by the second and third provisos to section 9. Action has been taken under the third proviso to section 9, by a notification which was issued at the same time as when the Act was brought into force which runs in the following terms: "The following categories of establishments in the State of Punjab shall not open earlier than eight o 'clock in the morning or close later than six o 'clock in the evening during the period from 1st May to thirty first August every year: (1)establishments dealing in timber, manufacture of furniture, tents, supply of furniture or tents on hire, cycles or their repairs or painting or dyeing; (2)establishments, other than tailoring establishments, which include 'workshops ' or other establishments where articles are produced, adapted or manufactured, with a view to their use, transport or sale; and (3) establishments dealing in agricultural produce brought for sale by producers.(vide Notification No. 6567. S Lab 58/1735 RA, dated June 1, 1958)." (3) Those outside section 4 and which are not covered by notifications under the provisos to section 9 have, of 860 course, to adjust their business in accordance with the requirements of the Act. It is in the context of these exceptions and the elasticity for which provision is made to meet the imperative requirements of particular types of business, that the constitutional objection has to be considered. The constitutional objection is that, the impugned provisions impose unreasonable restrictions on the fundamental right of the petitioners "to carry on their trade or business". The regulation of contracts of labour so as to ameliorate their conditions of work is in reality a problem of human relationship and social control for the advancement of the community. The public and social interest in the health and efficiency of the worker is, at the present day, beyond challenge. Our Constitution does not protect or guarantee any fundamental right in the nature of the provision in article 1, section 10(1), of the U. section Constitution against "impairment of the obligation of contracts". The only test of constitutional validity therefore is whether the provision in the impugned law, which is enacted to avoid physical overstrain of the worker, and so as to afford him better conditions of work, and more regulated hours, thus ensuring to him a reasonable amount of leisure factors which would render the restrictions in the interest of the general public, is unreasonable from the point of view of the employer. For answering this question it would be necessary to ask are the restrictions necessary, or do they go beyond what is reasonably needed to protect the worker? Judged by this test, neither the 48 hour week, nor the specification of the opening and closing hours can be said to have gone beyond what by modern standards are necessary for ensuring the health and efficiency of the employee. It might also be added that the concept of what is necessary to secure the welfare of labour, or indeed of the elements which determine its content are neither of them fixed or static, but are dynamic, being merely the manifestation or index of the social conscience as it grows and develops from time to time. Besides, this point regarding restrictions of this 861 nature being unreasonable is concluded against the petitioners by the decision of this Court in Manohar Lal vs The State of Punjab (1) judgment on which was delivered on November 11, 1960. The provision there impugned was section 7 of the Punjab Trade Employees Act, 1940, (which, as stated earlier, had been repealed and re enacted with modifications by the Act) which directed that the shops and establishments to which it applied should remain closed on one day in the week (corresponding to section 10 of the Act of 1958). The appellant before this Court was a small trader who did not employ any person under him but who, like the second petitioner before us, himself with the members of his family attended to all the requirements of his shop. Basing himself on this feature he challenged the validity of the provision which restricted his right to carry on his business in such manner as he chose on all the seven days in the week. In repelling these objections this Court said: "The ratio of the legislation is social interest in the health of the worker who forms an essential part of the community and in whose welfare, therefore, the community is vitally interested. It is in the light of this purpose that the provisions of the Act have to be scrutinized. . The learned Judges of the High Court have rested their decision on this part of the case on the reasoning that the terms of the impugned section might be justified on the ground that it is designed in the interest of the owner of the shop or establishment himself and that his health and welfare is a matter of interest not only to himself but to the general public. A restriction imposed, with a view to secure thi s purpose would, in our opinion, be clearly saved by article 19(6). Apart from this, the constitutionality of the impugned provision might be sustained on another ground also, viz., with a view to avoid evasion of provisions specifically designed for the protection of workmen employed. It may be pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would (1) ; 862 be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will not stamp a law otherwise valid as within legislative competence with the character of unconstitutionality as being unreasonable." These observations, in our opinion, clearly apply and suffice to support the validity of the related provisions here impugned. The petition fails and is dismissed with costs. Petition dismissed.

Section 7 of the Punjab Shops and Commercial Establishments Act, 1958, provided that no person shall be employed about the business of an establishment for more than forty eight hours in any week and nine hours in any one day. Under section 9 of the Act no establishment shall save otherwise provided by the Act,open earlier than ten o 'clock in the morning or close later than eight o 'clock in the evening. The petitioners challenged the constitutional validity of the aforesaid provisions of the Act on the ground that having,, regard to the nature of their business, it would be impossible for them to carry it on in the manner in which they were doing unless the Act permitted them to work without regard to the restrictions imposed by the limitation as to hours of work of employees under section 7(1) or the hours for the opening and closing of the establishments under section 9, and that, 853 consequently, these provisions imposed unreasonable restric tions on their fundamental right to carry on their trade or business under article 19(1)(e) of the Constitution of India. The petitioners ' case was that their business was such that the customers who supplied them with goods brought them in vehicles which arrived at their godowns at all hours of the day and night and that they received messages by telephone and telegram similarly both during day and night. These according to them rendered it necessary that their place of business should be kept open practically for all the 24 hours of the day. Held, that ss.7 and 9 of the Punjab Shops and Commercial Establishments Act, 1958 are intra vires the Constitution of India. The test of constitutional validity is whether the impugned provisions of the Act which were enacted to afford the worker better conditions of work and more regulated hours so as to avoid physical overstrain and ensure to him a reasonable amount of leisure in the interest of the general public, are unreasonable restrictions from the point of view of the employer and go beyond what is reasonably needed to protect the worker. judged by this test, neither the 48 hour week, nor the specification of the opening and closing hours could be said to have gone beyond what by modern standards are necessary for ensuring the health and efficiency of the employee. Manohar Lal vs The State of Punjab, ; , followed.

On August 19, 1964, officers belonging to the Department of the appellant raided and searched the premises of a company and foreibly removed certain accounts and goods. The respondents challenged the department 's action by writ petitions filed in the High Court under article 226 of the Constitution praying that the articles seized should be returned. It was contended by the petitioners that on a proper construction of section 41 of the Madras General Sales Tax Act, No. 1 of 1959, the officers of the Department had no authority to search the premises and seize any account books or goods found there; that if section 41(4) authorised seizure and confiscation of goods, it was beyond the legislative competence of the State Legislature, for it was not covered by item 54 of List II of the Seventh Schedule to the Constitution relating to "taxes on the sale or purchase of goods"; and that if various provisions in section 41 were capable of being construed as authorising search and seizure, they were violative of article 19(1)(f) and (g) of the Constitution. The High Court allowed the Petitions holding, inter alia, that section 41 (2) did not permit a search being made and only provided for inspection; the power of seizure or confiscation in section 41(4) was beyond the legislative competence of the State Legislature; and that subsections (2), (3) and (4) of section 41 contained unreasonable res trictions and were violative of article 19(1) (f) and (g). The High Court also found with respect to one of the petitions that the search warrant had been issued without the application of Mind by the magistrate and was bad. On appeal to this Court; Held: dismissing the appeal, (i)Anything recovered during the search must be returned to the petitioners for the safeguards provided by section 165 of the Code of Criminal Procedure were not followed and in one case the finding of the High Court that the search warrant issued by the magistrate was bad on various grounds was not challenged; furthermore anything confiscated must also be returned as sub section (4) of section 41 must fall.[163 B D]. Clause (a) of the second proviso to sub section (4) gives power to the officer ordering confiscation to give the person affected an option to pay in lieu of confiscation, in cases where the goods are taxable under the Act, the tax recoverable and an additional amount and thus provides for recovery of tax even before the first sale in 149 the State which is the point of time in a large majority of cases for recovery of tax. As such it was repugnant to the entire scheme of the Act and sub section (4) must therefore be struck down. As Clause (a) compels the officer to give the option and thus compels recovery of tax before the first point of sale, which cannot have occurred in cases of goods seized from the dealer himself, it is clearly intended by the legislature to go together with the main part of the Section and is not therefore severable. [159F 16OD]. (ii) Although generally speaking the power to inspect does not give power to search, where, as in the case of section 41 (2) the power has been given to inspect not merely accounts registers, records, goods, etc., but also to inspect the offices, shops etc. , these two powers together amount to giving the concerned officer the power to enter and search the offices etc. and if he finds any accounts or goods in the offices, shops, etc., to respect them. The High Court was therefore wrong in holding that there was no power of search whatsoever under sub section (2). [154H 155E]. The proviso to sub section (2) in providing that all searches under "this sub section" shall be made in accordance with the provisions of the Code of Criminal Procedure, bears out the construction that the main part of sub section (2) contemplates searches. Similarly it is clear from sub section (3) which gives power to seize accounts etc., in certain circumstances, that sub section (2) must include the power of search for a seizure under sub section (3) is not possible unless there is a search. [156D E. 158B C]. The contention that as the main part of sub section (2) does not provide for search of a purely residential accommodation and therefore the proviso is otiose must be rejected. Although generally a provision is an exception to the main part of the section, it Is recognised that in exceptional cases, as in the present case, the provision may be a substantive provision itself. [156D F]. Bhonda Urban District Council vs Taff Vale Railway Co., L. R. Commissioner of Income tax vs Nandlal Bhandari & Sons , and State of Rajasthan vs Leela Jain. ; , referred to. (ii)Sub sections (2) and (3) of section 41 are not violative of article 19 as they are protected by clauses (5) and (6) of article 19 of the Constitution. [162F G]. The High Court had wrongly assumed that the provisions of the Criminal Procedure Code did not apply to a search under section 41(2). In view of the safeguards provided in section 165 Cr. P.C. and in Chapter VII of that Code, it cannot be said that the power to search provided in sub section (2) is not a reasonable restriction keeping in View the object of the search, namely, prevention of evasion of tax. [161EG]. The mere fact that the Act gives power to Government to em power any officer to conduct the search is no reason to strike down the provision for it cannot be assumed that Government will not empower officers of proper status to make searches. [160 H], To, exercise the power of seizure under sub section (3) the officer concerned has to record his reasons in writing, has to give a receipt for the accounts seized, and can only retain the items seized beyond a period of 30 days with the permission of the next higher officer. These are sufficient safeguards and the restriction, if any, on 150 the right to hold property and the right to carry on trade by sub section (3) must therefore be held to be a reasonable restriction. [162 D G]. While the court held that the Legislature has power to provide for search and seizure in connection with taxation law in order that evasion may be checked, it did not decide the general question whether a power to confiscate goods which are found on search and which are not entered in account books of the dealer is an ancillary power necessary for the purpose of stopping evasion of tax. [159C D]. K.S. Papanna and another vs Deputy Commercial Tax Officer, Gunkakal, (1967) XIX S.T.C. 506; referred to.

The appellants, one a Sub Divisional Officer and the other a Naib Tehsildar, were entrusted with the duty of allotting land to displaced persons. The first respondent forcibly occupied the land allotted to B. On May 9, 1958, the first appellant ordered that B and other allottees similarly situated would be given possession of lands allotted to them on May 20, 1958. On May 16, 1958. the first respondent and others threatened with dispossession filed petitions in the High Court under article 226 of the constitution and obtained interim stay of delivery of possession till May 19, 1958, when the petitions would come up before the Division Bench for admission. On May 19, 1958, the Division Bench extended the operation of the stay order until May 23, 1958. The notice of the first stay order reached the appellants on May 19, 1958, but no notice of the second order was officially communicated to them till May 21, 1958. It was alleged that on May 20, 1938, the appellants, although informed of the second stay order by certain interested persons and the Advocate for one of the parties, formally dispossessed the respondent in disobedience of the Court 's order and handed over possession of the land to B. On the complaint of the respondent the High Court field that the .appellants were guilty of contempt of Court and, instead of committing them for contempt, administrated a warning as the appellants honestly believed that they were not bound to stay delivery of possession in absence of an official communication. The appellants appealed by special leave. Held, (per Das and Subba Rao, JJ.)that in a case of contempt for disobedience of a prohibitive order, as distinguished from an order of affirmative nature, it was not necessary to show that notice of the prohibitory order was served upon the party against whom it was granted. It would be sufficient if it was proved that the party had notice of it aliunde. N.Baksi vs O. K. (Thosh, A. T. R. (19.)7) Patn. 528, referred to. 128 There may be circumstances where officials entrusted with the carrying out of a legal order might have valid reasons to doubt The authenticity of the order conveyed to them by interested parties. But in the present case there could hardly be any such reasons. The appellants had really no justification for doubting the authenticity of an order communicated to them by an Advocate. Held, further. that in a matter relating to contempt of court, there cannot be both justification and apology. shareef vs The Hon 'ble Judges of the High Court of Nagpur; , , referred to. Although the appellants might have honestly believed that they were not bound to bold their band in absence of an official communication, that would be no defence to the charge of contempt of court, but only a relevant consideration in awarding the sentence. Per Daval, J. Contempt proceedings are criminal or quasi criminal in nature and it is essential that before any action can be taken the accusation must be specified in character. In the instant case, the respondent did not state that he was formally dispossessed. This would 'be for some reason if actual posssssion had been delivered. He could not be said to have come to court with clean hands. Further, the finding of the High Court that the appellants delivered possession honestly believing that they were not bound not to do so in the absence or the official communication meant that there was no defiance of the High Court 's order. There could be no willful disobedience since there was no belief in the existence of the order. It may not be necessary that the party against whom a prohibitory order was made must be served with the order, but it should have notice of the order before it could be expected to obey. Such notice must be from sources connected with the court passing the order. The alleged knowledge of the party cannot be made, to depend on the veracity of the witnesses examined by the party praying for action. In re Bryant L.R (1987 6) In Ex Parte Langly, Exparte Smith. In re Bishop L. R. and The Seraglio. L. R. , discussed.

The appellant land owner held lands in excess of 30 standard acres as on 6.4.1960. He filed a return as required by the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 and an enquiry was initiated by the Authorised Officer concerned under Section 9(2)(b) of the Act. Several objections raised by the appellant were rejected and the Authorised Officer came to the conclusion that the family of the appellant could be reckoned to be of five members be tween 6.4.1960 and 2.10.1962 and thus the appellant was entitled to 30 standard acres; his wife and daughter however could hold 10 and 7.71 standard acres respectively as strid hana. The appellant was asked to elect which lands he wished to be included in his holding and state which lands should be treated as surplus. Feeling aggrieved by the said deter mination, the appellant preferred an appeal under Section 78(1) to the Land Tribunal. The appellant contended (i) that the Authorised Officer had wrongly included the lands of his minor sons, unmarried daughter and wife gifted to them long before 1960; (ii) that subsequent to the filing of the appeal, the Act was amended as a consequence whereof his rights and liabilities with regard to the fixation of ceil ing area were required to be worked out on the basis of the revised date of commencement of the Act i.e. 15.2.1970; notified date being 2.10.1970. It was also urged by the appellant that the lands of his eldest son Laxminarayanan could not be included in his holding. On those grounds amongst others relating to the effect of subsequent transac tions the appellant prayed that the matter ought to be remanded to the Authorised Tribunal for a de novo considera tion. The appellant authority rejected all the contentions and dismissed the appeal, whereupon the appellant preferred a revision application before the High Court. Before the High Court his plea regarding subsequent transactions was confined to the documents executed between 15th February 1970, the date of commencement of the 359 Act, and 2nd October 1970, the notified date; contentions regarding other transactions were not pressed. The High Court accepted this contention and took the view that even in respect of proceedings which commenced prior to the coming into force of the Amending Act, an affected person can take advantage of the provisions contained In Section 2 IA. The High Court held that while Section 2 of the Amending Act reduced the ceiling area to half, benefit was conferred by Section 21A and hence both the provisions had to be read together. On that reasoning the High Court opined that the three documents relating to subsequent transactions executed between the said date, could not be ignored in fixing the ceiling area unless it was found that the documents were executed to defeat the provisions of the Act, in which case the transactions may be declared void under Section 22 of the Act. The High Court accordingly directed the Authorised Officer to make further inquiries regarding the three trans actions in question and pass appropriate orders. The High Court rejected the other contentions. The appellant being aggrieved with the rejection of other points raised before the High Court has preferred this appeal by special leave. Dismissing the appeal, this Court, HELD: The proceedings in this case had started and concluded before the Authorised Officer long before the Amending Act saw the light of the day. Under Section 3(1) of the Amending Act, any action taken (including any order made, decision or direction given, proceeding taken, etc.) under the provisions of Act before the date of publication of the Amending Act, can be continued and enforced after the said date in accordance with the provisions of the Act as if the Amending Act had not been passed. This is however, subject to subsection (2) which carves out an exception to sub section (1) insofar as the reduction of the ceiling area from 30 standard acres to 15 standard acres is concerned. [367E G] B.K.V. Radhamani Ammal vs Authorised Officer, Land Reforms, Coimbatore, , referred to.

Writ Petitions/Civil appeals challenging the notifica tion dated 31st May, 1979 which substituted a new rule 17(2) of U.P. Excise Rules and provided for a vend fee, the amend ment to section 49 of the Bombay Prohibition Act, 1949 treating exclusive privilege for State in liquor trade and imposing a transport fee, the Bombay Prohibition Act, 1949 as amended from time to time along with ordinance No. 15 of 1981 amending the Bombay Prohibition Act, 1949 and Section 49 added by reason of which the State was granted exclusive privilege of importing, exporting, transporting, manufactur ing, bottling, selling, buying, processing or using any intoxicant; and seeking a declaration that alcohol plant of the petitioner company was not covered by the A.P. Excise Act, 1968. 'A.P. Distillery Rules, 1970, and A.P. Rectified Spirit Rules. 1971 and that alcohol plant of the company was not a 'distillery ' within the meaning of the said expression under the A.P. Distillery Rules and, therefore, the Distill ery Rules had no application thereto and seeking an order to restrain from interfering with and/or regulating and con trolling production, distribution, movement and supply of alcohol from the plant of the company and the Tamil Nadu Prohibition Act, were filed in this Court. Review Petitions against the judgment and order of this Court dated 19th December, 1979 in State of U.P. etc. vs Synthetics and Chemicals Ltd. and Ors. ; , re agitating challenge 625 to sections 24A and 24B of the U.P. Excise Act, 1910 as amended in 1972 and 1976, declaring exclusive privilege of the Government for manufacture and sale of foreign liquor as defined, which included denatured spirit and industrial alcohol, were also filed. The petitioners/appellants contended that the levies made by the respondent States on alcohol, which was utilised as raw material by the industries for manufacturing the products were invalid. Some of three industries 'themselves manufactured alcohol as they had their own distillaries ' and from where it passed through pipelines to their industrial units, where this was used as a raw material, whereas some purchased alcohol or denatured spirit on being allotted by the Government. It was alleged that, in addition to excise duty levied by the Central Government, excise duty and various levies in various names like vend lee, transport fee and others numbering about eight levies were imposed by the State Government. It was also contended that the State Legislature had no authority, in view of Entry 84 of List I read with Entry 51 of List I1 to impose such levies; this being alcohol which did not within the ambit of alcoholic liquors for human consumption. It is only the centre which had the authority to tax under Entry 84, and that Entry 8 In List II only authorised the State Legislature to enact laws to regulate but did not empower it to impose any levy and the various levies which hod been imposed by the State Legislature on industrial alcohol and even methylated spirit could not be brought within the ambit of regulatory duties for purposes of regulation only, and, therefore, could not be justified under Entry 8 of List H, that doctrine of privilege and consideration for sale of privilege could be available to the State only in respect of alcohol or alco holic liquors which were for human consumption. that by merely widening the definition of intoxicating liquors in respective excise laws enacted by the States, the ambit of authority of taxation could not be enlarged by the State Legislature when in List II Entry 51 the words used were alcoholic liquors for human consumption. It was further contended that though the direction and commitment to im provement of the standards of living contained in Article 47 of the Constitution must be kept in view, this improvement could be achieved primarily by industrialisation involving increased production and employment and giving priority to the core sectors, that the Industries (Development & Regula tion) Act, 1951 was enacted with a view to developing and controlling various important industries and that the peti tioners/appellants were predominantly and primarily con cerned with using ethyl alcohol (rectified spirit) as an industrial raw material and this industrial alcohol is required as an input for further manufacture of downstream products. 626 It was submitted on behalf of Union of India that the legislative competence of the State enactments in the var ious States would have to be determined by reference to Entries 7, 52, 59, 84, 96 and 97 of List I and Entries 8, 24, 26, 27, 51, 52, 54, 56, 62 of List II and Entries 19 and 33 of List III, that then was a dichotomy between Entry 84 of List I and Entry 52 of List II, but this would not con trol the interpretation of other entries and that there was no such dichotomy in Entry 8 of List II, that the power to levy taxes had to be read from entry relating to the taxes and not from general entry, that none of the taxing entries in List II was controlled by Entry 52 of List I, that State 's privilege to completely prohibit or farm out liquor containing alcohol for consumption did not comprehend a similar right of the State with regard to other intoxicating liquids containing alcohol and to so prohibit or collect fee for farming out, would be unconstitutional under Article 19(1)(g) of the Constitution, that under Entry 51 of List II, State Legislature had no power to levy excise duty on industrial alcohol, as it was not fit for human consumption, and though the State could collect an amount called vend fee, shop rent, etc. for conferring on a citizen the right to manufacture and sell alcoholic liquors if it is for human consumption, this power did not extend to industrial alcohol or alcohol contained in the medicinal or toilet prepara tions; On behalf of the respondent States; it was contended that: (a) Entry 52 of List I was an exceptional entry, which not only prescribed the field of legislation but also ena bled and empowered the Parliament to make laws to the exclu sion of the State and that, being exclusionary in nature unlike entries merely delineating fields of legislation, this entry had to be strictly and, therefore, narrowly construed; (b) whenever the Constitution intended the Parliament to assume legislative competence in respect of the entire field, a declaration of an unqualified nature was provided for unlike qualified provi sion like Entry 52 of List 1, (c) the words 'control ' and 'regulation ' were, at times, held to he interchangeable or used synonymously, but their use in the various entries either singly or jointly, indi cated that they were sought to convey a different sense and the word 'control ' had in the context, a narrower meaning, excluding details of regulatory nature by the State; (d) comparing Entries 7, 23, 24, 27, 62, 64 and 67 of List I with Entry 52, would demonstrate that under entry 52, it was not the entire 627 field which was sought to be covered but only the control of industries; and that the absence of inclusion of qualifying words like 'the control of which ' could not be brushed aside; (e) in view of the declaration made in Section 2 of the I.D.R. Act, 1951 and the provisions made therein, the entire field was not occupied and the vend fee or other impost by the State legislatures were not infringing in the field treaded by the Central Legislature; the Act did not preclude or eclipse the legislative powers of the State; the Act also did not apply on its own terms to the levy; these operated on different tracks; (f) the Parliament had no power to legislate on indus trial alcohol, since industrial alcohol was also alcoholic liquor for human consumption and Entry 84 in List I express ly excluded this category and, therefore, the residuary Entry 97 of List I would not operate as against its own legislative intent; (g) the State had legislative competence to impose the levy since it was, both on its language and in pith and substance, legislation failing under Entry 8 List II, intox icating liquor, and Entry 51 List II, alcoholic liquor for human consumption, and what was required was intoxicating liquor and/or alcoholic liquor for human consumption; (h) that the State had exclusive right to deal in liq uor, and this power was reserved by and/or derived under, Article 19(6) and 19(6)(ii) of the Constitution, for parting which a charge was levied, and in a series of decisions it had been ruled that the charge was neither a fee nor a tax and was termed as privilege; (i) there was no dichotomy between Ethyl Alcohol, to be used for beverages and for industrial purposes, and in any case the levy was on manufacture of the Ethyl Alcohol, and the dichotomy attempted to be drawn in Entry 84 of List I on the basis of the development of the concept of industrial alcohol and the inapplicability of the concept of potable liquor to the industry of alcohol was not valid. (j) the levy was consistent with wider interpretation of alcoholic liquor based on pre existing legislative history; (k) when two interpretations were possible, the choice must fall on that interpretation which validated existing State legislations designed to raise revenues and rejection of the other interpretation 628 which was destructive of the scheme of distribution of powers; (1) the words 'alcoholic liquor ' in Lists I & II of the 7th Schedule to the Constitution must be interpretated so as to mean and take within its sweep alcohol as first obtained in the process of or as a product of fermentation industry at which stage, it was capable of being rendered potable, and the fact that it may be rendered unfit for human con sumption, did not render the substance any less liable for taxation; (m) imposition of a fee would be the most effective method of regulating intoxicating liquor other than alcohol and could be justified as the reasonable measure in regard to intoxicating liquor as it is the duty of the State, being a welfare State, to denature by incurring extra cost and effort; quid pro quo was not necessary and, even if it was necessary, the requirements were met; and the price fixation was 'a valid method in regulation of consumption; (n) under its police powers, the State had to regulate health, morality, welfare of society and incidental pauper ism and crime; (o) in enacting a law with respect to intoxication liquor as part of the legislative power, measures of social control and regulation of private rights were permissible and as such may even amount to prohibition; (p) it has been accepted by Courts all along that the 'police power ' of the State enabled regulations to be made regarding manufacture, transport, possession and sale of intoxicating liquor; and such police power could be exer cised as to impose reasonable restrictions as to effectuate the power; (q) trade in alcoholic drinks or intoxicating drinks, being obnoxious and injurious to health, a citizen had no fundamental right under Article 19(1)(g) of the Constitution and it Is the privilege of the State alone and it can part with this privilege on receipt of a consideration; (r) the levy was stipulated jointly or severally, both under ' Entries 8 of List II, Entry 51 of List II, Entry 33 of List III and what was described as police powers regula tory and other incidental charges, and the levy was justi fied, being a regulatory power under Article 19(6), and 19(6)(ii); the State had. a monopoly in alcohol trade and Article 31C 629 granted immunity to the challenge under Articles 13, 14 and 19 of the Constitution, and under Article 298, trading power of the State must be recognised, coupled with century old monopoly of the State in alcohol; and (t) the vend fee was a pre constitutional levy, and so saved under Article 277 of the Constitution: it was not a law either under Article 246 or Article 254 and was, there fore, outside the purview of the Central Act. On the questions: (i) whether the vend fee in respect of the industrial alcohol under different legislations and rules in different States was valid; (ii) whether the power to levy excise duty m case of industrial alcohol was with the State legislature or the Central legislature; (iii) what was the scope and ambit of Entry 8 List Ii of the Seventh schedule of the Constitution; and (iv) whether, the State Government had exclusive right or privilege of manufactur ing, selling, distributing, etc. of alcohols including industrial alcohol, and what was the extent, scope and ambit of such right of privilege, Allowing the Writ Petitions, Civil Appeals and Review Petitions, this Court, HELD: Majority: (E.S. Venkataramiah, C.J.I, Sabyasachi Mukharji, Ranganath Misra, B.C. Ray, K.N. Singh and section Natarajan, JJ.) Per Sabyasachi Mukharji, J. 1.1 The relevant provisions of the U.P Excise Act, 1910, A.P. Excise Act, 1968, Tamil Nadu Act, and Bombay Prohibi tion Act, 1949 are unconstitutional insofar as these purport to levy a tax or charge imposts upon industrial alcohol, namely, alcohol used and usable for industrial purposes. [680G H] 1.2 Having regard to the principles of interpretation and the Constitutional provisions, in the light of the language used and, having considered the impost and the composition of industrial alcohol, and the legislative practice of this country. the imposts in question cannot be justified as State imposts. [680G H] 1.3 The different provisions, in question are not merely regulatory, but are much more than that. These seek to levy imposition in their pith and substance, not as incidental or as merely disincentives, 630 but as attempts to raise revenue for States ' purposes. There is no taxing provision permitting these in the lists in the field of industrial alcohol for the State to legislate. Furthermore, in view of the occupation of the field by the Industrial Development and Regulation Act, it was not possi ble to levy this impost. Besides, in view of the language used in the specific provision the levy is not on the manu facture of alcohol as such. Therefore, these levies cannot in essence be sustained as duty of excise, [681A B] 2.1 The meaning of the expressions used in the Constitu tion must be found from the language used. The words of the Constitution should be interpreted on the same principle of interpretation as one applies to an ordinary law but these very principles of interpretation compel one to take into account the nature and scope of the Act which requires interpretation. [672H, 673A] 2.2 A Constitution is the mechanism under which laws are to be made and not merely an Act which declares what the law is to be. [673B] 2.3 It is also well settled that a Constitution must not be construed in any narrow or pedantic sense and that con struction which is most beneficial to the widest possible amplitude of its power, must be adopted. An exclusionary clause in any of the entries should be strictly and, there fore, narrowly construed. No entry should, however, be so read as not to rob it of entire content. A broad and liberal spirit should, therefore, inspire those whose duty it is to interpret the Constitution, and the Courts are not free to stretch or to pervert the language of an enactment in the interest of any legal or constitutional theory. Constitu tional adjudication is not strengthened by such an attempt but it must seek to declare the law. It must not try to give meaning on the theory of what the law should be, but must so look upon a Constitution that it is a living and organic thing and must adapt itself to the changing situations and pattern in which it has to be interpreted. Where division of powers and jurisdiction in a federal Constitution is the scheme, it is desirable to read the Constitution in harmoni ous way. Further, in deciding whether any particular enact ment is within the purview of one Legislature or the other, it is the pith and substance of the legislation in question that has to be looked into. [673B E] 3.1 It is well settled that the various entries in the three lists of the Indian Constitution are not powers but fields of legislation. The power to legislate is given by Article 246 and other Articles of the Constitution. The three lists of the 7th Schedule to the Constitution are legislative heads or fields of legislation. These demarcate the area over 631 which the appropriate legislatures can operate. [673F] 3.2 It is also well settled that widest amplitude should be given to the language of the three entries but some of these entries in different lists or in the same list may over ride and sometimes may appear to be in direct conflict, with each other, then and then comes the duty of the Court to find the true intent and purpose and to examine the particular legislature in question. Each general word should be held to extend to all anciliary or subsidiary matters which can fairly and reasonably be comprehended in it. [673F G] 3.3 In interpreting an entry it would not be reasonable to import any limitation by comparing or contrasting that entry with any other in the same list. It has to be inter preted that the Constitution must be interpreted as the organic document in the light of the experience gathered. [673H] 3.4 In the Constitutional scheme of division of power under the legislative lists, there are separate entries pertaining to taxation and other laws. [674A] The relevant entries in the Seventh Schedule to the Constitution demarcate legislative fields and are closely linked and supplement one another. [674E] The Constitution of India like most other Constitutions is an organic document. It should be interpreted in the light of the experience. It has to be flexible and dynamic so that it adapts itself to the changing conditions and accommodates itself in a pragmatic way to the goals of national development and the industrialisation of the coun try. This Court should, therefore, endeavour to interpret the entries and the powers in the Constitution in such a way that it helps to the attainment of undisputed national goals, as permitted by the Constitution. [674C D] M.P.V. Sundararamier & Co. vs State of A.P., ; at pages 1480 82, relied on. The India Cement Ltd. etc. vs The State of Tamil Nadu etc., and Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 at 37 38, referred to. 4.1 The expression of a Constitution must be understood in its common and normal sense. Industrial alcohol as it ISI, is incapable of 632 being consumed by a normal human being. The expression 'consumption ' must also be understood in the sense of direct physical intake by human beings in this context. No doubt, utilisation in some form or the other is consumption for the benefit of the human beings, if industrial alcohol is uti lised for production of rubber, tyres used. But the utilisa tion of those tyres in the vehicle of man cannot in the context in which the expression has been used in the Consti tution, be understood to mean that the alcohol has been used for human consumption. [665C D] 4.2 The expression 'alcoholic liquor for human consump tion ' was meant and still means that liquor which, as it is, is consumable in the sense capable of being taken by human beings as such as beverage of drinks. Hence, the expression under Entry 84 List I must be understood in the light. [665E] 4.3 Constitutional provisions specially dealing with delimitation of powers in a federal polity must be under stood in a broad commonsense point of view as understood by common people for whom the Constitution is made. In termi nology, as understood by the framers of the Constitution and as also viewed at the relevant time of its intepretation it is not possible to proceed otherwise. Alcoholic or intoxi cating liquors must be understood as these are, what these are capable of or able to become. [665G H] 5.1 By common standards ethyl alcohol (which has 95%) is an industrial alcohol and is not fit for human consumption. The petitioners and the appellants were manufacturing ethyl alcohol (95%) (also known as rectified spirit) which is an industrial alcohol. ISI specification has divided ethyl alcohol (as known in the trade) into several kinds of alco hol. Beverage and industrial alcohols are clearly and dif ferently treated. Rectified spirit for industrial purposes is defined as "spirit purified by distillation having a strength not less than 95% of volume by ethyl alcohol". Dictionaries and technical books would show that rectified spirit (95%) is an industrial alcohol and is not potable as such. Therefore, industrial alcohol which is ethyl alcohol (95%) by itself is not only non potable but is highly toxic. The range of spirits of potable alcohol is from country spirit to whisky and the Ethyl Alcohol content varies be tween 19 to about 43 per cent. These standards are according to the ISI specifications. Therefore, ethyl alcohol (95%) is not alcoholic liquors for human consumption but can be used as raw material input after processing and substantial dilution in the production of whisky, Gin, Country Liquor, etc. [677D G] 633 Delhi Cloth and General Mills Co. Ltd. vs The Excise Commissioner, U.P. Allahabad and Anr., Special Appeal No. 177 of 1970, decided on 29.3.1973, referred to. 6.1 Entry 8 of List I which contains the words "intoxi cating liquor ' ' cannot support a tax. The meaning of this expression has been rightly interpreted by the High Court in Balsara ' s case. Hence, the observations of this Court in Balsara 's case require consideration. [677H, 675A B] 6.2 In the light of the new experience and development, "intoxicating liquor" must mean liquor which is consumable by human being as it is. When the word "liquor" was used by this Court, it did not have the awareness of full use of alcohol as industrial alcohol. It is true that alcohol was used for industrial purposes then also, but the full poten tiality of that user was not then comprehended or under stood. With the passage of time, meanings do not change but new experience give new colour to the meaning. [675B C] F.N. Balsara vs State of Bombay, AIR 1951 Born 210 & 214, approved. State of Bombay & Anr. vs F.N. Balsara, ; Har Shankar & Ors. etc. vs The Dy. Excise & Taxation Commissioner & Ors., ; ; Adhyaksha Mathur Babu 's Sakti Oushadhalaya Dacca (P) Ltd. vs Union of India, ; M/s Guruswamy & Co. etc. vs State of Mysore & Ors. , ; State of Mysore vs S.D. Cawasji & Co. & Ors., ; ; R.C. Jallv. Union of India, [1962] Suppl 3 S.C.R. 436; Om Prakash vs Giriraj 'Kishore; , ; Inspector of Taxes vs Australian Mutual Provident Society, [1959] 3 All England Law Report 245 and Commonwealth of Massachusetts Et AI vs USA, 92 Lawyers, Edition p. 968, referred to. 6.3 Article 47 of the Constitution imposes upon the State the duty to endeavour to bring about prohibition of the consumption except for medicinal purpose of intoxicating drinks and products which are injurious to health. If the meaning of the expression "intoxicating liquor" is taken in the wide sense adopted in Balsara 's case, it would lead to an anamolous result and would oblige the State to prohibit even such industries as are licensed under the IDR Act but which manufacture industrial alcohol. This was never intend ed by the Constitution or judgments of this Court. There fore, the decision in the Synthetics & Chemicals Ltd. 's case was not correct on this aspect. [679C D] State of U.P., etc. vs Synthetics & Chemicals Ltd. & Ors. etc., 634 ; and State of Bombay & Anr. vs F.N. Balsara, , overruled. K.K. Narula vs State of J & K, ; , referred to. The Indian Constitution does not recognise police power as such. But, the exercise of sovereign power, which gives the State sufficient authority to enact any law, subject to the limitations of the Constitution to discharge its functions must be recognised. The Indian Constitution as a sovereign State has power to legislate on all branches except to the limitation as to the division of powers be tween the Centre and the States, and also subject to the fundamental rights guaranteed under the Constitution. The Indian State, between the Centre and the States, has sover eign power. The sovereign power is plenary and inherent in every sovereign State to do all things which promote the peace, morals, education and good order of the people. Sovereignty is difficult to define. This power of sovereign ty is, however, subject to Constitutional limitations. [666F H] 8.1 In interpreting the provisions of the Constitution, one should go by the plain words used by the Constitution makers. Importing of expression like 'police power ', which is a term of variable and indefinite connotation, can only make the task of interpretation more difficult. [671B] State of West Bengal vs Subodh Gopal & Ors., at 601 604 and Kameshwar Prasad & Ors. vs The State of Bihar & Anr., ; , referred to. 8.2 The power of the State to regulate, though not as emanation of police power, but as an expression of the sovereign power of the State is recognised, but that power has its limitations. [671G] 8.3 Whether the States have the police power or not, they have the power to regulate the use of alcohol, and that power must include power to make provisions to prevent and/or check industrial alcohol, being used as intoxicating or drinkable alcohol. However, the question is whether, in the garb of regulations, a legislation which is in pith and substance, fee or levy which has no connection with the cost or expenses administering the regulation, could be imposed purely as regulatory measure. [671D E] In the instant case, judged by the pith and substance of the legisla 635 tion in question, these levies cannot be treated as part of regulatory measures.[671E] 9.1 The activity in potable liquor, which was regarded as a safe and exclusive right of the State earlier, cannot be justified under the police power of the State, i.e., the power to preserve public health, morals, etc. This reasoning can never apply to industrial alcohol manufactured by indus tries which are to be developed in the public interest, and which are being encouraged by the State. In such a situa tion, it is essential to strike a balance, and while doing so, it is difficult to find any justification for any exclu sive right of a State to deal with industrial alcohol. Restriction valid under one circumstance may become invalid in changing circumstances. [680C D] Nashville, Chattangooga & St. Louis Railway vs Herbert section Walters, 79 Lawyers ' Edition 949; Leo Nebbia vs People of the State of New York, 78 Lawyers ' Edn. 940 at p. 941 and Motor General Traders & Anr. vs State of Andhra Pradesh 9.2 Arbitrary and excessive imposts under the so called privilege of the States are a great disincentive for devel opment of industries in the public interest and for indus trial development in general and can render units unviable and sick. It is essential that there should be uniformity in the industry so that these are free from the vagaries and arbitrary and differential treatment meted out from State to State and even in the same State from time to time. [644C D] 9.3 Right to tax or levy must be in accordance with the provisions of the Constitution. It is clear that all duties of excise, save and except the items specifically excepted in entry 84 of List 1, are generally within the taxing power of the Central Legislature. The State Legislature has power, though limited in imposing duties of excise. That power is circumscribed under Entry 51 of List II of the 7th Schedule to the Constitution. [666H, 667A, 674G] 10. In view of the subsequent amendments and additions to the levies, the levies in question are not pre Constitu tional levies. [662E] 11.1 After 1956 amendment to the Industries (Develop ment and Regulation) Act, 1951 bringing alcohol industries (under fermentation industries)as item 26 of the First Schedule to the Act, the control of this industry has vested exclusively in the Union. Thereafter, licences to 636 manufacture both potable and non potable alcohol is vested in the Central Government. Distilleries are manufacturing alcohol under the Central Licences under IDR Act. No privi lege for manufacture even if one existed, has :been trans ferred to the distilleries by the State. The State cannot itself manufacture industrial alcohol without.the permission of the Central Government. The States cannot claim to pass a right which these do not possess. Nor can these States claim exclusive right to produce and manufacture industrial alco hol which are manufactured under the grant of licence from the Central Government. Industrial alcohol cannot upon coming into existence under such grant be amenable to States ' claim of exclusive possession of privilege. The State can neither rely on Entry 8 of List II nor Entry 33 of list III as a basis for such a claim. It cannot claim that under Entry 33 of List III, it can regulate industrial alcohol as a product of the scheduled ,industry, because the Union, under section 18 G of the IDR Act, has evinced clear intention to occupy tile whole field. Even otherwise, sec tions like Section 24A and 24B of the U.P. Act do not con stitute any regulation in respect of the industrial alcohol as product of the scheduled industry. On the contrary, these purport to deal with the so called transfer of privilege regarding manufacturing and sale. This power, admittedly, has been exercised by the State purporting to act under Entry 8 of list II and not under Entry 33 of list III. [681C F] 11.2 The position with regard to control of alcohol industry has, therefore, undergone material and significant change and the State is left with only powers to pass any legislation in the nature of prohibition of potable liquor referable to Entry 6 of list II and regulating powers, lay down regulations to ensure that non potable alcohol is not diverted and misused as a substitute for potable alcohol, and charge excise duty on potable alcohol and sales tax under Entry 52 of list II; however, sales tax cannot be charged on industrial alcohol in the present case, because under the Ethyl Alcohol (Price Control) Orders, sales tax cannot be charged by the State on industrial alcohol; and in case State is rendering any service, as distinct from its claim of so called grant of privilege, it may charge fees based on quidpro quo. [681G H, 682A C] Indian Mica and Micanite Industries vs State of Bihar, , relied on. 12.1 On an analysis of the various Abkari Acts and Excise Acts, it is clear that various provinces/States reserve to themselves in their respective States the right to transfer exclusive or other privileges only in respect of manufacture and sale of alcohol and not in respect of 637 possession and use. Not all but some of States have provided such reservation in their favour. The price charged as a consideration for the grant of exclusive and other privi leges was generally regarded as an excise duty. In other words, excise duty and price for privileges were regarded as one and the same thing. So called privilege was reserved by the State mostly in respect of country liquor and not for eign liquor which included denatured spirit. [682D E] 12.2 On an analysis of various decisions and practice, it is clear that is respect of industrial alcohol the States are not authorised to impose the impost they have purported to do. Hence, such impositions and impost must go as being invalid. However, this would not affect any impost so far as potable alcohol as commonly understood is concerned. It will also not affect any impositions of levy on industrial alco hol fee, where there are circumstances to establish that there was quid pro quo for the fee sought to be imposed. This will also not affect any regulating measure as such. [682F G] The provisions are, therefore, declared to be illegal and invalid prospectively. The Respondent States are re strained from enforcing the said levy any further but they will not be liable for any refund and the tax already col lected and paid will not be refunded. [683B] In respect of Tamil Nadu, no further realisations will be made in future by the State Government from the petition ers. Regarding past realisations, the application for that part of the direction should be placed before a Division Bench, for disposal upon notice both to the State and the Central Governments. [683F] Calcutta Gas Co. (Proprietory) Ltd. vs The State of West Bengal . and Ors., [1962] Suppl. 3 SCR 1; Nashirwar etc. vs The State of M.P.; , ; SheopatRai & Ors. vs State of U. P., [1972] All. L.J. 1000; Indian Mica & Mican ite Industries Ltd. vs State of Bihar & Ors., [1971] Suppl. SCR 319; Town Municipal Committee, Amraoti vs Ramachandra Vasudeo Chimote & Anr., ; ; P.N. Kaushal etc. vs Union of India; , ; M/s Guruswamy & Co. etc. vs State of Mysore & Ors., ; Coo verjee B. Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer & Ors., [19541 SCR 873; Crowley vs Christensen, [1890] 34 Lawyers ' Edn. 620 and Southern Phar maceuticals & Chemicals Trichur & Ors. vs State of Kerala & Ors. etc. ; , at 537, referred to. 638 Per Oza, J. (Concurring) 13.1 The State Legislature had no authority to levy duty or tax on alcohol which is not for human consumption as that could only be levied by the Centre. [686G] 13.2 A comparison of the language of Entries 84 of List I and 51 of List II clearly demonstrates that the powers of taxation on alcoholic liquors have been based on the way in which they are used. Admittedly, alcoholic liquor is a very wide term and may include variety of types of alcoholic liquors, but our Constitution makers have distributed them into heads, namely, (a) for human consumption, and (b) other than for human consumption. Alcoholic liquors which are for human consumption were put in Entry 51 List II authorising the State Legislature to levy tax on them whereas alcoholic liquors other than for human consumption have been left to the Central Legislature under Entry 84 for levy of duty of excise. This scheme of these two entries in List I and II is clear enough to indicate the line of demarcation for pur poses of taxation of alcoholic liquors. What has been ex cluded in Entry 84 has specifically been put within the authority of the State for purposes of taxation. [685E H] 13.3 From the scheme of entries in the three lists, it is clear that taxing entries have been specifically enacted conferring powers of taxation, whereas other entries pertain to the authority of the Legislature to enact laws for pur poses of regulation. If Entry 8 in List II is compared with Entry 51 it is clear that while Entry 51 authorises the State Legislature to levy tax and duties on alcoholic liq uors failing under this entry, Entry 8 confers authority on the State Legislature to enact laws for regulation. Similar ly are Entries in List I. But since a declaration has been made by the Parliament under Entry 52, List I, declaring the industry based on fermentation and alcohol to be an industry under the Industrial (Development and Regulation) Act, 1951, and placing it directly under the control of the Centre, even in respect of regulation, the authority of the State Legislature in Entry 8, List II could only be subject to the Act or rules made by the Centre. Therefore, in view of clear demarcation of authority under various items in the three Lists, Entry 8 List II could not be invoked to justify the levies which have been imposed by the State in respect of alcoholic liquors which are not meant for human consumption. [686C D, F G] The State, in exercise of powers under Entry 8 of List II and by appropriate law may, however, regulate and that regulation could be to 639 prevent the conversion of alcoholic liquors for industrial use to one for human consumption and for the purpose of regulation, the regulatory fees only could be justified. In fact, the regulation should be the main purpose, the fee or earning out of it has to be incidental. [690H, 691A] 14.1 There is nothing like privilege vested in any one of the functionaries of the State. In the background of this basic feature of our Constitution, the doctrine of privilege is difficult to reconcile with when this privilege of trad ing in commodities injurious to health and dangerous to life is examined especially in the context of Article 21 and Article 47 of our Constitution. [688C D] 14.2 Article 21 castes a duty on the State to protect the life of every citizen except as is provided under the Article. If this duty of the State is compared with the scheme of privilege, it means that the State has a privilege to endanger human life (the life of a citizen). Such a privilege runs contrary to Article 21 [688F] 14.3 Article 47 appears in the Chapter of Directive Principles of State Policy. Inclusion of this Article in this Chapter clearly goes to show that it is the duty of the State to do what has been provided in this Article. It has provided that it is the duty of the State to improve public health and this duty will be discharged by endeavouring to bring about prohibition. It, therefore, sounds contradictory for a State, which is duty bound to protect human life, to claim that it has the privilege of manufacture and sale of alcoholic beverages which are expected to be dangerous to human life and injurious to human health and transferring this privilege of selling this privilege on consideration to earn huge revenue without thinking that this trade in liquor ultimately results in degradation of human life even endan gering human life and is nothing but moving contrary to the duty cast under Articles 21 and 47 and ideal of prohibition enshrined in Article 47. [688H, 689A C] Therefore, in view of Articles 21 and 47, the State cannot claim the privilege of having the right to trade in goods obnoxious and injurious to health. [689D]

The petitioner and his two associates were convicted and sentenced under section 302 read with section 34, I.P.C. On appeal, the High Court maintained the conviction of the petitioner but acquitted his associates giving them the benefit of doubt. The Petitioner applied to this Court for grant of special leave to appeal under article 136 but the same was dismissed. By this petition under article 32 the petitioner sought issuance of a writ of mandamus directing the State to forbear from giving effect to the judgment and sentence passed by the trial court as also the judgment of the High Court as well as the order passed by this Court dismissing the special leave petition on the ground that his conviction was illegal and therefore his detention in jail was in violation of article 21 read with articles 14 and 19. Dismissing the petition, ^ HELD: The propriety of asking for a declaration in these proceedings under article 32 that conviction of the petitioner by the High Court for an offence punishable under section 302 read with section 34 I.P.C. is illegal, particularly when this Court has declined to grant special leave under article 136 cannot be appreciated. Nor can the petitioner be heard to say that his detention in jail amounts to deprivation of the fundamental right to life and liberty without following the procedure established by law in violation of article 21 read with articles 14 and 19. When a special leave petition is assigned to the learned judges sitting in a Bench, they constitute the Supreme Court and there is a finality to their judgment which cannot be upset in these proceedings under article 32. Obviously, the Supreme Court cannot issue a writ, direction or order to itself in respect of any judicial proceedings and the learned judges constituting the Bench are not amenable to the writ jurisdiction of this Court. [470 D F] Shankar Ramchandra Abbyankar vs Krishnaji Dattatreya Bapat, ; , referred to.

% In a batch of Writ Petitions filed in this Court the petitioners challenged the imposition of sales tax and surcharge on bread, rusk and bun under the A.P. Sales Tax Act, 1957 as illegal, contending that bread and biscuits belonged to one homogeneous class but had been treated differently for purposes of taxation under Schedule 1, Item No. 117 and Item No. 129 of the Act, that the purchasers and sellers of bread and biscuits had been differently taxed, and that the multiple point tax violated Article 19(1)(g) of the Constitution. Dismissing the writ petitions, ^ HELD: The economic wisdom of a tax or lack of it are within the exclusive domain of the legislature. The only question for the Court to consider is whether there is rationality in that behalf of the legislature that capacity to pay the tax increased by and large with the increase of receipts. From any point of view, there is rationality in this proposition. It is sound commonsense and is in consonance with social justice. Therefore, the challenge to the imposition, under Article 14 as well as Article 19(1)(g) of the Constitution is not sustainable. [9D F] State of Andhra Pradesh & Anr. vs Nalla Raja Reddy & Ors. ; ; New Menek Chowk Spinning and Weaving Mills Co. 8 Ltd. and Ors. vs Municipal Corporation of the City of Ahmedabad and others. ; , ; Annapurna Biscuit (Mfg.) Co. and Another vs The State of U.P. and Another, [1975] 35 S.T.C 127 and Hoechst Pharmaceuticals Ltd. and Another Etc. vs State of Bihar and others, , referred to.

A decree dated September 2, 1938, in a suit for partition of joint Hindu family property awarded a house to the share of one J and his four minor sons. J failed to execute the decree. On November 23, 1949, an application was made by the appellants, the four sons of J, for execution of the decree stating that three of them had been minors till then and one of them was still a minor and so no question of limitation arose. The respondent objected that the application was barred under section 7 of the Indian Limitation Act. The appellants contended that section 7 did not apply to a partition decree and that section 7 was no bar as j could not have given a valid discharge of the liability under the decree in view of the provisions of 0. 32 of the Code of Civil Procedure. Held, that the application for execution was barred by limitation. J, the managing member of the family could have given a discharge of the liability under the partition decree by accepting possession on behalf of his minor sons without their consent and so time ran against them under section 7 from the date of the decree. Order 32, rr. 6 and 7 were no bar to j giving a discharge of the liability under the decree as it was neither a case of receipt of any money or movable property nor was there any question of entering into an agreement or compromise on behalf of the minors. Ganesha Row vs Tuljaram Row (1913) L.R. 40 1.A. 132, Parmeshwari Singh vs Ranjit Singh, A.I.R. 1939 Pat. 33 and Letchmatsa Chetty vs Subbiah Chotty, Mad. 920, referred to. 876

Appeal No. 90 of 1956. Appeal by special leave from the judgment and decree dated August 5, 1953, of the Bombay High Court in Appeal from the Appellate Decree No. 915 of 1951. M. section K. Sastri, for the appellant. A. G. Ratnaparkhi, for respondent No. 1. 1961. April 12. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is against the judgment and decree of the High Court of Bombay, dismissing the suit of the plaintiff appellant. The plaintiff sued for a declaration that the property in suit which is situate at Mouje Digvale, a village held by khots in the district of Ratnagiri, was owned by him, was under his management and that the defendants had no right or interest therein. He claimed title to the property on the basis of the sale of occupancy rights under the sale deed executed in his favour by Sitabai on February 10, 1945. Sitabai was the widow of Vishram Anna Shirsat, who succeeded Ram Raghu Shirsat, the occupancy tenant of the land in suit. Ram Raghu Shirsat sold the occupancy rights in the land in suit to Laxman Chandba Raut by a deed dated March 8, 1892. By a compromise in a civil suit between the heirs of Laxman Chandba Raut and Tanu Daulat Gavade Sakaram, the heir of Laxman Raut got 3/5ths share and Tanu Daulat got 2/5ths share in these occupancy rights. Dattatraya Bhikaji Khot Kulkarni, a paternal uncle of respondent No. 1, purchased. the shares of these persons by 907 the sale deeds dated December 14,1903, and February 13, 1904. On Kulkarni 's death, respondent No. 1 became the owner of the property. Respondents nos. 2 to 4 are the tenants of respondent No. 1. The land in suit is khoti land as defined in el. (10) of section 3 of the Khoti Settlement Act, 1880 (Bom. Act 1 of 1880), hereinafter called the Act. It is not disputed that Ram Raghu Shirsat was the occupancy tenant of the land in suit and that he could not transfer his tenancy right without the consent of the khot, which, according to cl. (2) of section 3, includes a mortgagee lawfully in possession of khotki and all co sharers in a khotki. It is also admitted that the transferors of the afore mentioned sale deeds of 1892 in favour of the predecesror in interest of respondent No. 1, or of the sale deed of 1945 in favour of the appellant, did not obtain the consent of the khot before executing the deed of transfer. The plaintiff alleged that the sale deed in favour of respondent No. 1 was void and that therefore he had title to the suit land on the basis of the sale deed in his favour. Respondent No. 1 contended that Ram Raghu Shirsat lost his rights in the property in suit after he had executed the sale deed on March 8, 1892, and that, therefore the plaintiff obtained no title on the basis of the sale deed in his favour. The trial Court held the sale deed of 1892 to be good sale deed and binding on the plaintiff and dismissed the suit. On appeal, the Assistant Judge reversed the decree and decreed the suit holding that a transfer of the occupancy rights in the suit lands by Ram Raghu Sirsat in favour of Laxman Raut was void and that the plaintiff obtained good title under the sale deed in his favour in view of the amendment of section 9 of the Act by section 31 of the Bombay Tenancy Act, 1939 (Act XXIX of 1939), by which no consent of the khot was ,necessary for executing the sale deed in 1945. Respondent No. 1 preferred a second appeal to the High Court which set aside the decree of the Assistant Judge and restoring the decree of the trial Court, dismissed the suit. It held that the sale deed in favour 908 of the plaintiff too would be hit by the provisions of s.9 of the Act. It further held that the provisions of s.9 indicate that there was no absolute prohibition against a transfer of the occupancy right. A transfer by an occupancy tenant without the consent of the khot cannot be held to be void for all purposes and it would be invalid only in so far as it would be contrary to the right of the khot and not otherwise. It therefore held the transfer in favour of the respondent No. 1 's predecessor in interest in 1892 not to be void. It is the correctness of this order that is challenged in this appeal. This appeal has no force. Section 31 of the Bombay Tenancy Act, 1939, made amendments to section 9 of ado. the Act and the section after amendment reads: "The rights of khots and privileged occupants shall be heritable and transferable". 'Privileged occupant ' included a permanent tenant under cl. (5) of section 3 of the Act. The Bombay Tenancy Act received assent of the Governor of Bombay on April 2, 1940, but it came into force in April 1946 when the Government issued the necessary notification in exercise of the powers conferred under subs. (3) of section 1 of that Act. It is clear therefore that section 9, as it stood on February 10, 1945, when Sitabai executed the sale deed in favour of the appellant, made the rights of permanent tenants nontransferable without the consent of the khot, and that therefore the sale in favour of the appellant was as much hit adversely by the provisions of section 9 of the Act as the sale of the land in suit in favour of the predecessor in interest of respondent No. 1. It is therefore not necessary to determine the question whether the sale was absolutely void or voidable as held by the Court below, as neither of the two sales has been challenged by the khot whose consent for the transfer was necessary. The plaintiff has no title whether a transfer by a permanent tenant without the consent of the khot be void or voidable. If such a transfer is void, the sale in favour of the appellant did not convey any title to him. If such a sale was merely voidable at the instance of the khot, the first sale in favour of the 909 respondent No. 1 's predecessor in interest was not avoided by the khot, and therefore validly conveyed title to him. Consequently no title passed to the plaintiff under the sale deed in his favour as his transferor had no title. In either case the plaintiff fails to prove his title to the land in suit. The dismissal of his suit is therefore correct. We accordingly dismiss this appeal with costs. Appeal dismissed.

The land in suit was Khoti land land section 9 of the Khoti Settlement Act, 1880, prior to its amendment prohibited the. transfer of the occupancy right without the consent of the Khot. Section 31 of the Bombay Tenancy Act, 1939, which came into force from April 1946, amended section 9 of the Khoti Settlement Act by which no consent of the Khot was necessary for transferring the occupancy rights in the land. In 1892, R sold his occupancy right without the consent of tile Khot to L, the predecessor in interest of respondent No. 1. In 1945, R 's successor again sold the same occupancy right to the appellant also without the consent of the Khot. The appellant 's case was that the sale deed in 1892 in favour of the predecessor in interest of respondent No. 1 was void as the transfer of the occupancy right was made without consent of the Khot; whereas respondent No. 1 contended that R by the sale deed in 1892 had already lost his right to the property in suit and therefore R 's successors had no title to pass in 1945 in favour of the appellant. Held, that the occupancy right in a Khoti land could not be transferred without consent of the Khot prior to April 1946, when the Bombay Tenancy Act, 1939, came into force 114 906 Held, further, that in the present case as both the sales of 1892 and 1945 were without the consent of the Khot, it was not necessary to determine whether such a transfer was void or voidable, If void, the plaintiff had no title. If voidable, the first sale in 1892, validly conveyed title to respondent No 1 's predecessor in interest, and consequently no title passed to the plaintiff under the sale deed in 1945, as the transferor had no title.

On October 10, 1953, the respondents filed suits under section 232 read with section 20 of the U. P. Zamindari Abolition, and Land Reforms Act, 1950 against the appellant before the Sub Divisional Officer. Before the coming into operation of the Abolition Act the appellant (Amba Prasad) was Zamindar of the disputed land. The names of the respondents were recorded in column 23 (miscellaneous) in the Khasra for the year 1356 Fasli as persons in possession of the disputed land. The respondents claimed adhivasi rights under section 20 of the Abolition Act because they were recorded as occupants of the fields in dispute in the Khasra for 1356 Fasli. The common case of the respondents was: (i) that they were in possession of the suit land (ii) that they were dispossessed after June 30, 1948 by the appellant, (iii) that as they were recorded occupants in 1356F they were not required to prove actual possession. The case of the appellant was that the entry was fraudulently made after July 1, 1949. These suits were dismissed by the Sub Divisional officer. On appeal, the Additional Commissioner held that the respondents had acquired the adhivasi fights. Against this order Amba Prasad (the appellant) appealed to the Board of Revenue. The Board of Revenue dismissed the appeals. The appellant then filed appeals in this Court. Held:(i) Under section 20 of the Abolition Act (U. P. Zamindari Abolition and Land Reforms Act) a person continues as an adhivasi after July 1, 1952. provided he is in possession or was evicted after June 30, 1948. If he was evicted after June 30, 1948 he is entitled to regain possession in spite of any order or decree to the contrary. (ii)The words "recorded as occupants" in section 20 of the Abo lition Act mean persons recorded as occupants in the Khasra or Khatauni for 1356 Fasli (1 7 48 to 30 6 49). Such persons do not include an intermediary. The word "occupant" must mean a person holding the land in possession or actual enjoyment. Mediate possession (except where he immediate possessor holds on behalf of the mediate possessor) is of no consequence. (iii)The appellant was not entitled to raise the plea of the correctness of the entry in Khasra because the entry was not corrected before the date of vesting (1 7 52) as required by Explanation (ii) to section 20 of the Abolition Act. (iv)The title to possession as adhiwasi depends on the entries in the Khasra or Khatauni for the year 1356 Fasli. Section 20 of the Abolition Act does not require the proof of actual possession. Therefore, section 20 eliminates inquiries into disputed possession by accepting the record in the Khasra or Khatauni of 1356F. or its correction before July 1, 1952. 801 The Upper Ganges Sugar Mills Ltd. vs Khalil ul Rehman, ; , referred to. Lala Nanak Chand vs Board of Revenue, U. P., 1955 A.L.J. 408, Ram Dular Singh vs Babu Sukh Ram, , Bhal Singh vs Bhop and Anr., and Sugriva vs Mukhi etc., , approved.

One Lala Gurdin, who had acquired extensive landed property in Kanpur died on December 10, 1861 leaving behind his widow Smt. Amrit Kuer and three daughters: Smt. Hazarao Kuer from his predeceased wife, and Smt. Mewa Kuer and Smt. Prago Kuer from Smt. Amrit Kuer. After the death of Gurdin his entire estate came into the hands of his widow Smt. Amrit Kuer and after her death on August 1,1880, the three daughters of Lala Gurdin succeeded to the estate left by Smt. Amrit Kuer, as limited owners. They divided the property amongst themselves, each coming into possession of one third share. When Smt. Prago Kuer died on July 8, 1907 the estate remained with the two surviving daughters. When Smt. Hazaro Kuer died on January 24, 1914 the estate remained in possession of Smt. Mewa Kuer, the last surviving daughter. She also died on June 14,1923. During their life time the three daughters had been making various alienations of the property that fell to their exclusive share. Amongst a number of alienations in favour of different persons at different times, three sale deeds dated July 27,1901; July 17, 1914 and October 19,1915 are the subject matter of the appeals and the property covered by the 1901 and 1914 sale deeds are in possession of the appellants trust while the properties covered by the 1915 sale deeds are in the possession of Defendants 4 & 5 of Suit No. 25 of 1935. The 1914 and 1915 sale deeds were jointly executed by Smt. Mewa Kuer and her son Ram Dayal. After the death of Smt. Mewa Kuer in 1923, her surviving reversioners sought to challenge the various alienations made by the limited owners, some by Smt. Amrit Kuer and the others made by the daughters of Lala Gurdin by way of two Suits Nos. 25 of 1935 filed by the two sons of Smt. Hazaro Kuer and Suit No. 34 of 1935 filed by Madho Dayal son of Ram Dayal, on the 719 allegations (i) that there was no legal or pressing necessity for the transfers; (ii) that transfer by one of the daughters without the consent of the remaining daughters was void ab initio and no title passed on to the transferees; and (iii) transferees from the limited owners themselves had no valid title and so they could not pass a better title to others and thus those transfers were also bad. The suits were contested by the transferees in possession seeking protection of section 43 of the Transfer of Property Act on the equitable principle feeding the Grant by estoppel in as much as even if there was any defect in the of title Mewa Kuer, the same has ceased when her two other sisters died and she become the sale Survivor. The Additional Civil Judge found that, while sale deeds of 1914 and 1915 were for legal necessity as they had been executed by Smt. Mewa Kuer when her two sisters had died, the sale deed dated 27th July, 1901 was also for legal necessity but as it was executed without the consent of the other two daughters it was invalid and not binding on the plaintiffs respondent. Consequently the Trial Court dismissed Suit No. 25 of 1935 in respect of the sale deeds of 1914 and 1915, and partly decreed the suit pertaining to 1901 sale deed in view of the provisions of section 51 of the Transfer of Property Act in as much as these defendants appellants had made valuable constructions as bona fide purchasers and they were entitled to the market value of the constructions. Suit No 34 of 1935 was also partly decreed and partly dismissed. In the appeals filed by the present respondents plaintiffs and after perusing the cross objections filed by the present defendants appellants, the High Court reversed the finding of the trial court with regard to sale deeds of 1914 and 1915 held that they were not for legal and pressing need; and while confirming the finding of the trial court with regard to sale deeds dated July 27, 1901 further held that the present plaintiffs respondents should be given an opportunity to make an election under section 51 of the Transfer of Property Act, as to whether they would like to pay the compensation for the superstructures standing on the land in question or to sell their share in the land. Consequently, the High Court allowed the appeals of the plaintiffs respondents in part and remanded the case to the trial court to afford an opportunity to the plaintiff to make election under section 51 of the Transfer of Property Act. It was further held that the sale deeds of 1914 and 1915 being not for legal necessity the subsequent transfers made by the transferees of Mewa Kuer were bad. Hence the appeals by certificate. Allowing the appeals in part, the Court ^ HELD 1.1 If a Hindu dies leaving behind two widows they succeed as joint tenants with a right of survivorship. They are entitled to obtain partition of the separate portions of property so that each may enjoy her equal share of the income accruing therefrom. Each can deal as she pleases with her own life interest but she cannot alienate any part of the corpus of estate by gift or will so as to prejudice the right of survivorship or a future reversioner. If they act together they can burden the reversion with any debts owing to legal necessity but one of them acting without the authority of the other cannot prejudice the 720 right of servivorship by alienating any part of the estate. [728 G H] 1.2 The mere fact of partition between the two while it gives each a right to fruits of separate estate assigned to her, it does not imply a right to prejudice the claim of the survivor to enjoy full fruits of the property during her life time. What is applicable to co widows is equally applicable to the case of daughters. No distinction can be made on that account. [726 C D, 729 A B] Gauri Nath Kakaji vs Mt. Gaya Kuer, followed. Appalasuri vs Kannamma, approved. 2.1 The transfer made by one daughter without the consent of the other is only voidable at the instance of the other co limited owners or at the instance of the reversioners. [729 D E] 2.2 Here, the alienations made by the daughters separately to different persons was never challenged by the other daughters. Even the reversioners did not challenge those alienations during the life time of their mothers and they sought to challenge the alienations long after the death of the last limited owner Smt. Mewa Kuer in 1923 and therefore, even if the partition between the daughters had no effect on the reversion it can safely be presumed that the transfer made by one of the daughters of the property exclusively in her possession had the consent of the other. Further in any case Smt. Mewa Kuer after the death of her two sisters came into exclusive possession of the entire estate left by Smt. Amrit Kuer, widow of Lala Gurdin. Therefore, the transferees would be entitled to the protection of section 43 of the Transfer of Property Act which substantially amounts to satisfying the equitable principle of 'feeding the grant by estoppel '. [729 B C, D E] 2.3 In view of the fact that the trust has made valuable constructions involving a cost of 5 to 6 lakh rupees of the college building, the principal 's quarters, teacher 's quarters, hostel, library, dispensary etc. it will be inequitable in the circumstances of the case to ask the appellants to pay the present market value of the land. The acceptance of the amount by the plaintiffs respondents as determined by the trial court will itself amount to making a choice within the meaning of section 51 of the Transfer of Property Act. From the materials on record and the attending circumstances it is clear that the reversioners were neither in a position to pay for the improvements nor inclined to do so and this is why they accepted the amount determined by the trial court. Therefore, the High Court was not justified in remanding the case to the trial court to afford another opportunity to the plaintiffs to make a fresh choice. [930 B D] 3. What quantum of evidence will satisfy a particular court to come to a conclusion is entirely in the discretion of the Court, and therefore, the finding of the High Court with the regard to the two sale deeds of 1914 and 1915 cannot be interfered with. [930 E F] 721

In a suit for partition of bakash land a preliminary decree was passed. The defendants appellants, claiming to be in actual possession of the bakasht land, filed a petition contending that the consequence of section 6. of the Bihar Land Reforms Act, 1950 (which came into force in the meanwhile) was to put an end to the proprietor 's possession of the bakasht land by causing them to vest in the State and simultaneously creating a tenancy in favour of the person in khas possession thereof, and therefore, no final decree could be passed. The trial court accepted the contention and dismissed the plaintiff 's application for passing final decree. In appeal, the High Court set aside the order. In appeal to this Court, HELD : Even if the appellants were in actual khas possession within the meaning of section 2(k) of the Act, it must be held that the plaintiff respondent, who was a co sharer, was in constructive possession through the appellants, as, under the law, possession of one co sharer is possession of all co shares. The appellants did not claim to be trespassers on the property neither did they claim any title to the lands adversely to the respondent. The deeming provision of section 6 must, therefore, enure for the benefit of all, who in the eye of land) would be regarded as in actual possession. Therefore, the respondent had not lost his share in the bakasht lands and had a right to his share in them, though not as tenure holder or proprietor, but as a raiyat under the provisions of the Act. [645 E G] P. L. Reddy vs L. L. Reddy, ; , 202, followed. Surajnath Ahir vs Prithitnath Singh, , Ram Ran Baijal Singh vs Behari Singh alias Bagandha Singh, , section P. Shah vs, B. N. Singh; , and Mahant Sukhdeo Das vs Kashi Prasad, Tewari referred to.

One Natu, m his suit filed in 1940 against his nephew Laxman for partition of the joint family property and for separate possession of his half share obtained a decree in his favour. The total area of the lands to be divided is 108 acres. Natu and his four sons assigned on August 22, 1945, 318th share in decree obtained by them in favour of Prem Chand Patil. Prem Chand filed a Special Civil Suit No 67 of 1950, for partition of his assigned share in the decree. In that suit, a compromise decree was passed providing that if the sons of Natu paid Rs. 30,000 on or before March 1, 1958, then the decree holder would not been titled to claim any partition and in default he should get possession of the share claimed by him. The sons of Natu committed default and Prem Chand Patil became entitled to partition of 318th share of 108 acres of land. Prem Chand Patil, however assigned his decree in favour of Vishnu Hari Patil, respondent No. 1, who started the execution proceedings, under section 54 of the Code of Civil Procedure under which the lands in respect of which assessment was payable to the Government had to be divided by the Collector and the parties had to be put in possession of their respective shares. During the pendency of these proceedings, the appellants purchased from the sons of Natu who were parties to the suit five fields out of these 108 acres four through private sales and one by court auction and were in possession of the said fields, having acquired title thereto. These fields were allotted by the Collector in favour of Respondent No. 1 as part of his 3/8th share without giving any consideration to the claims of the appellants for equitable partition. The appellants challenged the validity of the partition proceedings before the Commissioner, Bombay Division. The appeal was dismissed on the ground that the appellants had no locus standi to ask for an equitable allotment under section 54 Code of Civil Procedure, as their names did not figure in the decree even though the sates in their favour were not in dispute. The further appeals before the State Government as well as the Writ Petitions filed before the Bombay Hit h Court also failed. Hence the appeals by special leave. 899 Allowing the appeals, tho Court. ^ HELD : 1.1. Section 52 of the Transfer of Property Act, no doubt, lays down that a transferee, pendente lite of an interest in an immovable properly which is the subject matter of a suit from any of the parties to the suit will ba bound in so far as that interest is concerned by the proceedings in the suit. Such a transferee is a representative in interest of the party from whom he has acquired that interest. [902 E F] 1:2. A transferee from party of a property which is the subject matter of partition can exercise all the rights of a transferor. When a party can ask for an equitable partition, a transferee from him, therefore, can also do so. [903 D E] 2:1. Rule 10 of order XXII of the Code of Civil Procedure clearly recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be That if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. But if he applies to be impleaded and heard he can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court, where he is not already brought on record. [902 FG ] 2:2. The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or proceeding is some what similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. An heir or a legatee or an official receiver or a transferee can participate in the execution proceedings even though their names may not have been shown in the decree, preliminary, or final. If they apply to the court to be impleaded as parties, they cannot be turned out. [902 G H; 903 A B] 3. The Collector, who has to effect partition of an estate under section 54 of the Code of Civil Procedure has, no doubt, to divide it, in accordance with the decree sent to him. But if a party to such a decree dies leaving some heirs about whose interest there is no dispute, he need not fold up his hands and return the papers to a civil court. He may proceed to allot the share of tho deceased party to his heirs. Similarly, he may, when there is no dispute, allot the share of a deceased party in favour of his legatees. In the case of insolvency of a party, the official Receiver may be allotted the share of the insolvent. In the case of transferees, pendente lite also, if there is no dispute, the Collector may proceed to make allotment of properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. Such a construction of section 54 of the Code of Civil Procedure advances the cause of justice. Otherwise, in every case where a party dies or where he transfers some interest in the suit property pendente lite the matter has got to be referred back to the Civil Court, even though there may be no dispute about the succession, devolution or transfer of interest. In any such case, where there is no dispute if the Collector makes an equitable partition taking into consideration the interests of all concerned including those on whom any interest in the subject matter has devolved, he would 900 neither be violating the decree nor transgressing any law. His action would not be ultra vires. On the other hand, it would be in conformity with the intention of the Legislature which has placed the work of partition of lands subject to payment of assessment to the Government in his hands to be carried out "in accordance with the law (if any) for the time being in force relating to the partition or the separate possession of shares". [903 B C; F G]

Ram Charan obtained a money decree against the Union of India. An appeal was filed against that decree in the High Court. Ram Charan respondent died on july 21, 1957. On March 18, 1958, an application was filed in the High Court under 0.22, R .4 read with section 151 of the Code by Civil Procedure stating that the respondent had died on July 21, 1957 and the Divisional Engineer, Telegraphs, learnt of his death on February 3, 1958 and the deceased had left his widow and an adopted son as his legal representatives. A prayer was made to bring the legal respresentatives of the deceased on record. The High Court dismissed the application on the ground that the appellant had failed to show sufficient cause for not bringing the legal representatives of the deceased on record within time. The appeal was also dismissed. In the appeal before this Court, it was contended on behalf of the appellant that the mere ignorance of death of the respondent was sufficient cause for the appellant 's inability to apply for the impleading of legal representatives within time unless the appellant was guilty of some negligence or some act or omission which led to delay in his making the application, that once the respondent was served no duty was cast on the appellant to make further enquiries about the state of health of the respondent, that expresssion sufficient cause ' should be liberally construed in order to advance the cause of justice, that the Court itself had inherent power to add legal representatives to do justice to the party and that the High Court misapplied the decision of the Full Bench 468 in Firm Dittu Ram Eyedan vs Om Press Co. Ltd. to the facts of the present case. Held that limitation for an application to set aside the abatement of an appeal starts on the death of the respondent and not from the date of the appellant 's knowledge thereof. Held also that the Court is not to invoke its inherent powers under section 151 C.P.C. for the purpose of impleading legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring legal representatives of the deceased on the record and when its application for setting aside abatement was not allowed on account of its failure to satisfy the court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for setting aside of the abatement within time. Held also that the expression sufficient cause ' is not to be liberally construed either because the party in default was the Government or because the question arose in connection with the impleading of the legal representatives of the deceased respondent. The Court should not readily accept whatever is alleged to explain away the default. The delay in making the application should not be for reasons which indicate the negligence of the party making the application in not taking certain steps which he could have and should have taken The court has to be satisfied that there were certain valid reasons for the applicant not knowing the death within a reasonable time. The bare statement of the applicant is not enough. Firm Dittu Ram Eyedan vs Om Press Co. Ltd. (1960) 1 I.L.R Punjab. 935 (F.B.), State of Punjab vs Nathu Ram ; and Jhanda Singh vs Gurmukh Singh C. A. No. 344 of 1936 dated 10.4.62, referred to.

The respondent by virtue of the sanad granted to his ancestors by the British Government, claimed, in respect of certain lands situated in village Shiramba Taluka Koregaon, District North Satara, compensation under section 6(2) of the Bombay Paragana and Kulkarni Watans (Abolition) Act. 1950, for the resumption of the lands by the appellant. The suit claim of Rs. 15,074 4 0 being "a sum equal to ten times the amount of such land revenue" was decreed by the trial court. On appeal by the State, the High Court affirmed the same. after construing the sanad granted by the British Government in favour of the respondents ' ancestors and other relevant records, as it was a watan of land revenue and not in respect of the soil. Dismissing the State 's appeal by special leave to this Court, ^ HELD: (1) The High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the watan held by the respondent at the date of the coming into force of the Act was a watan of land revenue the respondent was entitled to compensation in the sum of Rs. 15,074 4 0 under section 6(2) of the Bombay Paragana and Kulkarni Watan (Abolition) Act, 1950. [982B C] (2) The sanad undoubtedly used the words "lands" to describe the subject matter of the grant, but the word "land" is defined in Bombay Act II of 1863 [The Exemption From Land Revenue (No. 1 ) Act 1863], to include share of land revenue and this meaning would apply in the construction of the word "land" in the sanad since the sanad was apparently granted pursuant to the enquiry made under Bombay Act II of 1863. The description of the subject matter would not, therefore, necessarily indicate that it was a grant of the soil. In fact, this description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accompanied by words such as 'Darobast ' or 'Jal ', 'Taru ', 'Truna ', 'Kastha ' and 'Pashan '. [981F H] [Their lordships deprecated the litigious approach adopted by the State Government and observed "State Governments which have public accountability in respect of their actions should not lightly rush to this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense.]

These two appeals Civil Appeal No. 3446 of 1987 and Civil Appeal No. 3447 of 1987 were filed in this Court against the judgment of the High Court in the Writ Petition No. 6789 of 1982. Ratan Prakash Mangal and Kuldip Singh, respondents Nos. 1 and 2 in the Civil Appeal No. 3446 of 1987 and the appellants in Civil Appeal No. 3447 of 1987, had filed the said writ petition challenging a notification dated 20th May, 1982, issued under section 4(1) read with section 17(4) of the Land Acquisition Act, 1894 (the Act) and also the consequential notification dated 21st May, 1982, issued under section 6 of the Act with regard to a plot No. 289. The notification under section 4(1) of the Act was quashed in part in so far as it invoked Section 17(4) of the Act, and the notification under section 6 was quashed as a whole with regard to the said plotNo. The Civil Appeal No. 3446 of 1987 was preferred by Krishi Utpadan Mandi Samiti, Muzaffar Nagar for which the said plot had been acquired, for setting aside the judgment of the High Court. Civil Appeal No. 3447 of 1987 was preferred by Ratan Prakash Mangal and Kuldip Singh afore mentioned hereinafter referred to as respondents Nos. 1 & 2 asserting that the notification under section 4(1) should have been quashed by the High Court in its entirety and not only in so far it invoked section 17(4) of the Act. Initially, a Notification dated 20th March, 1975 was issued under section 4(1) of the Act for acquiring land, including the plot No. 289, for construction of a market yard for the appellant Krishi Utpadan Mandi Samiti. Later, this Notification was superseded by another Notification dated 30th August, 1975 issued under section 4(1) with regard to land which did not include the said plot. Subsequently, another Notification dated 26th October, 1978, was issued under section 4(1) read with Section 17(4) of the Act with regard to land, including the plot abovementioned. The Notification dated 26th October, 1978 was followed by 183 a Notification dated 27th October, under section 6. Prior to the issue of these Notifications, respondents Nos. 1 and 2 had purchased the said plot No. 289. The said respondents Nos. 1 and 2 had challenged the Notifications dated 26th October, 1978 and 27th October, 1978 by a writ petition in the High Court. The High Court had quashed the two Notifications in so far as Plot No. 289 was concerned. This Judgment of the High Court had been challenged by Krishi Utpadan Mandi Samiti before this Court in Civil Appeal No. 2970 of 1979. This Court had held that even though the quashing of the Notification under Section 6 had been justified, the High Court had not been right in quashing the Notification under section 4(1) in its entirety, and had set aside the Judgment of the High Court in so far as it had quashed the Notification under section 4(1) in its entirety, while maintaining the rest of the Judgment with a direction regarding inquiry under Section 5A into the objections of the respondents Nos. 1 and 2 to the proposed acquisition etc. In pursuance of the said direction, inquiry under section 5A had been made and the Land Acquisition Officer had submitted a report on 20th January, 1981, after about 15 months of the direction above said of this Court, to the effect that the Plot No. 289 might be exempted from acquisition. The Government did not agree with the said report and issued the Notifications impugned in present appeals. Allowing Civil Appeal No. 3446 of 1987, and dismissing Civil Appeal No. 3447 of 1987, the Court, ^ HELD: There was no doubt with regard to the legal position that the Report dated 20th January, 1981 of the Land Acquisition Officer was not binding on the State Government and it was still open to it to continue the proceedings for the acquisition of the Plot No. 289 notwithstanding the said report. The Government had its reason why in place of issuing a Notification under section 6(1) of the Act in continuation of the Notification dated 26th October, 1978 under section 4(1), fresh notifications under section 4 and 6 had to be issued as also the reason for the delay in issuing the fresh Notifications, as was apparent from the record. As regards the submission that section 17(4) of the Act had been erroneously invoked in fresh Notification under section 4(1) dated 20th May, 1982 also and that inquiry under Section 5A had again to be made before issuing this Notification, it was enough to point out that once an inquiry under the said section had already been made and the parties had been given full opportunity to substantiate their case in the enquiry and the State Government had not been inclined to agree with the 184 report of the Land Acquisition Officer submitted in pursuance of that inquiry, it would have been a futile exercise to repeat the whole performance again. After the issue of the earlier Notification dated 26th October, 1978, a period of nearly 3 1/2 years had expired when the fresh Notification dated 20th May, 1982 above said was issued and apparently the necessity to acquire the plot No. 289 during this period became more acute due to this delay. Further, as stated in the said Notification itself, the urgency had become more imminent on account of the direction issued by this Court on 2nd March, 1982 in Writ Petition No. 1318 of 1982 filed by the traders in gur, khandseri and foodgrains, Muzaffar Nagar, challenging the Notification under Section 7(2)(b) of the U.P. Act No. 25 of 1964. Consequently, it was diffcult to hold that the opinion of the State Government that it was a fit case to invoke section 17(4) of the Act was invalid on the ground that there was no basis or material in support of the opinion. On the facts of the case, it was not possible to hold that the Notification dated 20th May, 1982 had been issued by the State Government in colourable exercise of its power. [194A F] The Notification dated 20th May, 1982 and 21st May, 1982 had not been challenged by respondents Nos. 1 and 2 on the basis of mala fides of any particular officer of the State Government. What was urged was that it was a case of legal mala fides inasmuch as in issuing the said fresh Notification dated 20th May, 1982, an attempt had been made by the State Government to circumvent the direction of this Court issued in the Civil Appeal No. 2970 of 1979 to make inquiry under Section 5A of the Act and to proceed thereafter in accordance with law, the State Government did make an inquiry under Section 5A of the Act in pursuance of the direction of this Court after giving full opportunity to the concerned parties to substantiate their case. It was difficult to agree with the submission of respondents 1 and 2 that the government attempted to circumvent the direction of this Court. A case of legal mala fide was not made out. [194G H; 195B] The Government all through was of the opinion that Plot No. 289 did not deserve to be released from acquisition. Also, this plea lost significance and became almost of academic value inasmuch as the State Government had not issued a notification under section 6(1) of the Act in continuation of the Notification dated 26th October, 1978 under Section 4(1). After the issue of the fresh Notification what was really to be seen was whether there was justification for invoking section 17(4) of Act or not. There was such a justification. There had been a material change in the circumstances after the report of the Land Acquisition 185 Officer dated 20th January, 1981, to justify Section 17(4) of the Act being invoked and to dispense with a further inquiry under section 5A of the Act. [196D E; 198C] The submission of the respondents 1 and 2 about the lack of application of mind before issuing the Notification dated 20th May, 1982 with regard to plot No. 289 had no substance, as indicated by the original record produced by counsel for the State Government. The effect of issuing a fresh Notification under Section 4(1) and the delay in issuing it had benefited the respondents 1 and 2 inasmuch as now they would be entitled to compensation not on the basis of market value of plot No. 289 as on 26.10.78 when the earlier Notification under Section 4(1) was issued but as on 20th May, 1982 when the fresh Notification under the said section was issued. [200G H; 201A] Civil Appeal No. 3446 of 1987 was allowed and the judgment of the High Court in the Writ Petition No. 6789 of 1982 was set aside, and as a consequence, Civil Appeal No. 3447 of 1987 was dismissed. [201B] State of Punjab vs Gurdial Singh & Ors., ; ; The Collector (District Magistrate) Allahabad and Anr. vs Raja Ram Jaiswal, etc. ; , ; P.L. Lakhanpal vs Union of India & Ors., ; Siemens Engineering & Manufacturing Co. of India Limited vs Union of India & Anr., ; Narayan Govind Gavate vs State of Maharashtra, ; and State of U.P. vs Pista Devi, ; , referred to.

Civil Appeal No. 282 of 1955. Appeal by special leave from the judgment and order dated March 20, 1953, of the Bombay High Court in Income tax Reference No. 31 of 1951. A. V. Viswanatha Sastri and I. N. Shroff, for the appellants. K. N. Rajagopal Sastri and D. Gupta, for the respondent. April 12. The Judgment of the Court was delivered by KAPUR, J. This is an appeal against the judgment and order of the High Court of Bombay in a reference under section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947 (Act XXX of 1947), hereinafter termed the 'Act '. The assessee company was the applicant before the High Court and is the appellant 919 before us and the Commissioner of Income tax, Bombay City, was the respondent in the High Court and is the respondent here also. Being a reference under section 8(5) of the Act, it was heard and decided by three judges of the High Court. The assessee company is a private limited company which was incorporated on May 6, 1943, with a paid up capital of Rs. 20 lacs. It was promoted by two groups of persons who for the sake of convenience may be called the 'Morarka Group ' and the 'Bubna Group '. The Apollo Mills Co., Ltd. of Bombay with a capital of Rs. 50 lacs divided into 25 lacs shares of Rs. 2 each, had as its Managing Agents M/s. E. D. Sassoon & Co. Ltd., who for the sake of brevity, will be referred to in this judgment as the Sassoons '. They held 19,76,000 shares out of the 25 lacs. The promoters of the assessee company entered into an agreement with the Sassoons on April 27, 1943, by which the Sassoons agreed to transfer their Managing Agency in the Mill Co. for Rs. 12 1/2 lacs to the promoters of the assessee company and the whole of their holding of 19,76,000 shares at Rs. 4 4 0 per share, i.e., for Rs. 83,98,000. These shares were to be transferred to the promoters or to the company which they were proposing to float. By clause (3) of this agreement the sale of the Managing Agency and the transfer of the shares was to be simultaneously completed and neither party could require the completion of the one without the other. On November 1, 1943, a tripartite agreement was entered into between the Sassoons as Assignors, the promoters of the company as Confirming Parties and the assessee company as Assignees. By that agreement the Managing Agency rights were for .ally transferred to the assessee company so also the Share Certificates for the whole of holding of the Sassoons in the Mill Co. and the necessary blank transfer deeds went) Before the agreement of April 27, 1943, and during the course of negotiations with the Sassoons the promoters of the assessee company entered into an arrangement with some share brokers for the sale of a large portion of the total holding of 19,76,000 shares 920 of the Mill Co. The price of these shares varied from Rs. 5 8 0 to Rs. 5 13 0. In all 10,00,000 shares out of the total holding of the Mill Co. were sold to these brokers and: they in turn sold these block of shares in smaller lots to a number of purchasers. Some shares were sold later; 1,20,000 shares were transferred to 13 nominees of the Morarka Group at cost price. As a result of sale of all these 13,74,000 shares the assessee company received a sum of Rs. 16,52,600 as excess over the purchase price. The remaining shares the assessee company retained. The assessee company submitted that the profits of the entire holding of the shares had not been worked out and had therefore not been transferred to the profit and loss account. The assessee company was taxed by the Income tax Officer but the sum of Rs. 16,52,600 which was the excess of the sale price over the purchase price of 13,74,000 shares was held not to be profit and therefore not taxable. When the Act came into force the case of the assessee company was referred to the Investigation Commission by the Central Government and the Investigation Commission made its report on November 9, 1949, in Case No. 406A. By this report the Commission directed that appropriate assessment be made under the Indian Income tax Act for the assessment year 1945 46 and the Excess Profits Tax Act for the corresponding chargeable accounting period. At the instance of the assessee company the Commissioner of Income tax, Bombay City, by his order dated May 1, 1951, referred the following question to the High Court: "Whether on the facts found by the Commission the sum of Rs. 16,52,600 being the excess price realised by the sale of 13,74,000 shares of the Mill Company, was 'profit ' and as such taxable or whether it was either of the nature of a capital appreciation or a casual and non recurring receipt and as such exempt from taxation under Section 4(3)(vii) of the Income tax Act." The High Court reformulated the question as follows: 921 "Whether there were materials to justify the finding of the Tribunal that the transaction of purchase and sale of 13,74,000 shares was an adventure in the nature of trade?" and answered the question so formulated in the affirmative and therefore against the assessee company. In its application for reference under section 8(5) of the Act the assessee company wanted some other questions also to be referred but the Investigation Commission only referred the question which has been set out above. The assessee company therefore took out a Notice of Motion on November 8, 1952, which was dismissed by the High Court on the ground that either the questions which were sought to be raised did not arise out of the finding of the Commission or they were included in the question which had been referred and answered by the High Court. Although the High Court did not so hold, the Notice of Motion was barred by time, being filed after more than six months allowed under section 66(2) of the Indian Income tax Act. Against this judgment and order of the High Court the assessee company has come in appeal to this Court by special leave. This appeal is brought against the judgment of the High Court answering the question referred and therefore in its advisory jurisdiction. The jurisdiction which this Court exercises in appeal is of the same character and therefore any question which was not referred to the High Court cannot be allowed to be raised at this stage. Consequently the constitutional question in regard to discrimination under article 14 of the Constitution which is now sought to be raised cannot be raised. The main question which would then survive for decision is the nature of transaction relating to the sale of 13 lacs odd shares and whether or not the sale was an adventure in the nature of trade and therefore the amount of Rs. 16,52,600 the excess of sale price over the purchase price of the share is a Revenue Receipt and therefore taxable profits or is it a Capital Receipt and therefore not liable to tax. The Investigation Commission by their order dated May 1, 1949, found: 922 (1) that a distinction should be made between the 6 lacs shares which the assessee company intended to and did retain and the 13 lacs odd shares which it intended to and did sell; the former was kept in order to enable the assessee company to make their Managing Agency rights effective. (2) During the negotiations between the Sassoons and the promoters of the. assessee company, the promoters of the assessee company had started negotiations with certain brokers for the transfer of 13 lacs odd shares soon after the arrangement between the Sassoons and the assessee company was completed. (3) From the very beginning the intention of the promoters of the assessee company was to sell all the 13 lacs odd shares and in pursuance thereof they were sold. (4) The paid up capital of the assessee company was Rs. 20 lacs only and according to the agreement they had to take the whole block of shares belonging to the Sassoons and pay for the shares as well as for the Managing Agency both of which were separately valued in the agreement. It was therefore necessary and it was intended to sell the 13 lacs odd shares in order to pay off the Sassoons both for the Managing Agency and the shares. The inference drawn from this by the Commission was that a distinction had to be drawn between the 6 lacs shares which the assessee company intended to retain and did in fact retain and the 13 lacs odd shares which they intended to sell and did sell. (5) that the intention to sell which the assessee company entertained from the very outset was a complete answer to the argument that the acquisition was in the nature of an investment. In giving its finding the Commission said: "Aggregating the 121 lakhs paid for the Manag ing Agency right and the full price of 6 lakhs and odd shares at Rs. 4 4 0 per share, the capital investment must amount to 121 lakhs and 251 lakhs, i.e., 38 lacs and odd. By deducting therefrom the profits of Rs. 16,52,600, the Company showed a capital investment of Rs. 21,54,200 and with the addition 923 of a few sundry items, it was brought up to Rs. 22,06,408 (see para 7 supra). " From this finding the inference drawn by the Commission was that the sale of 13 lacs odd shares was an adventure in the nature of trade. The High Court reformulated the question which has already been quoted and it was contended that the High Court was in error in narrowing down the scope of the question referred by the Commission. It is not necessary to adjudicate upon this argument because in our opinion taking the question as referred to be a proper question arising out of the report of the Investigation Commission the answer to the first part thereof would,still be in the affirmative. Inconsidering the question whether the transaction is or is not an adventure in the nature of trade we have to take into consideration the intention of the assessee keeping in view the "legal requirements which are associated with the concept of trade or business". The inference from the facts found by the Investigation Commission, i.e., whether the assessee company 's transaction in purchasing and selling 13 lacs odd shares is or is not an adventure in the nature of trade is a mixed question of law and fact and the legal effect of the facts found by the Investigation Tribunal is a question of law. See M/s. Ramnarain Sons (Pr.) Ltd. vs Commissioner of Income tax, Bombay (1). It was argued on behalf of the assessee company that: (1) that the dominant idea with which the whole transaction was entered into was to obtain the Managing Agency of the Apollo Mills; (2) that the assessee company was forced to buy the whole block of shares, i.e., 19,76,000 shares by the Sassoons because they were not prepared to part with the Managing Agency without the whole of their stock in the mill company; (3) that as the assessee company did not not have sufficient amount of money, their capital being only Rs. 20 lacs, it was to implement the tripartite agreement dated November 1, 1943, that the sale was made; and (1) (1961] 2 S.C.R. 904, 908. 924 (4) that the Memorandum of Association of the assessee company showed that it was a holding company and dealing in shares was not one of its objects. The agreement shows that the Sassoons had separately evaluated the Managing Agency and the shares held in the Apollo Mills Co. As the Investigation Commission has found, it was never the intention of the assessee company to retain the whole block of shares. Before the agreement was entered into they had made arrangement for the sale of the bulk of shares which were to be transferred by the Sassoons and therefore division of the shares into two sets was made by the promoters of the assessee company and the assessee company themselves and was not the result of anything done by the Investigation Commission. In; support of his contention that the amount of Rs. 16,52,600 was in the nature of Capital Receipt, reliance was placed on the judgment of this Court in M/s. Ramnarain 's case (1) but there are certain features and details which distinguish that case from the present case. It was held in that case that the question had to be decided in the light of the intention of the assessee and the assessee in that case bad purchased the shares of the Dawn Mills not as a business transaction. That was clear from the fact that the assessee bad purchased the shares at Rs. 2,321 8 0 per share and the market price was only Rs. 1,610, and the purpose of acquisition of such a large block of shares at a price exceeding the market price by a million rupees was the acquisition of the Managing Agency, which yielded the inference that the intention of purchasing the shares in that case was not to acquire them as a part of the trade of the assessee in shares but for obtaining the Managing Agency of the Mills. There was no separate price paid for the Managing Agency and the shares purchased and the Managing Agency acquired were both assets of a capital nature and the shares did not constitute stock in trade of a trading venture. In the present case the facts as shown were entirely different. (1) ; , 908. 925 Counsel for the assessee company also relied on Kishan Prasad & Co. Ltd. vs Commissioner of Income tax, Punjab (1). In that case the Managing Director of the company which was formed for the purpose of carrying on general business and trade of commercial undertaking and dealing in bills, hundis and other securities, entered into an agreement with a sugar syndicate by which the company was to be given the Managing Agency of a Mill of the sugar syndicate when such mill was erected in lieu of the company subscribing shares worth 3 lacs, and undertaking to sell shares worth 2 lacs. It was further provided that if the mill was not erected the assessee company was to be paid a commission on the amount invested by them. The Managing Director died and the assessee company sold the shares and thus received Rs. 2 lacs more than they had expended. The question was whether Rs. 2 lacs were receipts from business and not a mere appreciation in capital. It was held that that amount was not a result of an adventure in the nature of trade but was merely the result of an investment. It was found as a fact that the object of the company was merely to obtain the Managing Agency of the mill which would have been an asset of an enduring nature bringing profits but there was from the very inception no intention on the part of the company to resell the shares either at profit or otherwise. It appears that it was not contested that the conclusion to be drawn from those facts was that the investment in the purchase of shares in the circumstances of the case of a capital nature, and profits arising therefrom were an accretion to the capital. In that ease the court was trying to find out the intention of the assessee (the company) and taking all the circumstances into consideration it, came to the conclusion that it was a case not of profits arising out of an adventure in the nature of trade but the, intention of the assessee company was to invest its monies and therefore the excess arising out of sale of the shares was an accretion to the capital. That case must be taken to have been decided on its facts as (1) 926 indeed was the decision in M/s. Ramnarain Son 's case (1). Counsel for the assessee company referred to other cases: Tata Hydro Electric Agencies, Bombay vs The Commissioner of Income tax, Bombay Presidency & Aden (2); Commissioner of Income tax, Central and United Provinces, Lucknow vs Messrs. Motiram Nandram (3), Jones vs Leeming (4) and Commissioner of Inland Revenue vs Reinhold (5). It is unnecessary to re view these cases in any detail because they are clearly distinguishable in material respects and were decided on their own special facts. In Tata Hydro Electric Agencies ' case (2) the question for decision was whether 25% of the commission earned which was paid to the two financiers was expenditure deductible under section 10(2)(ix) and it was held that it was not because the obligation to make the payment was in consideration of acquiring the Managing Agency and the right to conduct business and not for the purpose of producing profits in the conduct of business. Similarly in Commissioner of Income tax vs Messrs. Motiram Nandram (3) the expenditure was for securing the agency which was to carry on business. Sir George Rankin said at p. 81: "The question in such a case a,% the present must be "what is the object of the expenditure?" and it must be answered from the standpoint of the assessees at the time they made it that is, when they were embarking upon the business of organizing agents for the company." Jones vs Leeming (4) was a case of an isolated transaction. The finding was that it was not in the nature of trade. Commissioner of Inland Revenue vs Reinhold(5) was ' decided on its own facts. Another case decided by this court upon which counsel for the appellant relied was Saroj Kumar Mazumdar vs Commissioner of Income tax, West Bengal, Calcutta (6) but that case was also decided on its own facts and it was held that there was no clear evidence in support of (1) [1961] 2.C.R. 004, 908 (3) (1939) L. R. 67 I. A. 71 (5) (1953) 34 T C. 389. (2) (1937) L. R. 64 I. A. 215. (4) (6) [1959] SUPP. 2 S C.R. 846. 927 the inference of the Appellate Tribunal that the land was purchased with the sole intention of selling it later at a profit. The English and Scottish cases on which the appellant relied were considered by the House of Lords in Edwards vs Bairstow (1).In that case the assessees who were the respondents embarked on a joint venture to purchase and complete a spinning plant agreeing between themselves not to hold it but to make a quick resale. With that object in view they approached and there were diverse negotiations and the whole plant was sold in about two years ' time at a profit of about pound 18,000 and for that purpose incurred commission for help in effecting sales, for insurance and other expenses. The General Commissioners found that it was not an adventure in the nature of trade to justify an assessment to income tax under Case 1 of Schedule D to the Income tax Act, 1918. It was held that the facts led inevitably to the conclusion that the transaction was an adventure in the nature of trade and that the Commissioner 's inference to the contrary should be set aside. Counsel for the respondent next relied on a Judgment of this Court in G. Venkataswami Naidu & Co. vs The Commissioner of Income tax (2) in which it was held that the presence of all the relevant factors may help the Court to draw the inference that the transaction is in the nature of trade but it is not a matter of counting the number of facts and circumstances for and against. What is important is to consider the distinctive character and it is the total effect of all the relevant factors that determines the character of the transaction. All these cases are illustrative. As was said by Gajendragadkar, J., in the above mentioned case the totality of circumstances of a case and the pros and cons have to be considered and inference drawn from those facts whether a particular transaction was in the nature of trade or was merely an investment and the resulting excess from the transaction was therefore profit which was taxable or was merely an accretion to the capital. In the instant case (1) ; (2) [1959] SUPP. 1 S.C.R. 646. 928 the pi of its from the transaction that consisted of buying the Managing Agency of the Mill Company and the block of shares held by the Sassoons were in our view the profits of an adventure in the nature of trade. The two groups, Morarka and Bubnas, put Rs. 20 lacs into the assessee company which was floated for the acquisition of the Managing Agency and shares of the Mill Company which were beyond the holding capacity of the assessee company. That company never intended to hold the whole block of shares. It or its promoters before even entering into the agreement of purchase and during the course of negotiations for the purchase had entered into arrangements with different brokers for the sale of shares or at least of a bulk of those shares which were subsequently sold at a profit and but for that sale the transact ion could not have been completed by the assessee company. The purchase of shares was not with the intention of holding them, the intention of the assessee was just the contrary and by the sale at a profit of the shares actually sold the assessee company expected to and did finance the completion of the transaction and thus was enabled to secure the Managing Agency and keep 6 lacs shares. This inescapably was a transaction of a commercial nature. It had all the attributes of an adventure in the nature of trade. The contention that dealing in buying and selling of shares was not one of its objects is without substance. The Investigation Commission found that dealing in shares was within the objects of the assessee company and this is one circumstance in the totality of the circumstances which must be considered, though by itself it is not determinative of the question. All the circumstances lead to the inference which was rightly drawn by the Investigation Commission and by the High Court. The answer to the first part of the question referred by the Investigation Commission must therefore be in the affirmative. It was contended that the question should not have been reframed and we have therefore proceeded to answer the question as framed by the Investigation Commission. In our opinion the question even as framed must be answered in the affirmative. 929 The Notice of Motion to raise other questions in the High Court was rightly dismissed. Apart from the fact that the Notice of Motion was barred by time and there was no application for condonation of delay, the questions which were sought to be raised were rightly held either to be covered by the question answered or they did not arise at all. The constitutional question under article 14 of the Constitution cannot be raised in these proceedings because as we have said above this Court is exercising its advisory jurisdiction and its power is confined to the questions which arise in an appeal. This appeal must therefore be dismissed with costs. Appeal dismissed.

The assessee company was promoted with the idea of obtaining the Managing Agency of the Appollo Mills from M/s. Sassoon total of 25 lakhs shares of RS. 2 each. According to the agreement the assessee company bad to take the whole of the block of shares belonging to the Sassoons and pay at Rs. 4 4 0 per share Rs. 12 1/2 lakhs for the managing agency. As the assessee company had only RS. 20 lakhs as its paid up capital, it was necessary to sell 13 lakhs odd shares in order to pay off the Sassoons both for the Managing Agency and the shares. Therefore during the course of negotiations the promoters of the assessee company entered into an agreement with some brokers for the sale of Rs. 19,76,000 shares. As a result of the sale of shares the assessee company received a sum of Rs. 16,52.600 as excess over the purchase price which amount on taxation was held by the Income tax Officer not to be profits and therefore not taxable. The case of the assessee company was referred to the Investigation Commission. The Commission found that it was not the intention of the assessee company to retain the whole block of shares and that the sale of 13 lakhs odd shares was an adventure in the nature of trade, and directed that appropriate assessment be made, under the Indian Income tax Act and Excess Profits Tax Act. At the instance of the assessee company the question was referred to the High Court under section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947, which held that there were materials to justify the finding of the Commission that the purchase and sale of about 13 lakhs odd shares was an adventure in the nature of trade. An appeal was taken to the Supreme Court against this order. Held, that in considering the question whether the transac tion was or was not an adventure in the nature of trade, the court had to take into consideration the intention of the assessee 918 keeping in view the "legal requirements which are associated with the concept of trade or business" In the present case, the transaction that consisted of buy ing the managing agency of the Mill Company and the block of shares held by Sassoons was inescapably one of a commercial nature and had all the attributes of an adventure in the nature If of trade. Held, further, that the jurisdiction which this Court would exercise in appeal was of the same character that a High Court would exercise. Thus the question under article 14 of the Constitution could not be raised in these proceedings because this Court like the High Court was exercising its advisory jurisdiction and its power was confined to the question which arose before the High Court. M/s. Ramnarain Sons (Pr.) Ltd. vs Commissioner of Income tax, Bombay; , , Tata Hydro Electric Agencies, Bombay vs The Commissioner of Income tax, Bombay Presidency & Aden, (1037) L.R. 64 I.A. 215, Commissioner of, Income tax, Central and United Provinces, Lucknow vs M/s. Motiram Nandram, (1939) L.R. 67 I.A. 71, Jones vs Leeming, [1930) A.C. 415, Commissioner of Inland Revenue vs Reinhold, and Saroj Kumar Mazumdar vs Commissioner of Income tax, West Bengal, Calcutta, [1959] SUPP. 2 S.C.R. 846, distinguished. Kishan Prasad & Co. vs Commissioner of Income tax, Punjab, , Edwards vs Bairstow, ; and G. Venkataswami Naidu & Co. vs The Commissioner of Income tax, [1959] SUPP. 1 S.C.R. 646, discussed.

The respondent Board of Trustees of the Port of Bombay is a statutory authority, and as such has been exempted from the operation of the Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947. The appellant has been the lessee of the respondent since about 1932 in respect of part of the original plot No. 4 (now plot 5B) which adjoins plot No. 6 tenanted by M/s Bombay Bharat & Swadeshi Rice Mills. In or about 1933 34, M/s Bombay Bharat & Swadeshi Rice Mills took over the appellant, and a rice mill was started on appel lant 's part of plot No. 4 and plot No. 6. In December 1957, the Town Planning Scheme No. 1 in Bombay City came into force, and the original plot No. 4 was reconstituted into final plot No. 5. In or about 1963 the respondent sub divided plot No. 5 into final plot 5A and final plot 5B, and as a result of the sub division M/s Dhanji Mavji became the tenant/occupant of a major portion of plot 5B, In 1970 71 the respondent agreed to let the entire plot 5B, including the portion which had been let to and was in possession of the appellant since 1933, to Dhanji Mavji. The appellant objected to the offer made to Dhanji Mavji but the respondent asserted that as Dhanji Mavji had been in possession of the major portion of plot No. 5B, it agreed to let the entire plot to them. In the premise, the respondent purported to terminate the tenancy of the appel lant in respect of its . portion of plot 5B, and later filed suit for eviction. The Trial Court dismissed the suit hold ing that it would be legitimate to infer that the letting was for a manufacturing purpose and hence the notice of termination was bad. The appellate court reversed that decision. Aggrieved thereby, the appellant filed a writ petition under Article 227 of the Constitution. The High Court accepted the finding of the appellate court that the notice of ejectment was valid notice and there was no waiver of notice. 752 Before this Court, it was contended on behalf of the appellant that (1) the exemption from the operation of the Rent Act was given to the Port Trust Authority on the as sumption that it would act in public interest and would not behave like ordinary landlords; (2) the action of the re spondent in terminating the appellant 's contractual tenancy had a public law character attached to it and was according ly subject to judicial review; (3) every action of the respondent which was 'State ' within Article 12 of the Con stitution, whether it be in the field of contract or any other field, was subject to Article 14 of the Constitution and must be reasonable and taken only upon lawful and rele vant grounds of public interest; (4) the respondent 's estab lished rational/policy was to offer/allot a final/reconsti tuted plot for development to the existing occupants thereof as joint tenants; and (5) the eviction of the appellant was not necessary in the public interest for the proper develop ment of the plot as required by the Town Planning Scheme. On behalf of the respondent it was contended that (1) the onus was entirely on the appellant to establish that the Bombay Port Trust had terminated the tenancy or taken the proceedings in eviction not in public interest but for a collateral purpose or mala fide or that it had acted in a manner contrary to the provisions of Article 14; (2) since there was no obligation or duty cast upon the Bombay Port Trust to provide accommodation, there could be no question of acting in governmental character, and such a body stood on the same footing as any other citizen and would, in respect of such activity, not be subjected to public law duty; (3) the respondent 's dealing with tenants was a con tractual dealing and it was not a matter for public law domain and was not subject to judicial review; and (4) it was the policy of the respondent to allot the entire re constituted plot to one person who was occupying the major portion of such plot, for its proper development. Dismissing the appeal, it was, HELD: Per Sabyasachi Mukharji, J., (Kania, J. agreeing) (1) Bombay Port Trust being a public body, even in respect of its dealing with its tenants, it must act in public interest, and an infraction of that duty is amenable to examination either in civil suit or in writ jurisdiction. [761G] Rampratap Jaidayal vs Dominion of India, [1952] 54 Bom. L.R. 927; and Baburao Shantaram More vs The Bombay Housing Board, [1954] V SCR 572, referred to. 753 (2) Where any special right or privilege is granted to any public or statutory body on the presumption that it must act in a certain manner. such bodies must make good such presumption while acting by virtue of such privilege. Judi cial review to oversee if such bodies are so acting is permissible. ]762D E] Radhakrishna Agarwal & Ors. vs State of Bihar & Ors. , ; and Life Insurance Corporation of India vs Escorts Ltd. & Ors., [1985] 3 Supp SCR 909, referred to. (3) The field of letting and eviction of tenants is normally governed by the Rent Act. The Port Trust is statu torily exempted from the operation of the Rent Act on the basis of its public/Governmental character. Every action/activity of the Bombay Port Trust which constituted "State" within Article 12 of the Constitution in respect of any right conferred or privilege granted by any statute is subject to Article 14 and must be reasonable and taken only upon lawful and relevant grounds of public interest. [762E F; 763A B] S.P. Rekhi vs Union of India, ; and M.C. Mehta & Anr. vs Union of India & Ors. , [1987] 1 SCC 395, referred to. (4) Where there is arbitrariness in State action, Arti cle 14 springs and judicial review strikes such an action down. Every action of the Executive authority must be sub ject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14. [763C] All exercise of discretion or power by public authori ties as the respondent, in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords must be judged by that standard. [763H; 764A] If a governmental policy or action even in contractu al matters fails to satisfy the test of reasonableness, it would be unconstitutional. [764A B] E.P. Royappa vs State of Tamil Nadu, ; ; Maneka Gandhi vs Union of India, [1978] 2 SCR 621; R.D. Shetty vs The International Airport Authority of India & Ors., ; ; Kasturi Lal Lakshmi Reddy vs State of J & K, ; and 754 Ajay Hasia vs Khalid Mujib Sehravardi, ; , referred to. (7) Governmental Policy would be invalid as lacking in public interest, unreasonable or contrary to the professed standards and this is different from the fact that it was not done bona fide. [764B C] (8) There is always a presumption that a governmental action is reasonable and in public interest. It is for the party challenging its validity to show that the action is unreasonable, arbitrary or contrary to the professed norms or not informed by public interest, and the burden is a heavy one. [764C D] (9) Judicial review is not concerned with the decision, but with the decision making process. Unless this restric tion on 'the power of the court is observed, the court under the guise of preventing the abuse of power, would be itself guilty of usurping power which does not belong to it. [765E F] (10) The Court cannot really substitute a decision reached by a fair procedure keeping the policy of the re spondent in mind by a different decision only on the ground that the decision which appeals to the court is a better one. [765G] Council of Civil Service Unions vs Minister for the Civil Service, ; Chief Constable of the North Wales Police vs Evans, ; In re Pres ton vs I.R.C., and Regina vs Chief Consta ble of the Merseyside Police, , referred to. (11) The Bombay Port Trust, perhaps, was justified in coming to the conclusion that the only possible way to develop the properties of the Bombay Port Trust in compli ance with the Town Planning Scheme was by allotting plots to holders of major portions thereon. Such a decision cannot be faulted. [766E F] (12) Upon the facts of the instant case, there was an implied obligation in respect of dealings with the tenants/occupants of the Port Trust Authority to act in public interest/purpose. That requirement is fulfilled if it is demonstrated that the Port Trust authorities have acted in pursuance of a policy which is referable to public pur pose. Once that norm is established whether that policy is the best policy or whether another policy was possible, is not relevant for consideration. [767E F] 755 (13) Under the constitutional scheme of this country, the Port Trust Authorities were required by relevant law to act in pursuance of public purpose. This Court is satisfied that they have proceeded to so act. [767G] Per section Ranganathan, J. (Concurring) On the facts of the instant case, the action of the Port Trust was not improper and there are no grounds for inter ference. [768F]

The appellant assessee filed a memorandum of appeal to the Assistant Commissioner, Sales Tax, stating therein that the amount of admitted tax had been paid and forfeited the statement by an affidavit. Before the hearing, he produced a certificate from the Sales Tax Officer that the tax had been paid. The Assistant Commissioner relying on the Allahabad High Court 's decision in Swastika Tannery, Jaimau vs Commissioner of Sales tax, U.P. rejected as defective the memorandum of appeal, holding that it was not accompanied by the challan showing the deposit of admitted tax under section 9 of the Uttar Pradesh Sales Tax Act, 1948 and r. 66 of the U.P. Sales tax Rules. Against this order the assessee directly filed special leave to appeal to this Court without exhausting the remedies of revision and reference provided in the Act. This Court granted Special Leave and; HELD:The appeal must be allowed. (i) By the word "entertain" in the proviso to section 9 is meant the first occasion on which the Court take up the matter for consideration. It may be at the admission stage or if by the rules of that Tribunal, the appeals are automatically admitted, it will be the time of hearing of the appeal. But on the first occasion when the court takes up the matter for consideration, satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal. Rule 66(2) lays down one uncontestable mode of proof which the Court will always accept but it does not exclude the operation of the proviso when equally satisfactory proof is made available to the officer hearing the appeal and it is proved to his satisfaction that the payment of the tax has been duly made and in time. [512E F; 513E G] In the present case, when the Assistant Commissioner took tip the appeal for consideration, satisfactory proof was available in the shape of a certificate. Swastika Tannery of Jaimau vs Commissioner of Sales tax, U.P. Lucknow, (1963) 14 S.T.C. 518, disapproved. Kundan Lal vs Jagannath Sharma, A.I.R. 1962 All. 547; Dhoom Chand Jain vs Chaman Lal Gupta and Anr. A.I.R. 1962 All. 42: Haji Rahim Bux & Sons & Ors. vs Firm Samiullah & Sons, A.I.R. 1963 All. 320, approved. (ii) Though this Court would not ordinarily grant special leave to appeal against an order when other remedies were available and had not been exhausted, there is no inflexible rule that this Court will never entertain such an appeal. It would have been futile in this case for the assessee to have gone to the court of revision which was bound by the decision in Swastika Tannery of Jaimau vs Commissioner of Sales tax, U.P. and it would have been equally 506 futile to have gone to the High Court on a reference. The matter was more easily disposed of by giving special leave in this Court and this was one of those extra ordinary cases in which the ends of justice would be better served, by avoiding a circuity of action and by dealing with this matter in this Court directly. [513H 514C]

For the two accounting periods the assessee, a resident company, incorporated outside India paid estate duty payable on the death of its certain share holders not domiciled in India and debited the said amounts to revenue in its accounts in ascertaining the profits and gains of its business for the said years. The Income tax Officer included the said amounts so paid towards estate duty in the profits and gains of the company for the said two accounting periods and assessed the company to income tax for 1955 56 and 1956 57 on that basis. The appeals by the assessee to the Appellate Assistant Commissioner were dismissed but on further appeal, the Appellate Tribunal set aside the said orders and held that the assessee was entitled to deduct the said amount in computing its profits. On an application by the Commissioner of Income tax, the Tribunal stated a case under section 66(1) of the Act to the High Court and referred the following question of law for its opinion: "Whether on the facts and in the circumstances ,of the case, the estate duty paid by the company under s, 84 ,of the , is a revenue expenditure deductible in computing the assessee 's business income for the ,assessment years in question." The High Court agreed with the view of the Tribunal and answered the question in the affirmative. On appeal by special leave it was urged on behalf of the appellants, (1) that the sum paid by the assessee under section 84 of the were not expenditure of the assessee company and therefore, they could not be deducted from its profits in computing its assessable income under section 10(2)(xv) of the Act; and (2) that even if it was revenue expenditure, it was not laid out or expended wholly or exclusively for the purpose of the assessee 's business within the meaning of the said sub clause. Held: (i) There was nothing on the record to show whether in England, where the concerned share holders died, the resident company could recover the amount representing the estate duty paid by it in India from the legal representative of the deceased share holders. Therefore, the assessee who, as a statutory agent paid to the State the estate duty, could not recover the same from the legal representative of the deceased non resident share holders. In that situation the company would be out of pocket to the extent it paid the estate duty of the said persons. Therefore, it cannot be held that the amounts paid by the assessee towards estate duty were not expenditure incurred by it, but only amounts paid by it on account with a right to recover the same from the persons on whose behalf it paid. (ii)The expression" for the purpose of the business"in s.10(2) (xv) of the Act is wider in scope than the expression "for the purpose of earning profits". Its range is wide: it may 694 take in not only the day to day running of a business but also the rationalization of its administration and modernization of its machinery; it may include measures for the preservation of the business and for the protection of its assets and property from expropriation, coercive process or assertion of hostile title; it may also comprehend payment of statutory dues and taxes imposed as a pre condition to commence or for carrying on of a business; it may comprehend many other acts incidental to the carrying on of a business. However wide the meaning of the expression may be, its limits are implicit in it. The purpose shall be for the purpose of the business, that is to say, the expenditure incurred shall be for carrying on the business and the assessee shall incur it in his capacity as a person carrying on the business. It cannot include sums spent by the assessee as agent of a third party, whether the origin of the agency is voluntary or statutory; in that event, he pays the amount on behalf of another and for a purpose unconnected with the business. In the present case, the amounts in question were paid by the assessee as a statutory agent to discharge a statutory duty unconnected with the business, though the occasion for the imposition arose because of the territorial nexus afforded by the accident of its doing business in India. Therefore, it must be held that the estate duty paid by the respondent was not an allowable deduction under section 10(2)(xv) of the Act. Case law reviewed.

The appellant, a firm of Surat, had a branch at Bangkok, to which it exported cloth, and the branch also made purchases locally and sold them. During the war the business of the branch had been in abeyance, but was re started after the termination of the hostilities. in its return for the assessment year 1949 50 the appellant did not include any profit of the branch, but stated that the books of account of branch were not available, and therefore its profits might now be assessed on an estimate basis subject to 561 action under s.34 or 35.The assessment was made on the basis of profit at 5 % on the export to the branch appearing in the Surat books. A similar estimate was made for year 1950 51. For the year 1951 52 also the business profits of the branch were not shown but the Income tax officerissued a notice to the assessee to produce the relevant accountsand books. The appellant excused itself by promising that in thefollowing year these accounts for the year 1950 would be produced. Thereupon the Income tax Officer made an estimate of the sales of the branch and of the net profits at 5 % thereon, amounting to Rs. 37,500/ , and the same day he issued a notice to show cause why a penalty for concealment of the particulars of the income of 1951 52 should not be levied. Subsequently, the Income tax Officer imposed a penalty of Rs. 20,000/ on it as its explanation was not acceptable. In the meantime assessment proceedings for the year 1952 53 had commenced and the appellant adopted a similar attitude. The Income tax Officer was insistent and, therefore, appellants had to produce the accounts and books of the branch, from which it appeared that for the year 1951 52 the appellant had made a profit of Rs. 1,25,520/ . The Income tax Officer issued a further notice to the appellant to show cause why penalty should not be levied for deliberately concealing income for the year 1951 52. Pursuant to this notice the Income tax Officer passed another order imposing a penalty of Rs. 68,501/ . The appellant 's appeal to the Appellate Assistant Commissioner against both the orders of penalty was rejected. On appeal, the Tribunal cancelled the first order of penalty but confirmed the second one. This hereafter, the appellant obtained a reference to the High Court on the question: "Whether the levy of Rs. 68,501/ as penalty for concealment in the original return for the assessment year 1951 52 is legal?" The High Court answered the question in the affirmative. On the appeal by special leave it was urged that the second order for penalty was illegal because there was one concealment and in respect of that a penalty of Rs. 20,000/ had earlier been imposed, that there was no jurisdiction to make the second order of penalty while the first order stood and for that reason the second order must be treated as a nullity; and that the fact that the first order was subsequently cancelled by the Tribunal would not set the second order on its feet for it was from the beginning a nullity as having been made when the first order stood. Held: (i) The contentions must be rejected. The Income tax Officer had full jurisdiction to make the second order and he would not lose that jurisdiction because he had omitted to recall the earlier order, though it may be that the two orders in respect of the same concealment could not be enforced simultaneously or stand together. When the Income tax Officer ascertained the true facts and realised that a much higher penalty could have been imposed, he was entitled to recall the earlier order and pass another order imposing the higher penalty. If he had omitted to recall the earlier order that would not make the second order invalid, 1 SCI/64 36 562 (ii)In the present case the earlier order having been cancelled and no objection to the cancellation having been taken, there is only one order, which is a legal order. C.V. Govindarajulu Iyer vs Commissioner of Income tax, Madras, , distinguished.

The respondent firm was assessed to income tax for the assessment years 1947 48, 1948 49 and 1949 50 under section 23(3). The Income tax Officer renewed the registration of the firm under section 26A of the Income tax Act and passed an order under section 23(6) allocating the shares of the various partners. The respondent preferred appeals against the orders of assessment to the Appellate Assistant Commissioner. Oil November 4, 1950, the Appellate Assistant Commissioner partly accepted the appeals in respect of the assessment years 1947 48 and 1948 49 but the appeal in respect of the assessment year 1949 50 was still pending. Meanwhile after issuing notice to the parties and hearing them the Commissioner, acting under section 33B(1), passed an order on June 5, 1952, cancelling the registration granted under section 26A on the ground that one of the partners of the firm was a minor, and directed the Income tax Officer to make fresh assessments for the three years. The respondent preferred appeals to the Appellate Tribunal which were allowed. On the application of the appellant the Tribunal referred, under section 66(1) of the Act, three questions to the High Court of Bombay. In regard to the assessment years 1947 48 and 1948 49 the High Court held that the orders of the Income tax Officer granting registration had merged in the appellate orders of the Assistant Appellate Commissioner and the revisional power of the Commissioner under section 33B(1) could not be exercised in respect of them. With regard to the renewal of registration for the year 1949 50 the High Court held that the Commissioner could not exercise his revisional power as the propriety of this order was open to consideration by the Appellate Assistant Commissioner in the respondent 's appeal pending before him. The appellant obtained special leave and appealed: Held, that the Commissioner had the authority under section 33B(1) to set aside the orders of registration made by the Income tax Officer. An order of the Income tax Officer granting registration was not appealable before the Appellate Assistant Commissioner. Such an order could be cancelled by the Commissioner in exercise of his revisional powers under section 33B(1) ; but it could not be cancelled by the Appellate Assistant Commissioner even in the exercise of his appellate jurisdiction when dealing with an appeal by an assessee. The theory that the order of a tribunal merges in the order of the appellate authority did not apply to the order of registration passed by the Incometax Officer. Commissioner of Income tax, Bombay North vs Tejaji Farasram Kharawala, , referred to. Durgabati and Narmadabala Gupta vs Commissioner of Income tax, , disapproved. But the Commissioner has no power while exercising his revisional jurisdiction under section 33B(1) of the Act to set aside the assessment orders. The Commissioner, in the present case, did 715 not really intend to set aside the assessment orders but merely to direct the Income tax Officer to make suitable consequential amendments in regard to the machinery or procedure. to be adopted to recover the tax payable by the respondent. The registration or non registration of a firm does not at all affect the computation of taxable income; it merely governs the procedure to be adopted in recovering the tax found due. Shapurji Pallonji vs Commissioner of Income tax, Bombay, , referred to.

This appeal to the Supreme Court was from a reversing decree of the Bombay High Court in a suit for possession of certain immovable properties. The suit was dismissed by the trial court on 20 12 1946, the value of properties being found to be over Rs. 10,000. The decree of the High Court allowing the plaintiff 's claim was passed on the 8th November 1949. The defendants applied to the High Court for leave to appeal to the Federal Court on 6 1 1950 which was granted on 1 10 1951. One of the questions for determination was whether article 133 of the Constitution applied to the case and the appeal was competent to the Supreme Court. Held, that article 133 did not apply as it relates expressly to appeals against any judgment, decree or final order in a civil proceeding of a High Court in the "territory of India". Held further that on the date of the decree of the High Court, the defendants had a vested right of appeal to the Federal Court as the properties were of the requisite value and on 6 1 1950 a certificate of leave to appeal was bound to be granted. Held also that the appeal was competent to the Supreme Court by virtue of the provisions of article 135 of the Constitution as the jurisdiction and powers in relation to the matter in dispute were exercisable by the Federal Court immediately before the commencement of the Constitution under an existing law inasmuch as the Federal Court had jurisdiction to entertain and hear appeals from a decree of a High Court which reversed the lower court 's decree as regards properties of the value of more than Rs. 10,000. The construction contended for by the respondent that the jurisdiction was exercisable under article 135 by the Federal Court only if the matter was actually pending before the Federal Court and that it could not be said to be pending until the appeal is declared admitted under Order XLV of the Civil Procedure Code is 873 too narrow and does not give full and proper scope to the meaning of the word 'exercisable ' in the Article.

This appeal arose out of a case under the Kerala General Sales Tax Act. The assessee firm (assessee) had been appointed as distributor by the Travancore Cochin Chemicals Ltd. (the "said company") to effect sale of their product under an agreement. In the assessment of the assessee firm for the period 1967 68 under the Kerala General Sales Tax Act, final assessment was completed and the turnover as reported by the assessee was accepted and tax, levied on that basis. Later, the assessing authority alleged that certain transactions in the aforesaid period had been wrongly excluded from the turnover reported by the assessee in the return and the turnover had escaped assessment. The contention of the assessee that the transactions did not constitute sales by the said company to the assessee was rejected by the Assessing Officer and it was held that the said turnover was liable to be included in the taxable turnover as escaped turnover. An appeal by the assessee to the Appellate Assistant Commissioner was dismissed. In second appeal to the Tribunal, the Tribunal held that the transactions in question had taken place directly between the said company and the consumers and the assessee was merely an agent of the company, and allowed the appeal. The High Court on revision held that the Tribunal was wrong in concluding that the assessee was acting only as an agent in respect of the said transactions between the said company and the consumers, and allowed the Revision Application. The assessee firm appealed to this Court by special leave against the decision of the High Court. Dismissing the appeal, the Court, ^ HELD: Both the parties proceeded on the footing that the transactions in question were effected pursuant to the agreement, sub clause (a) of clause 2 whereof provided that the distributor had the right of sale 880 of the product within the stipulated area. Bulk supplies were effected in waggon load or lorry load by the said company direct to the consumer pursuant to orders booked by the assessee firm. The distributor arranged the payment as per the agreement and also took the responsibility to bear entirely the resultant effects and risk from the said direct dispatches. It was true that the price at which the goods were to be sold to the customers was fixed by the company but that did not lead to the conclusion that the assessee acted merely as an agent of the said company. The mere fact that the manufacturer fixes the sale price by itself cannot lead to the conclusion that the distributor is merely an agent. Under the agreement, what the distributor got was described as a "rebate" and not "Commission", as is normally expected in an agreement of agency. This is a factor, by no means conclusive, but to a certain extent indicative of the relationship between the said company and the assessee. More important, the supplies were made to the distributor against payment immediate or deferred as provided in the agreement, and even when the goods were destined directly to the customer, the distributor had to guarantee to arrange the payment, as per clause 8. Where there was some time lag between the sending of the goods and the payment, the goods were to be insured at the cost of the assessee. This circumstance clearly showed that in respect of the goods dispatched under orders placed by the distributors, the distributors really acted as purchasers of the goods which they in turn sold to the customers and did not merely act as agents of the said company. In respect of the goods in question, despatched through public carriers, although the invoices were prepared in the names of the customers of the goods and the goods were consigned to the destination through public carrier booked to self, the bills were endorsed and delivered to the assessee. In the light of the agreement, these circumstances clearly showed that in respect of these transactions the property in the goods dispatched passed to the distributors on the bills being endorsed and handed over to the distributors. [884D H;885A D] Although the Court had referred to the assessee being described in the agreement as "distributor" and not as "agent" and to the fact that what they got was described as "rebate" and not "commission", the Court had not treated these circumstances as decisive. But these descriptions considered in the light of the general tenor of the agreement and the circumstances surrounding the transactions between the parties showed that the assessee was not an agent but really a purchaser from the company in respect of the goods in question, and the transactions were liable to be included in the turnover of the assessee. [885G H;886A] 881 The Bhopal Sugar Industries Ltd. vs Sales Tax Officer, Bhopal, ; ;and Pollack & Mulla 's Commentary on the Sale of Goods & Partnership Acts, 4th Edition, p. 114, referred to.

Appeal No. 294 of 1955. Appeal by special leave from the Judgment and Order dated the 7th September, 1955, of the Nagpur High Court, in Civil Revision No. 833 of 1954. B.B. Tawakley, (K. P. Gupta, with him for the appellant. R. section Dabir and R. A. Govind, for respondent No. 1. 1955. December 2. The Judgment of the Court was delivered by BOSE J. The appellant was a candidate for the office of President of the Municipal Committee of Damoh. The respondents (seven of them) were also candidates. The nominations were made on forms supplied by the Municipal Committee but it turned out that the forms were old ones that had not been brought up to date. Under the old rules candidates were required to give their caste, but on 23 7 1949 this was changed and instead of caste their occupation had to be entered. The only person who kept himself abreast of the law was the first respondent. He struck out the word "caste" in the printed form and wrote in "occupation" instead and then gave his occupation, as the new rule required, and not his 1031 caste. All the other candidates, including the appellant, filled in their forms as they stood and entered their caste and not their occupation. The first respondent raised an objection before the Supervising Officer and contended that all the other nominations were s; invalid and claimed that he should be elected as his was the only valid nomination paper. The objection was overruled and the election proceeded. The appellant secured the highest number of votes and was declared to be elected. The first respondent thereupon filed the election petition out of which this appeal arises. He failed in the trial Court. The learned Judge held that the defect was not substantial and so held that it was curable. This was reversed by the High Court on revision. The learned High Court Judges referred to a decision of this Court in Rattan Anmol Singh vs Atma Ram(1) and held that any failure to comply with any of the provisions set out in the various rules is fatal and that in such cases the nomination paper must be rejected. We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines. This principle was enunciated by Viscount Maugham in Punjab Co operative Bank Ltd., Amritsar vs Incometax Officer, Lahore(2) and was quoted by the learned High Court judges ' "It is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially". (1) ; (2) [1940] L.R. 07 I.A. 464, 476, 1032 But apart from that, this is to be found in the Act itself. The learned High Court Judges were of opinion that the directions here about the occupation were mandatory. That, we think, is wrong. The present matter is governed by section 18 of the Central Provinces and Berar Municipalities Act (II) of 1922. Among other things, the section empowers the State Government to "make rules under this Act regulating the mode. . of election of presidents. ." and section 175(1) directs that "all rules for which provision is made in this Act shall be made by the State Government and shall be consistent with this Act", Now one of the provisions of the Act, the one that directly concerns us, is set out in section 23: "Anything done or any proceeding taken under this Act shall not be questioned on account of any defect or irregularity not affecting the merits of the case". The rules have therefore to be construed in the light of that provision. Rule 9 (1)(i) states that " each candidate shall. .deliver to the Supervising Officer a nomination paper completed in the form appended and subscribed by the candidate himself as assenting to the nomination and by two duly qualified electors as proposer and seconder". The amended form requires the candidate to give, among other things, his name, father 's name, age, address and occupation; and rule 9(1)(iii) directs that the Supervising Officer "shall 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 enquiry, if any, as he thinks necessary, refuse any nomination on any of the following grounds: * * * * 1o33 (C) that there has been any failure to comply with any of the provisions of clause (i). . " It was contended that the word "may" which we have underlined above has the force of "shall" in that context because clause (a) of the rule reads "(a) that the candidate is ineligible for election under section 14 or section 15 of the Act". It was argued that if the candidate 's ineligibility under those sections is established, then the Supervising Officer has no option but to refuse the nomination and it was said that if that is the force of the word "may" in a case under clause (a) it cannot be given a different meaning when clause (c) is attracted. We need not stop to consider whether this argument would be valid if section 23 had not been there because the rules cannot travel beyond the Act and must be read subject to its provisions. Reading rule 9(1) (iii) (c) in the light of section 23, all that we have to see is whether an omission to set out a candidate 's occupation can be said to affect "the merits of the case". We are clear it does not. Take the case of a man who has no occupation. What difference would it make whether be entered the word "nil" there, or struck out the word "occupation" or placed a line against it, or just left it blank? How is the case any different, so far as the merits are concerned, when a man who has a occupation does not disclose it or misnames it, especially as a man 's occupation is not one of the qualifications for the office of President. We are clear that this part of the form is only directory and is part of the description of the candidate;, it does not go to the root of the matter so long as there is enough material in the paper to enable him to be identified beyond doubt. It was also argued that there was a reason for requiring the occupation to be stated, namely, because section 15(k) of the Act disqualified any person who "holds any office of profit" under the Committee. But disclosure of a candidate 's occupation would not necessarily reveal this because the occupation need only be stated in general terms such as "service" or 1034 "agriculture" and need not be particularised; also, in any 'event, section 15 sets out other grounds of dis qualification which are not required to be shown in the form. As regards our earlier decision. That was a case in which the law required the satisfaction of a particular official at a particular time about the identity of an illiterate candidate. That, we held, was the substance and said in effect that if the law states that A must be satisfied about a particular matter, A 's satisfaction cannot be replaced by that of B; still less can it be dispensed with altogether. The law we were dealing with there also required that the satisfaction should be endorsed on the nomination paper. That we indicated was mere form and said at page 488 "If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case like that, be regarded as an unsubstantial technicality". A number of English cases were cited before us but it will be idle to examine them because we are concerned with the terms of section 23 of our Act and we can derive no assistance from decisions that deal with other laws made in other countries to deal with situations that do not necessarily arise in India. The appeal succeeds and is allowed with costs here and in the High Court. The order of the High Court is set aside and that of the Civil Judge restored.

The appellant was a candidate for the office of President of the Municipal Committee, Damoh. The nomination was made in an old form under the old rules which required a candidate to enter his caste. Under the new rules this was changed and occupation had to be stated instead, which none except the respondent No. I had done. Objection to the validity of the appellant 's nomination paper was overruled by the Supervising Officer. The appellant secured the highest number of votes and was declared elected. The respondent No. 1, thereupon, filed the election petition. He failed in the Election Tribunal which held that the defect was not substantial and was curable. The High Court, however, reversed this decision in revision, holding that failure to comply 'with any of the provisions set out in the rules was fatal and in such cases the nomination paper should be rejected. 1030 Held, that the rule requiring the occupation of the candidate to be stated in the nomination form was directory and not mandatory In character and as the failure to comply with it did not affect the merits of the case as laid down in section 23 of the Act, the election could not be set aside on that ground. Rattan Anmol Singh vs Atma Ram ([1955] 1 S.C.R. 481), dis tinguished. Courts should not go by mere technicalities but look to the substance. Some rules may be vital, while others are merely directory, and a breach of these may be overlooked, provided there is substantial compliance with the rules read as a whole and no prejudice ensues. When the Act does not make a clear distinction, it is the duty of the court to sort out one class from the other along broad based commonsense lines. Punjab Co operative Bank Ltd., Amritsar vs Income Tax Office? , Lahore ([1940] L.R. 67 I.A. 464), referred to.

Where at the hearing of an appeal filed by special leave from a decision of the High Court in a Writ Petition filed there under article 226 of the Constitution of India against an order of the Payment of Wages Authority, the Court considered that there was some force in the contention relating to the jurisdiction of the Authority concerned but did not decide that question on the view that as there had been no failure of justice the Court would not interfere under its powers under article 136, and the appellant applied for a review of the judgment 15 114 Held, that wide as are the powers of the Supreme Court under article 136 of the Constitution, its powers are discretionary and though special leave had been granted the Court was not bound to decide the question of jurisdiction of the inferior tribunal or court where the decision of the inferior tribunal or court had been taken to a higher tribunal which undoubtedly had jurisdiction and from the decision of which the special leave was granted if on the facts and circumstances of the case it came to the conclusion in dealing with the appeal under that Article that there was no failure of justice. A. M. Allison vs B. L. Sen, ; , relied on.

The appellant Board passed a special resolution on September 28, 1956, imposing water tax in Hapur and a notification by the Uttar Pradesh Government was published in the Uttar Pradesh Gazette under section 135(2) of the U.P. Municipalities Act (2 of 1916) notifying the resolution. Fifteen house owners of Hapur who received notices from the appellant Board for the payment of the tax petitioned to the High Court under article 226 ,of the Constitution and asked for a writ or order preventing the appellant Board from realising the tax. The main objections were (a) that the resolution of the appellant Board framing the proposal was not pub lished in a local paper of Hapur published in Hindi and (b) that the rules framed for the imposition of the tax did not accompany the resolution which was affixed on the notice board at the office of the appellant Board in purported compliance with the requirements for publication. The imposition was also challenged on the ground that articles 14 and 19 of the Constitution were violated. A single judge of the High Court held that the tax was illegal inasmuch as the mandatory requirements of the Municipalities Act were not complied with by the appellant Board while imposing the tax and that section 135(3) of the Act (which cures all defects in the imposition of the tax by making the notification of Government conclusive evidence of the legality of the imposition) was ultra vires article 14 of the Constitution because it created a bar against proof and left no remedy to the tax payers thereby making a discrimination between them and other litigants. He further held that the sub section by making Government the sole judge of compliance with the Act conferred judicial power on Government contrary to the intendment of the Constitution. The appellant Board appealed under the Letters Patent. The Divisional Bench upheld the order of the single judge. The case was however certified as fit for appeal under article 133 and the Board appealed to this Court. The contentions raised in appeal were: (i) s.135(3) shuts out all ,enquiry into the procedure by which a tax had been imposed and therefore suffered from excessive delegation of legislative function. (ii) The tax had not been validly imposed a there had been non observance of mandatory provisions; (iii) section 135(3) was discriminatory; and (iv) the sub section was also bad because it conferred judicial functions on the State Government. HELD : Per Gajendragadkar, C.J., Hidayatullah, Shah and Sikri. JJ. (i) The rule of conclusive evidence in s.135(3) does not shut out all enquiry by courts. There are certain matters which cannot be established by a notification under s.135(3). For example no notification can issue unless there is a special resolution under section 134. The special resolu 951 tion is a sine qua non for the notification. Again the notification cannot authorise the imposition of a tax not included in section 128 of the Municipalities Act. Neither the Municipal Board nor the State Government can exercise such power. What the section does is to put beyond question the procedure by which the tax is imposed, that is to say the various steps taken to impose it. A tax not authorised, can never be within the protection afforded to the procedure for imposing taxes. Such a tax may be challenged, not with reference to the manner of imposition but as an illegal impost. [958 A D] (ii) There can be no doubt that some of the provisions of sections 131 to 134 of the Act are mandatory. But all of them are not of the same character. In the present case, as in Raza Buland Sugar Co. Ltd. and in Berar Swadeshi Vanaspati, the provisions not observed were of a directory character and therefore the imposition had the protection of section 135(3). [958 H] Raza Buland Sugar Co. Ltd. vs Municipal Board, Rampur. ; and Berar Swadeshi Vanaspati vs Municipal Committe, Committee Sheogaon & Anr. , relied on. (iii) Mandatory provisions must be fully complied with, and directory provisions should be substantially complied with. In either case the agency for seeing to this compliance is the State Government. It is hardly to be expected that the State Government would not do its duty or that it would allow breaches of the provisions to go unrectified. In cases of minor departure from the letter of the law especially in matters not fundamental, it is for the Government to see whether there has been substantial or reasonable compliance. Once Government condones the departure, the decision of the Government is rightly made final by making the notification conclusive evidence of the compliance with the requirements of the Act. [959 H 960 D] (iv) The power to tax belongs to the State Legislature but is exercised by the local authority under the control of the State Government. It is impossible for the State Legislature to impose taxes in local areas because local conditions and needs must very. The power must be delegated. The taxes however are predetermined and a procedure for consulting the wishes of the people is devised. But the matter is not left entirely in the hands of the Municipal Boards. As the State Legislature cannot supervise the due observance of its laws by the municipal Boards power is given to the State Government to check their actions. The proceedings for the imposition of the tax must come to a conclusion at some stage after which it can be said that the tax has been imposed. That stage is reached, not when the special resolution of the Municipal Board is passed but when the notification by Government is issued. After the notification all enquiry must cease. This is not a case of excessive delegation unless one starts with the notion that the State Government may collude with the Municipal Board to disregard deliberately the provisions for The imposition of the tax. There is no warrant for such a supposition. The provision making the notification conclusive evidence of the proper imposition of the tax is conceived in the best interest of compliance of the provisions by the Board and not to facilitate their breach. [960 F 961 E] Excessive delegation is most often found when the legislature does not perform all the essential legislative functions and leaves them to some other agency. The Legislature here performs all essential functions in the imposition of the tax. The selection of the tax for imposition in a municipal area is by the legislative will expressed in section 128. Neither the Municipal Board, nor the Government can go outside the list of taxes therein included. The procedure for the imposition of the tax is also, laid down 952 by the Legislature for the Municipal Board to follow and the State Government is there to ensure due observance of that procedure. in view of all this there was no excessive delegation or conferral or legislative functions on the appellant Board or the State Government. [961 F 962 C] (v) There are numerous statutes including the Evidence Act, in which a fact is taken to be conclusively proved from the existence of some other fact. The law is full of fictions and irrebuttable presumptions which also involve proof of facts. The tax payers in the Municipality are allowed to object to the proposal for the tax and the rules and to, have their objections considered. They cannot be allowed to keep on agitating. Section 135(3) which only concludes objections against the procedure followed in the imposition of the tax cannot be said to be discriminatory and viola tive of article 14. [962 D H] (vi) The objection that the impugned sub section involves the exercise of judicial functions not open to the legislature is wholly erroneous. The subsection only shuts out further enquiry and makes the notification final. [962 H] Per Wanchoo, J. (dissenting) (i) Section 135(3) bars enquiry by courts into all procedural provisions relating to imposition of taxes and therefore it bars enquiry into any matter covered by section 131 to section 135(1) of the Act. It cannot be read down as barring enquiry only into some procedural provisions i.e. from section 131 to section 133 and not into the other procedural provisions i.e. section 134 and section 135(1). [968 D] Section 135(3) is not a rule of evidence; it is a substantive provision which lays down in effect that once a notification under section 135(2) is issued it will be conclusively presumed that the tax is in accordance with all the procedural provisions with respect to the imposition thereof. [969 E] Ishar Ahmad Khan vs Union of India, [1962] Supp. 3 S.C.R. 235, referred to. The effect of section 135(3) is that the procedural provisions are given the go by in the matter of imposition of tax and as soon as a notification under section 135(2) is shown to the court, the court is helpless, in the matter even though none of the provisions of section 131 to section 135(1) may have been complied with. [969 H] (ii) In the field of local taxation relating to municipal boards and district boards and similar other bodies there are reasons for delegating :fixation of rate to such bodies subject to proper safeguards. This is exactly what has been done under the Act subject to the safeguards contained in sections 131 to section 135(1). If those safeguards are followed the delegation would be proper delegation and could not be challenged as ultra vires on the ground of excessive delegation. But if the legislature after laying down with great care safeguards as to the imposition of tax including its rate makes a blanket provision like section 135(3), which at one stroke does away with all those safeguards and this is what section 135(3) has done in the present case the position that results is that there is delegation of even the essential function of fixing the rate to the subordinate authority without any safeguard. Such a delegation would be excessive delegation and would be ultra vires. [972 D F] (iii) Section 135(3) inasmuch as it makes the delegation contained in sections 128 to 135(2) excessive must be severed from the rest of the sections which are otherwise a proper delegation of legislative authority and should be struck down on the ground of excessive delegation. [973 B] 953

By an order dated August 20, 1943, the Appellate Tribunal directed that certain deductions claimed by the assessee should be allowed. The matter came back to the Income tax Officer and he made an order on September 26, 1945, but did not issue any fresh notice of demand. The assessee appealed to the Appellate Assistant Commissioner complaining that in his order of September 26, the Income tax Officer had wrongly included a sum of Rs. 13,000 60 464 as unassessed foreign income of earlier years. The Appellate Assistant Commissioner held that the order of September 26 was not appealable. The assessee, therefore, made a miscellaneous application to the Appellate Tribunal, which held that the Incometax Officer acted wrongly in including the sum of Rs. 13,000 at that stage and directed the Income tax Officer to revise his computation accordingly. The Commissioner of Income tax, being of opinion that the Appellate Tribunal had no jurisdiction to entertain or make such order on a miscellaneous application applied for a reference to the High Court under section 66 (1) of the Income tax Act. The Tribunal referred certain questions and the High Court directed the Tribunal to refer certain other questions also but when the references came on for bearing the High Court held that the references were incompetent. The Commissioner of Incometax appealed to the Supreme Court with the leave of the High Court : Held, (i) that in carrying out the directions of the Tribunal and in passing the order of September 26, 1945, the Income tax Officer cannot be regarded as having acted under section 23 or section 27 of the Act and no appeal lay from his order under section 30 (1). The order made by the Appellate Assistant Commissioner was not therefore an order under a. 31 (3) and no further appeal lay to the Appellate Tribunal under section 33 (1) so as to enable the Tribunal to make an order under section 33 (4) and us there was no order under a. 33 (4), no question of law can be said to arise out of an order under section 33 (4) and there can be no valid reference under section 66 (1) or section 66 (2); (ii) even assuming that the order of the Income tax Officer dated September 26, 1945, was an order under a. 23 or section 27 and as such appealable, the order made by the Appellate Assistant Commissioner declining to entertain the appeal was not an order under any of the sub sections of a. 31 and no appeal lay therefrom to the Appellate Tribunal under section 33 (1) and there could be no order of the Appellate Tribunal under section 34 (1). The order of the Appellate Tribunal correcting the order of the Income tax Officer and directing that the sum of Rs. 13,541 should not be included cannot be regarded in any event as an order under section 33 (4) so as to attract the operation of section 66 (1) or (2).

According to Rule 13 framed under Madhya Pradesh Municipalities Act, 1961, a candidate for election to the Municipal Council shall deliver to the supervising officer a nomination paper completed in Form IV and the relevant column in Form IV required the candidate to mention the "name and number of the Ward". Further, sub rule (IV) of Rule 13 provided that the 'supervising officers shall not reject any nomination paper on the ground of any defect which is not of substantial character High Court in a writ petition set aside the elections of 6 persons to the 'Municipal Council on the ground that they only mentioned the question whether the number of the wards but not their names. On non mentioning the names of the wards in teh nomination paper was a defect of a substantial character, HELD . : The nomination papers of the returned candidates were rightly accepted by th` Returning Officer as they substantially complied with the Rule. The particulars in question were required to identify the constituency in which a candidate was desirous of seeking election. That purpose was served when either the number and the ward, or its name was given unless them were, more than on a ward having the same name the identification of the constituency was complete. The name of the ward .was merely an additional piece of evidence to identify the constitute Once the number of the ward was mentioned there was no difficulty for the Returning Officer to find out in which constituency tin candidates wanted to seek election. [61D] Rangila Chowdhury vs Dultu Sen & Ors. ; and Rain Awadesh Singh vs Smt. Sumitra Devi & Ors., A.I.R. , referred to.

The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd., , referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ; , referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors., , distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.

The appellant instituted a suit for the recovery of money against the respondents in a Court in Gwalior State in May 1947. The respondents who were residents in U. P. did not appear before the court and in November 1948 the Gwalior Court passed an ex partc decree. On September 14, 1951, the Gwalior Court transferred the decree for execution to Allahabad, and on October 16, 1951, the appellant filed an application for execution of the decree before the Allahabad Court. The respondents contended that the decree being a decree of a Foreign Court to whose jurisdiction they had not submitted was a nullity and the execution application in respect thereof was not maintainable. Held, that the decree was not executable at Allahabad. Per Kapur, Ayyangar and Mudholkar, JJ.The decree of the Court in Gwalior State sought to be executed was a foreign decree which not change its nationality inspite of subsequent constitutional changes or amendments in the Code of Civil Procedure. On the day on which it passed the decree the Gwalior Court was a foreign Court within the meaning of section 2 (5) of the Code. None of the conditions necessary to give its judgment extra territorial validity existed (i) the respondents were not the subjects of Gwalior; (ii) they were not residents in Gwalior at the time the suit was filed, (iii) they were not temporarily present in gwalior when the process was served upon them, (iv) they did not select the forum which passed the decree against them, (v) they did not voluntarily appear before the court, and (vi) they had not contracted to submit to the jurisdiction of the 579 by the Indian Code, was a different court from that which passed the decree under the Local Code, and was not the court. which passed the decree within the meaning of section 39. Sections 37 to 42 of the Code deal with execution of decree., passed by the courts governed by the Indian Code. The decree could not be executed under the provisions of section 43 of the Code at any time. After its adaptation in June 1950, section 43 applied to "a decree passed by a Civil Court in a Part B State". There were no Part B States at the time when the decree was passed and these words could not be read as "a decree passed by a civil court in what became a Part B State". Nor could the decree be executed under section 44 as that section was also inapplicable to this decree. Article 261 (3) which provides that the final judgments or orders of Civil Courts in any part of the territory of India shall be capable of execution anywhere within that territory is inapplicable to the decree of the Gwalior court as the, provision is prospective and not retrospective. Per Sarkar and Das Gupta, JJ. Even in the decree passed by Gwalior Court was not a foreign decree the Allahabad Court had no power to execute it either under section 38 or under sections 43 or 44 of the Code of Civil Procedure. Section 38 provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. The Allahabad Court was not the court which passed the decree. Section 39 empowers the court which passed the decree to transfer it for execution to another court. The word "court" in the phrase "court which passed the decree" in section 39 contemplates only courts governed by the Indian Code of Civil Procedure. The Gwalior ,.Court which was governed by the Gwalior Code when it passed the decree had a distinct identity from the court at Gwalior after it came to be governed by the Indian Code. The Court which transferred the decree was accordingly not the court which passed the decree and the order of transfer was not a valid order. Section 43 of the Code provided for the execution of decrees passed by the Civil Courts in places where the Indian Code did not extend. The decree of the Gwalior Court did not fall within this section as it stood before the Constitution. A, After the adaptation in 1950 the section applied to a decree passed "by a Civil Court in a Part B State". These words could not be read as "by a civil court in an Indian State which has later been included in a Part B State". The Gwalior Court which passed the decree was not a Civil Court in a Part B State. 'Section 44 was equally inapplicable to the decree,. The section after adaptation in 1950 580 applied only to decrees of revenue courts. Before the adap tation it could apply only if there was a notification issued by the U. P. Government but no such notification was issued.

The respondents brought a suit for a mandatory injunction directing the removal of certain masonry structure on suit site and for a permanent injunction restraining the appellants from encroaching upon the suit property and from causing obstruction to the right of way of the residents of the village. They claimed that the suit property formed part of a public street and the appellants had no right to encroach upon it. The appellants claimed the suit property as absolute owners and as such, they were entitled to use it in any manner they pleased. The trial. Court decreed the suit. On appeal, the learned Subordinate Judge set aside the decree. On challenge of this decree by the respondents in second appeal before the High Court, the learned single Judge passed a decree in their favour. All that the learned Judge stated in his judgment was that "after a careful consideration of all the issues that arise for decision in this second appeal, I am of the opinion that the best form in which a decree could be given to the plaintiffs is in the following terms" and then he proceeded to set out the terms of his decree. On appeal by Special Leave the appellants contended that the method adopted by the learned Judge in disposing of the second appeal before him clearly shows that the judgment delivered by him cannot be sustained. The respondents, raised a preliminary objection that since the appellants did not avail themselves of the remedy available to them under the Letters Patent of the High Court either the special Leave granted by this Court should be revoked, or the appeal should be dismissed. Held: It would not be possible to lay down an unqualified rule that special leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case special leave has been granted, it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this Court under article 136, it is not possible and, indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this Court under article 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case. 50 Raruha Singh vs Achal, A.I.R. 1961, S.C. 1097, referred to. In the present case, the learned Judge passed an order which reads more like an award made by an arbitrator who, by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by the High Court in dealing with second appeals, it must obviously be corrected and the High Court must be asked to deal with the matter in a normal way in accordance with law. Therefore, the decree passed in second appeal, must be set aside on the ground that the judgment delivered by the learned Judge did not satisfy the basic and legitimate requirements of a judgment under the Code of Civil Procedure.

Appeal No. 2 of 1958. Appeal by special leave from the judgment and decree dated December 18, 1953, of the Madras High Court in Second Appeal No. 24 of 1949. K. Bhimasankaram and T. V. R. Tatachari, for the appellant. K. R. Choudhri, for respondents Nos. 1 and 2. 1961. April 10. The Judgment of the Court was delivered by MUDHOLKAR, J. This is an appeal by special leave from the judgment of the Madras High Court in a second appeal reversing the decrees of the two courts below. The plaintiff who is the appellant before us is the owner of survey No. 159 of the village Vemulavada while defendants 1 and 2 are owners of survey No. 158 lying to the north of survey No. 159 and adjoining. The defendant No. 3 is the owner of a field lying to the north of survey No. 158. To the south. of survey No. 159 is survey No. 160 belonging to the brother of the plaintiff. Immediately beyond this field and to the south are a "parallel drain", into which flow the waters of the Vakada drain, and Tulyabhaga drain both running west to east. It would appear that the parallel drain is an artificial drain while the Tulyabhaga is a natural drain. The parallel drain end,% abruptly at the eastern end of survey No. 150 at a distance of about two furlongs or so to the east of survey No. 160. According to the plaintiff rain water falling on survey nos. 160 and 159 flows in the northern direction over survey No. 158 and then enters into a drain shown in the map and indicated by the letters EE. In normal times the water in this drain flows towards the south and empties itself in the Tulyabhaga drain. 838 Sometime before the institution of the suit the defendants 1 and 2 constructed a bund running approximately east west on their own land. Its height, according to the Commissioner, varies between 3 and 8 and its width is about 16 '. Its length is reported by the Commissioner to be 1580. Apparently the bund is not a continuous one and there are a few gaps in it. About 5 to the south of the bund the defen dants had dug several trenches 15 ' in width and between 2 ' and 4 ' in depth. These trenches run along a foot path which separates the fields of the parties. The plaintiff 's grievance is that as a result of what the defendants 1 and 2 have done flood water flowing from his field in the northerly direction cannot find an outlet and stagnates on his land thus doing damage to his crops. Further, according to him as a result of the digging of the pits the level of his land adjoining the footpath is gradually decreasing with the result that the top soil of his field is being washed away. He, therefore, sought a mandatory injunction directing the defendants to fill up the trenches and demolish the bunds raised by them. The plaintiff claims the right of drainage of all water falling on or invading his land including flood water on the basis of immemorial user. The defence of the first two defendants was that the land actually slopes from north to south, that rain water and flood water naturally flow from the north to the south and that the plaintiff 's grievance is wholly imaginary. They deny the existence of immemorial user upon which the plaintiff rested his case. They admitted that flood waters do stagnate on the plaintiff 's land. This, according to them, was a result of the closing of some vents in the Vakada drain by the ryots of that village as a result of which the water collected in that drain during heavy rains cannot find its natural outlet and floods the lands of a number of people including the plaintiff 'section The bund erected by the defendants was, according to them to protect their lands from being inundated by the flood waters of the Vakada drain and that it was open to the plaintiff to do likewise by constructing dams at appropriate places 839 in his field and thus keep back the flood waters of the Vakada drain. Both the courts below arrived at the following findings of fact: (1) The land dips in the northerly direction. (2) That a number of fields including fields nos. 158, 159 and 160 lie in a sort of a basin with elevations along the eastern and western boundaries into which drainage and rain water from all sides tends to accumulate. (3) Ordinarily the surplus water from lands adjacent to the basin as well as rain water falling on the land in the basin is drained off from north and then finds its way in the drainage channel EE which runs north south and drains it into the Tulyabhaga drain. (4) Whenever due to heavy rain Tulyabhaga drain is in spate the flood water which collects in the basin cannot flow through the channel EE and flows in the northerly direction towards another channel called Kongodu channel and that this is what has been happening from time immemorial. (5) Whenever there is heavy rain the Vakada drain swells up and water therefrom floods survey Nos. 153 to 160. (6) That this has, been happening since time immemorial and that the defendant 's contention that this is because of something done in recent times is not correct. (7) That the inundation of the appellant 's land in the further flow of water northwards is not unusual, abnormal or occasional due to extraordinary floods but is an event which occurs every year in the usual course of nature. The High Court, however, came to the conclusion that the flooding of fields Nos. 153 to 160 because of the swelling of the Vakada drain is not something which has been happening from time immemorial but only subsequent to the year 1924, that the flooding of these lands was not a usual and natural phenomenon but something unusual and that water being a common enemy of all, the defendants 1 and 2 were within 840 their rights in constructing the bunds and digging trenches. According to the High Court the plaintiff had no right to prevent the defendants from taking the steps that they are taking and that a custom to allow flood water to flow over the neighbour 's land has not been so far established. We may mention here that the High Court had actually called for certain additional findings from the appellate court and one of the questions raised was whether there was an immemorial user as contended by the plaintiff to let out Vakada drainage water beyond certain points. In coming to the conclusion that the plaintiff has not been able to establish immemorial user in respect of the right claimed by him of draining of flood waters from his field on to the defendants the High Court has ignored the clear finding of the lower appellate court on this point. We find that there is no justification for the course adopted by the High Court. In para 17 of its judgment it has observed as follows: "It is well established on the evidence that from time immemorial flood water, as well as the surplus water, and the water from Vakada and Vemulavada, all collect and flow northwards through the cradle or basin in which the suit lands are situate, when the level of the water in Tulyabbaga is such as not to admit the flow of such water into it. It has been customary from time immemorial for the said water, under such circumstances, to go northwards from the plaintiff 's fields onwards over the defendants ' fields, and the further fields beyond". After remand the lower appellate court reiterated its conclusion and observed as follows in para 14 of its findings: "On the evidence on record and for the reasons I have given above I am of opinion that the oral evidence either way is inadequate, but on such little, evidence as available and on the probabilities of the case and relying upon the evidence of P. W. 4 and the clear indication of the existence of local drain Exhibit P 4, I would find that the Vakada drain 841 water should have been getting into parallel drain and through EE and F into Tulyabhaga drain for a considerably long period of time, at least from somewhere about the year 1920". Earlier in its order the lower appellate court has observed: "In my opinion the parallel drain should have existed at least from the year 1924, if not many years before that". It would thus be clear that even in the revised finding the appellate court has not been able to fix the precise year of commencement of the phenomenon. It would, therefore, follow that upon the evidence available in this case the proper inference to be drawn would be that this phenomenon has been known from time immemorial. A phenomenon is said to be happening from time immemorial when the date of its commencement is not within the memory of man or the date of its commencement is shrouded in the mists of antiquity. No doubt the lower appellate court has referred to the years 1920 and 1924 in its finding but it has not said that the phenomenon was observed for, the first time in 1924 or even in 1920 It has made it quite clear that the phenomenon was known to be happening in these years and that it must have been happening for many years prior to that. The basis of the plaintiff 's claim is not the natural right of the owner of higher land to drain off water falling on his land on to lower lands but the basis is that this right was being exercised with respect to the land of the defendants 1 and 2 from time immemorial. The finding of fact of the lower appellate court being in his favour on this point his suit must succeed. The High Court, following certain English decisions, came to the conclusion that water being the common enemy, every owner of land had a right to protect himself against it and in particular to protect himself from the ravages of such unusual phenomenon as floods. Some of the cases upon which the High Court. has relied deal with the rights of riparian owners and are thus not strictly appropriate. 106 842 The High Court seems to be of the opinion that the floods, as a result of which the plaintiff and the defendants suffer damage, are an unusual phenomenon. Here again, the High Court has gone wrong because the lower appellate court has found that these floods were a usual occurrence. Where a right is based upon the illustration (1) to section 7 of the (5 of 1882), the owner of higher land can pass even flood water received by him on to the lower land, at any rate where the flood is a usual or a periodic occurrence in the locality. The High Court has quoted a passage from Coulson and Forbes on Waters and Land Drainage (1) and a passage from the judgment in Nield vs London & North Western Railway (2) in support of its conclusions. In the passage in Coulson & Forbes it is stated that the owner of land must not take active steps to turn the flood water on to his neighbor 's property. Here, the dam erected by the defendants 1 and 2 stems flood waters going from plaintiffs land down to the defendant 's land and so the passage does not support the conclusion of the High Court. The decision in Nield 's case (2) is further based on the "common enemy" doctrine. In that case also there are certain observations which would militate against the conclusion of the High Court For instance: "where, indeed, there is a natural outlet for natural water, no one has a right for his own purposes to diminish it, and if he does so he is, with some qualification perhaps, liable to any one who is injured by his act, no matter where the water which does the mischief came into the water course. " Of course, the court in that case was dealing with water flowing along a natural water course. But the point is whether a person has a right to create ail impediment in the flow of water along its natural direction. Now the water on a higher ground must by operation of the force of gravity flow on to lower ground. Where the owner of the lower ground by creating an embankment impedes the natural flow of water he would be obstructing the natural outlet for that water. It makes little difference that the water (1) 6th Ed., p. 191. (2) (1874) L.R. TO Ex 4. 843 happens to be not merely rain water but flood water provided the flood is of the kind to which the higher land is subjected periodically. In England the early extension of the common drains all over the country under the supervision of the Commissioners of Sewers has rendered a discussion on the rights of flow of surface water needless and, therefore, there are no modern decisions upon the question. But old precedents show that the common law rule appears to be the same as that under civil law. In a case arising in Guernsey (1) the Privy Council has applied the rule of civil law to that island. That this is adopted by the common law would appear from the decision in Nelson vs Walker (2). The rule of civil law according to Domat is quoted thus at p. 2586 of Waters and Water Rights, Vol. III, by Farnham: "If waters have their course regulated from one ground to another, whether it be the nature of the place, or by some regulation, or by a title, or by an in ancient possession, the proprietors of the said grounds cannot innovate anything as to the ancient course of the water. Thus, he who has the upper grounds cannot change the course of the waters, either by turning it some other way, or rendering it more rapid, or making any other change in it to the prejudice of the owner of the lower grounds. . . " The learned author, after a discussion of old English cases on the point, has stated that the common law regarded the flow of rain water along natural courses as one of its doctrines and that there is no general right thereunder to fight surface water as a common enemy. The author has then observed: "All rightful acts with regard to it are confined within very narrow limits which have not yet been fully defined. And to state generally that such water is a common enemy, or that there is a right to fight it at common law, cannot be otherwise than misleading". (p. 2590). After discussing a number of precedents from the (1) Gibbons vs Lenfestey A.K.I.R. (2) ; 844 American State Courts he has pointed out that the common enemy doctrine is of very recent origin he has observed at p. 2591: "That surface water is not a common enemy, and that there is no right to fight it according to the pleasure of the landowner, clearly appear from the principles which have already been stated. " We must, therefore, distinguish between cases pertaining to riparian lands and cases like the present. But as pointed out in Niela 's case (1) the only right which a riparian owner may have is to protect himself against extraordinary floods. But even then Jae would not be entitled to impede the flow of the stream &long its natural course (2). We may repeat that the finding here is that, the floods from which the defendants 1 and 2 are seeking to protect themselves are not of an extraordinary type. In the circumstances, therefore, the bund erected by them and the trenches dug up by them must be held to constitute a wrongful act entitling the plaintiff to the reliefs claimed by him. For these reasons we allow the appeal, set aside the judgment of the High Court and restore that of the subordinate judge. The costs throughout will be borne by the defendants respondents. Appeal allowed. (1) (1874) L.R. 70 Ex 4. (2) Menzies vs Breadalbane, (1828) 3 Bhgh (N. section) 414; 4 E.R.I. 387.

The respondents 1 and 2 constructed a bund on their own land and dug trenches with a view to protect their lands from being inundated by the flood waters of the Vakada drain; as a result of that, the flood water flowing from appellant 's field in the Northerly direction could not find an outlet and stagnated on his land thus doing damage to his crops. The appellant based the right of drainage in the Northerly direction of all water falling on or invading his land including flood water on immemorial user, and not on the natural right of the owner of higher land to drain off water failing on his land on to lower lands. The Courts below found inter alia that the inundation of the appellant 's land was not unusual, abnormal or occasional but was. an event which occurred every year in the usual course of nature, and was a happening from time immemorial. The High Court came to the conclusion that the flooding of the fields was not an event recurring periodically from time immemorial but something unusual and that water being a common enemy of all, the defendants Nos. 1 and 2 were within their rights in constructing the bunds and digging the trenches. The point was whether a person had right to create an impediment in the flow of water along its natural direction. Held, that a 'phenomenon ' can be said to have been happening from time immemorial if the date when it first occurred was not within the memory of a man or was shrouded in the mist of antiquity. Where the court upon the evidence available was unable to fix the precise year of commencement of the phenomenon, the proper inference would be that the phenomenon had been known to occur from time immemorial. Held, further, that the only right the riparian owner may have, is to protect himself against extraordinary floods, but even then he would not be entitled to impede the flow of the stream along its natural course. When the owner of the lower ground by creating an embankment impedes the natural flow of water he would be obstructing the natural outlet for that water. It would make little difference that the water happened to be not merely rain water, but flood water provided the flood water was of a kind to which higher land was subjected perodically. 837 In the present case the bund erected and the trenches dug up by the respondents 1 and 2 causing stagnation of flood water constituted a wrongful act.

Nine persons including K instituted a suit for ejectment and recovery of rent against two defendants and obtained a decree, but on appeal, the District judge set aside the decree against defendant No. 2. The plaintiffs then filed a second appeal in the High Court on February 29, 1952, and while the appeal was pending K died on September 8, 1955. No application for bringing his legal representatives on the record was, however, made within the prescribed time, and the appeal abated so far as K was concerned. When the appeal of the appellants other than K came up for hearing on September 1, 1958, a preliminary objection was taken for the respondents that the entire appeal had abated on the ground that the interest of the surviving appellants and the deceased appellant were joint and indivisible and that in the event of the success of the appeal there would be two inconsistent and contradictory decrees. The appellants claimed that the appeal was maint. ainable on the grounds that the surviving appellants could have filed the appeal against the entire decree in view of the provisions of O. 41, r. 4, of the Code of Civil Procedure, that they were, therefore, competent to continue the appeal even after the death of K and the abatement of the appeal so far as he was concerned, and that the Court could have reversed or varied the whole decree in favour of all the original plaintiffs and could have granted relief with respect to the rights and interests of K as well. Held (1) that the provisions of r. 4 of 0. 41 of the Code of Civil Procedure were not applicable, since the second appeal in the High Court was not filed by anyone or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and the surviving appel 550 lants could not be said to have filed the appeal as representing K. (2) that an appellate court had no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. 41, r. 4, of the Code of Civil Procedure, when the decree proceeded on a ground comm. on to all the plaintiffs or defendants, if all the plaintiffs or the defendants appealed from the decree and any of them died and the appeal abated so far as he was concerned under O. 22, r. 3. Ramphal Sahu vs Babu Satdeo Jha, I.L.R. 19 Pat. 870; Amin Chand vs Baldeo Sahai Ganga Sahai, I.L.R. ; Baij Nath vs Ram Bharose, I.L.R. 1953 (2) All. 434; Nanak vs Ahmad Ali, A.I.R. 1946 Lah. 399; Pyarelal vs Sikhar, Chand, I.L.R. 1957 M.P. 21; Raghu Sutar vs Narusingha Nath, A.I.R. 1959 Orissa 148 ; Venkata Ran Rao vs Narayana, A. I.R. and Sonahar Ali vs Mukbul Ali, A.I.R. 1956 Assam 164, approved. Shripad Balwant vs Nagu Kusheba, I.L.R. ; Satula Bhattachariya vs Asiruddin Shaikh, I.L.R. and Somasundaram Chettiar vs Vaithilinga Mudaliar, I.L.R. , disapproved. (3) that the provisions of O. 41, r. 33 were 'not applicable since the appeal by the surviving appellants was not competent in the circumstances of the case. Mohomed KhaleeJ Shirazi & Sons vs Lee Tanneries 53 I.A. 84, relied on.

The respondent was appointed as a temporary clerk in an engineering division of the Government. The attempt of another clerk to impersonate and appear for him in a depart mental examination was detected. The Executive Engineer obtained explanations from both the clerks and reported the matter to the Superintending Engineer, who brought the matter to the notice of the ChiefEngineer. The Chief Engi neer wrote to the Superintending Engineer to award suitable punishment. The Superintending Engineer passed the order that the respondent a "temporary clerk is hereby served with one month 's notice to the effect that his services shall not be required after one month from the date of receipt of this notice. " The respondent filed a suit challenging the order on the ground that the termination was one passed by way of punishment and therefore attracted Art 311 of the constitution;. and since the provisions of the Article had not been complied had not been complied with the order was void. The Trial Court and the First Appellate Court dismissed the suit. But the High Court went,through the official correspondence preceding the passing of the impugned order, and observing that a close scrutiny of the facts on record showed that the order was passed by way of punishment on the basis of the enquiry proceeding and as a result of the recommendation by the Executive Engineer followed by the direction issued by Chief Engineer, allowed the second appeal. Allowing the appeal to this Court, HELD :(1) It is no longer open to any one to urge that the constitutional position in regard to cases of the present nature is not clear. An examination of the deci sions of this Court shows that there is no real conflict in their ratio decidendi. Even if there is a conflict, the proper course for a High Court is to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of this Court. This practice is followed by those Court itself and has hardened into a rule of law. [475B C] Union of India & Anr. K.S. Subramanian; , , followed. State of U.P. & Ors vs Sughar Singh [1974] 2 .S.C.R. 335: ; , The State of Punjab vs P.S. Cheema A.I.R. 1975 S.C. 1096, Satish Chandra Anand vs The Union of India ; , Shyam Lal vs State of U.P. ; , Parshotam Lal Dhingra vs Union of India ; , Gopi Kishore Prasad vs Union of India AIR. , The State of Orissa & ,Anr. vs Ram Narayan Das ; , Madan Gopal vs State of Punjab [1963] 3 S.C.R. 716, Rajendra Chandra Banerjee vs Union of India ; , Champakal Chimanlal Shah vs The Union of. India , Jagdish Mitter vs Union of India A.I.R. 1964 S.C. 449, State of Punjab & Anr. vs Shri Sukh Raj Bahadur ; , Union Of India 463 & Ors. R.S. Dhaba , State of Bihar & Ors. vs Shiva Bhikshuk Mishra R.S. Sial vs The State of U.P. & Ors. , Shamsher Singh & Anr. vs State of Punjab ; and The Regional Manager & Anr. vs Pawan Kumar Dubey [1976] 3 S.C.R. 540 referred to. (2) Before it is held that an order terminating the services of a Government servant amounts to punishment the Court must hold that either of the two tests,namely, (a) that the servant had a right to the post or (b) that he had been visited with evil consequences such as forfeiture of pay etc., is satisfied. Therefore, an order terminating the services of a temporary servant or probationer under the Rules of employment and without anything more will not attract article 311. Where a departmental enquiry is contem plated but an enquiry is not in fact proceeded with, article 311 will not be attracted unless it can be shown that the order, though. unexceptionable in form, is made following a report based on misconduct. Even though misconduct, negli gence, inefficiency or other disqualification may be the motive for the order of termination, if a right exists under the contract or the rules to terminate his services, then article 311(2) is not attracted unless the misconduct or negli gence is the very foundation of the order. Where there are no express words in the impugned order itself ' which throw a stigma on the Government servant, the Court would not delve into secretariat files to discover whether some kind of stigma could be inferred on such research. [469 A B; 473 C; 471 H; 475 F] Parshotam Lal Dhingra vs Union of India [1958] S.C.R. 828, R.S. Sial vs The State of U.P. & Ors. [1974] 3 S.C.R. 754, Shamsher Singh & Ant. vs State of Punjab ; and 1. N. Saksena vs State of Madhya Pradesh ; followed. (3) The respondent was a temporary hand and had no right to the post. Under the contract of service and the service rules applicable to him the State had the right to terminate his services by giving him one month 's notice. The order ex facie is an order of termination of service sim pliciter. It does not cast any stigma on the respondent nor does it visit him with evil consequences, nor is it founded on misconduct. Therefore, the respondent could not invite the Court to go into the motive behind the order and claim the protection of article 311(2) of the Constitution. [475 D E] (4) The High Court failed to appreciate the true legal .and constitutional position and upset the concurrent findings of fact arrived at by the Courts below, ignoring the well settled principle of law that a second appeal cannot be entertained on the ground of erroneous findings of fact, however, gross the error might seem to be. [475 G H] Paras Nath Thakur vs Smt. Mohani Das & Ors. [1960] 1 S.C.R. 271. Sri Ramanuja Jeer & Ors. vs Sri. Ranga Ramanuja Jeer & Anr. ; , P. Ramachandra Ayyar vs Ramalingam ; and Madamanchi Ramappa & . Anr. vs Muthaluru Bojappa ; , referred to.

The petitioners in these three writ petitions challenged the operative provisions of the Orissa Private Lands of Rulers (Assessment of Rent) Act, 1958 and the, Rules framed thereunder. These petitioners possess 302 private lands in the State of Orissa, which before the impugned Act were not subjected to the payment of rent, but which were assessed by the Revenue Officers in conformity with the Rules framed under the Act. The petitioners claims a writ in the nature of certiorari quashing the said orders of assessment. The Act was passed by the Orissa Legislature because it was thought expedient to provide for assessment of rent with respert to the private lands of Rulers in the State of Orissa. The main object of the Act is to authorise the levy of rent in respect of the private lands of persons included in the definition of the word "Ruler" prescribed by section 2(h) of the Act. Section 2(h) defines a "Ruler" as meaning the Ruler of a merged territory in the State of Orissa and includes his relatives and dependants. The petitioners attacked the pro visions of the Act mainly on the ground that they contravened article 14 of the Constitution. Held:(i) that section 6 of the Act does not contravene article 14 of the Constitution for the reason that fair and equitable tests have been laid down under section 6 of the Act for determining the rent which should be assessed in respect of the private lands of the Rulers. In the present case the legislature had prescribed the method of determining the rent payable on the private lands; and the relevant factors specified by section 6 appear to be just and substantially similar to the considerations which are generally taken into account at the time of survey settlement for determining the proper revenue assessment on ryotwari lands. The problem posed by the requirement to levy assessment on these private lands had to be dealt with by the legislature on an ad hoc basis. The settlement of rent and assessment introduced by the Act had been made applicable to these lands for the first time, and so, these lands could not be treated as comparable in every respect with the lands which were governed by the rates prescribed under the previous settlement. (ii)In considering the validity of a statute under article 14 the wellestablished principle is that the legislature can make class legislation, provided the classification on which it purports to be based is rational and has a reasonable nexus with the object intended to be achieved by it. If the party fails to show that the said classification is irrational, or has no nexus with the object intended to be achieved by the impugned Act, the initial presumption of constitutionality would help the State to urge that the failure of the party challenging the validity to rebut the initial presumption goes against his claim that the Act is invalid. In all cases where the material adduced before the court in matters relating to article 14 is unsatisfactory, the court may have to allow the State to lean on the initial presumption of constitutionality. (iii)There is no substance in the contention that the impugned Act is void because the definition of the word "Ruler" is inconsistent with Art, 366(22) of the Constitution. There is no doubt that the definition of the word "Ruler" prescribed by section 2(h) of the Act is wider than that prescribed by article 366(22) of the Constitution. 303 The definitions prescribed by article 366 are intended for the purpose of interpreting the articles in the Constitution itself, unless the context otherwise requires. The whole object of defining the word "Ruler" in the Act is to specify and describe the lands in respect of which the operative provisions of the Act would come into play. It is in that connection that the word "Ruler" has been broadly defined in an inclusive manner. (iv) The impugned Act is entirely outside the purview of article 31 of the Constitution as it has not purported either to deprive the Rulers of their property, or to acquire or requisition the said property. It is a simple measure authorising the levy of a tax in respect of agricultural lands. Pratap Kesari Deo vs The State of Orissa, A.I.R. 1961 Orissa 131, relied on.

The respondent State had acquired a large extent of land out of the appellant 's estate under the Kerala Land Acquisi tion Regulation, 1089 for river valley irrigation project and to establish an industrial project. The notification under Section 4(1) of the Regulation was published on Octo ber 31, 1961. This was followed by the declaration under Section 6(1) published on February 22, 1962. The Collector by his awards dated March 29, 1962 deter mined the market value under Section 22(1) of the Regulation at Re.O.04 per cent for certain lands, Re.O.12 per cent for certain other lands, and Rs.30 per cent for the wet lands as against the claim of Rs.40 and 50 per cent. Compensation for the trees at timber value was also given. The total compen sation fixed was Rs.4.84 lakhs. Dissatisfied therewith the appellant sought reference under Section 18 of the Regulation. They also claimed sepa rate value for fruit bearing trees on potential value and charges for severence and injurious effects on the remaining lands. In support of the claim they relied on exhibit P. 7 dated March 9, 1951 and exhibit P. 9 dated April 4, 1957 which worked out at Rs.52.50 and Rs.43.50 per cent respectively, and the acquisition forming subject matter of exhibit P. 10 pertaining to the land in the vicinity of the industrial project award ed at the rate of Rs.80 per cent for paddy lands and Rs.43 for dry land. The Government pleader stated before the civil court that exhibit P. 9 could form the basis for determining the market value. The court enhanced the market value @ Rs.40 50 per cent as claimed in addition to a sum of Rs.30 to 38 per cent. It awarded in all Rs.20.20 lakhs on all counts includ ing severence and injurious effects, 15 per cent solatium and also 6 per cent interest on additional compensation from the date of taking possession till date of payment. 363 The High Court found that the lands covered by exhibit P. 7 and exhibit P. 9 were paddy lands cultivated by irrigation sources and situated about four miles away from the acquired lands which were not irrigated and therefore held that these could not form the basis for determining market value. Similarly, it found exhibit P. 10 could not form a base to fix the market value. The High Court did not accept the evidence adduced by the State, which was rejected by the civil court as well. The statement made by the State Advocate General across the bar that the market value could be fixed at Rs. 18 per cent was also not taken into account. Consequently, it reversed the awards and decrees of the civil court. In these appeals by special leave it was contended for the appellant that having rejected the documents produced by the State the High Court ought to have relied upon the documents produced by the appellant as comparable sales and consumed the compensation awarded by the civil court, that exhibit P. 7, 9 and 10 furnished the best material, that the Government pleader had conceded before the trial court that exhibit P. 9 could form the basis for determining the market value, that they had incurred huge expenditure on civil works for protection of the rest of the estate from injuri ous effects for which they should be recompensated, that the potential value of the trees had to be taken into account in determining the market value, that they were entitled to compensation for severence due to submersion of the lands and that they were also entitled to payment of interest on solatium. Allowing the appeals partly, the Court, HELD: 1.1 When the Courts are called upon to fix the market value of the land in compulsory acquisition, the best evidence of the value of property is the sale of the ac quired land to which the claimant himself is a party, in its absence the sales of the neighbouring lands possessed of similar potentiality or fertility or other advantageous features made within a reasonable time of the date of noti fication in bona fide transactions on the hypothesis of a willing seller and a willing purchaser but not too anxious a buyer, dealing at arms length nor facade of sale or ficti tious and unreal transactions of speculative nature brought into existence in quick succession or otherwise to inflate the market value. This, however, does not preclude the Court from taking any other special circumstances into considera tion, the requirement being always to arrive at as nearly as possible an estimate of the market value judged by an objec tive standard. [181C 182D] 364 Gajapati Raju vs Revenue Divisional Officer, ; Special Land Acquisition Officer vs Adinarayana Setty, [1959] Suppl. 1 S.C.R. 404; Tribeni Devi & Ors. vs Collector of Ranchi; , ; Dollor Co. Madras vs Collector of Madras, ; Chandra Bansi Singh & Ors. etc vs State of Bihar & Ors. etc.; , ; Tahsildar, Land Acquisition Visakhapatnam vs P. Narasingh Rao & Ors., ; Collector, Raigarh vs Hari Singh Thakur & Anr., ; ; Administrator General of West Bengal vs Collector, Varanasi, ; ; Mehta Ravindrarai Ajitrai vs State of Gujarat, ; and Hindustan Oil Co. Ltd. vs Special Duty Collector (Land Acquisition), [1990] 1 S.C.R. 59, referred to. 1.2 The prices fetched for smaller plots cannot form basis for valuation of large tracts of land as the two are not comparable properties. Smaller plots always would have special features like the urgent need of the buyer, the advantageous situation, the like of the buyer etc. Similar ly, the land situated on the frontage have special advantage and the land situated in the interior undeveloped area will not have the value at par since the latter will have lower value then the former. So is the case with orchard land and agricultural land, the former being superior in quality as compared to the latter. If such sales are relied upon rea sonable reduction should be given. [182B C] Smt. Kaushalva Devi Bogra & Ors. vs The Land Acqui sition Officer, Aurangabad & Anr., ; ; Pridviraj vs State of Madhya Pradesh, ; ; Padma Uppal etc. vs State of Punjab & Ors., [1977] 1 S.C.R. 329; Chimanlal Hargovinddas vs Special Land Acquisition Officer, Poona & Anr., ; and Mantaben Manibhai vs Special Land Acquisition Officer, Baroda, A.I.R. , referred to. 1.3 In some cases for lack of comparable sales it may not be possible to adduce evidence of sale of the neighbour ing lands possessed of same or similar quality. So, insist ence on abduction of precise or scientific evidence would cause disadvantage to claimants in not getting the reasona ble and proper market value. The courts of facts should, therefore, keep before them always the even scales to adopt pragmatic approach without indulging in facts of imagination and assess the market value which is capable to fetch rea sonable compensation. They may in that process sometimes trench on the border of the guess work but mechanical as sessment should be eschewed. Misplaced sympathies or undue emphasis solely on the claimants ' right to compensation would 365 place heavy burden on the public exchequer to which everyone contributes by direct or indirect taxes. [185D G; 184F G] 1.4 In the instant case, the High Court found that exhibit P. 7 and P. 9 relied on by the civil court were not applica ble as the lands covered by them were paddy fields cultivat ed by irrigation sources and situated four miles away from the acquired unirrigated lands. Similarly, it also found that exhibit P. 10 could not be relied on. The High Court, therefore, could not be said to be unjustified in reversing the awards and decrees of the civil court. [186B D] 2. The amount awarded by the Land Acquisition Collector forms an offer. It is for the claimants to adduce relevant and material evidence to establish that the acquired lands were capable of fetching higher market value and the amount offered by the Land Acquisition Collector was inadequate and he proceeded on a wrong premise or principle. It is also the duty of the State to adduce evidence in rebuttal. [183B, G] Ezra vs Secretary of State for India, I.L.R. ; Raja Harish Chandra vs Dy. Land Acquisition Officer, ; Khorshed Shapoor Chenai, etc. vs As sistant Controller of Estate Duty; , ; Dr. G.H. Grant vs State of Bihar, ; ; Asstt. Development Officer vs Tayaballi, AIR ; Tah sildar, Land Acquisition, Visakhapatnam vs P. Narasingh Rao Secretary of State, AIR 1919 Cal. 1008; Naresh Chandra Bose vs State of West Bengal & Ors., AIR 1955 Cal. 398; Smt. Kusumgauri Ramray Munshi & Ors. vs The Special Land Acquisi tion Officer, Ahmedabad, ; Maharao Shri Madansinhji vs State of Gujarat, AIR 1969 Gujarat 270 and Chaturbhuj Panda & Ors. vs Collector, Raigarh, ; , referred to. 2.2 In the instant case the evidence produced by the appellant was found untrustworthy by the High Court. It also did not accept the evidence adduced by the State. [186E F] 3.1 The Appellate Court after rejecting the evidence may have to find whether there are any circumstantial or other material evidence on record to fix reasonable market value. The State Advocate General having stated across the bar in the High Court that the market value can be fixed at Rs.18 per cent, a concession made by him with all responsibility on behalf of the State, the High Court was not justified in 366 not taking into account this submission. [186G I87B] 3.2 Any concession made by the Government pleader in the trial court cannot bind the Government as it is always unsafe to rely on the wrong or erroneous or wanton conces sion made by the counsel appearing for the State unless it is in writing on instructions from the responsible officer. Otherwise it would place undue and needless heavy burden on the public exchequer. [187C] 3.3 The claimants are, therefore, entitled to the market value @ Rs.18 per cent to the lands other than those to which the Collector awarded @ Rs.30 per cent, as the refer ence court shall not reduce the market value to less than that awarded by the Collector as enjoined under the statute. From the very nature of compulsory acquisition, 15 per cent solatium as additional compensation was statutorily fixed. Therefore, determination of additional market value is unwarranted. [187E] 3.4 Section 25(3) of the Regulation contemplates payment of interest on solatium to recompensate the owner of the land for loss of user of the land from the date of taking possession tilldate of payment into court. The claimants are, therefore, entitled to interest on solatium. It is fixed at 6 per cent on the excess market value determined under the judgment including solatium from the date of taking possession till the date of payment. In other re spects judgment of the High Court is confirmed. [189G 190B] Union of India vs Shri Ram Mehar & Anr., [1973] 2 S.C.R. 720, referred to. 4. The Commissioner who collected the evidence in re spect of the injurious effects on the remaining lands of the claimants admitted in the cross examination that the appel lant did not expend any money on civil works. Though from the date of the acquisition till the date of evidence more than six years had passed by the appellant had not produced any material or account books of the estate to establish that they have expended any money in this regard. Both the engineers examined on behalf of the State and also appel lant 's witnesses admitted that the road passing through the lands was being used by the appellant to carry its forest produce etc. Though during rainy season that too for a short period, at some places the water gets stagnated on the roads at lower levels but that stand no impediment for the car riage of the goods. This phenomena was prevalent even before acquisition. The value of the land of the appellant had not been injuriously effected due to acquisition. No 367 damage due to severence was caused. Under these circum stances, the appellant was not entitled to compensation in this regard. [187F 188D] 5. The Sub Judge appears to be too anxious to award whatever is asked for on mechanical appreciation without subjecting the evidence to legal and critical scrutiny and analysis. In such a case, even if the assessment of valua tion is modified or affirmed in an appeal as apart of the judicial process, the conduct of the judicial officer, drawable from an overall picture of the matter would yet be available to be looked into. In appropriate cases it may be opened to draw inferences even from judicial acts of the misconduct. The person concerned shall not, therefore, camouflage the official act to a hidden conduct in the function of fixing arbitrary or unreasonable compensation to the acquired land. V.R. Katarki vs State of Karnataka & Ors., Civil Appeal No. 4392 of 1986 decided on March 22, 1990, referred to.

M who had gone to Pakistan in 1947, sold his property in the State of Madras to the appellant on August II, 1949. At that time there was no legislation with respect to evacuee property in Madras. On August 23, 1949, the Administration of Evacuee Property (Chief Commissioners Provinces) Ordinance, 1949 (XII of 1949), was extended to Madras. The appellant made an application for the confirmation of the sale. Subsequently, M was declared an evacuee and the property as evacuee property. It was found that M had entered into the transaction with the object of evading the evacuee law which it was apprehended, would be extended to Madras. Consequently, confirmation of the sale was refused under section 40(4)(a) of the Administration of Evacuaee 449 Property Act, 950, on the ground that the transaction had not been entered into in good faith. The appellant contended that there was no lack of good faith on the part of M as he could not be said to have acted dishonestly when at the time of the sale no evacuee law had been applied to Madras and that an intention to avoid a future law could not be said to be dishonest. Held, that the vendor had not entered into the transaction in " good faith " and the confirmation of the sale was rightly refused under section 40(4)(a) of the Act. Having regard to the aim and object of the emergency legislation a deliberate intention to defeat the apprehended evacuee law motivating a sale amounted to want of " good faith ". If the vendor sold his property not for any necessity or any other legitimate purpose but solely with the object of converting it into cash and removing it to Pakistan, he intended to defeat the provisions of the evacuee law which he knew was to be extended to Madras soon and he acted dishonestly within the meaning of section 40(4)(a).

The appellants obtained a decree against the respondent in the court of Sub Judge, Bankura (West Bengal) on December 3, 1949. On March 28, 1950 they applied to the court which passed the decree to transfer the decree with a certificate of non satisfaction of the court at Morgan in the then State of Madhya Bharat. It was ordered accordingly. The Judgment debtors resisted the execute on the ground that the court had no jurisdiction to execute the same as the decree was that of a foreign court and that the same had been passed ex parte. The court accepted that contention and dismissed the execution petition on December 29, 1950. On April , 1951 the Code of Civil Procedure (Amendment) Act 2 of 1951 came into force. By this Act the Code was extended to the former State of Madhya Bharat as well as various other places. Meanwhile the appellants appealed against the order of the Additional District Judge Morena dismissing the execution petition to the High Court of Madhya pradesh. The appeal was allowed. In further appeal this Court 'restored the order of the Addl. District Judge, Morena. Thereafter on February 15, 1963 the appellants filed another execution case before the Bankura Court praying for the transfer of the decree to the Molrena Court for execution. The Bankura Court again ordered the transfer of the decree of the Morena Court. The judgment debtors resisted execute on the flowing grounds : (1) that it was barred by yes judicature in view of the aforesaid decision of this Court; (2) that it was barred by section 48 of the Code of Civil Procedure; (3) that it was barred by limitation and (4) that it was not executable because it was the decree of a foreign court. The Addl. District Judge rejected the objections. The High Court in appeal agreed with the executing court that the execution petition was neiber barred by resjudicata nor was there any bar of limitation but it disagreed with that court and held that the decree was not executable as the court which passed the decree was a foreign court. The decree holders filed the present appeal by special leave. The questions which fell for consideration were : (i) whether the decree under execution was not executable by courts situate in the area comprised in the former State of Madhya Bharat; (ii) whether the decree was barred by section 48 of the Code. HELD:Per Sikri C.J., Mitter, Hyde and Bhargava JJ. (1) (a) On the date when the decree under execution was passed foreign court ' was 8 1 100 SupCII71 816 defined in section 2(5) of the Code as a court situate beyond the limits of British India which had no authority in British India and was not established or continued by the Central Government. After the amendment of the Code of Civil Procedure in 1951. 'foreign court ' under the Code means a court situate outside India and not established or continued by the authority of the Central Government. Whether we take the earlier definition or the present definition the Bankura Court could not be considered as a foreign court within the meaning of that expression in the Code. 'Foreign judgment ' is defined as the 'judgment of a foreign court '. Hence the decree under execution could not be considered as a foreign decree for the purpose of the Code. [820 D G] Accordingly the judgment debtors could not take advantage of the provision in section 13(b) of the Code under which the ex parte decree of a foreign court is not conclusive. Nor could they take advantage of section 13(d). They were served with notice of suit but did not choose to appear before the court. Hence, there was Po basis for the contention that any principle of natural justice has been contravened. Further section 13(d) was not applicable because the judgment in question was not a foreign judgment. [821 D] (b) Under Private International Law a decree passed by a foreign court to whose juri diction a judgment debtor had not submitted is an absolute nullity only if the local legislature had not conferred jurisdiction on the domestic courts over the foreigners either generally or in specified circumstances. Clause (c) of section 20 of the Code provides that subject to the limitations mentioned in the earlier sections of the Code a suit can be instituted in a court within the local limits of whose jurisdiction the cause of action wholly or in part, arises. This provision confers jurisdiction on a court in India over foreigners when the cause of action arises within its jurisdiction. There was not dispute in the present case that the cause of action for the suit which led up to the decree under execution arose within the jurisdict on of the Bankura Court. Hence, it must be held that the suit in question was properly instituted. Accordingly the decree in question was a valid decree though it might not have been executable at one stage in courts in the former Indian States [822 B F] Sardar Gurdyal Singh vs The Rajah of Faridkot, 21 I.A. 171, referred to. (c) A combined reading of sections 2(12), 38, 39 and 40 of the Code shows that a decree can be transferred for execution only to a court to which the Code apple . This is what was ruled by this Court in Hansraj Nathu Ram 's case. But by the date the transfer in the present case was made, the Code had been extended to the whole of India. It followed that the transfer of the decree in question which was not a foreign decree, to the Morena Court, was in accordance with the provisions of the Code. [823 B D] Hansraj Nathu Ram vs Lalii Raja & Sons of Bankura, , applied. Narsingh Rao Shitole vs Shri Shankar Saran & Ors., ; , distinguished. (d) Section 20(1)(b) of the Code of Civil Procedure Amendment Act, 1951 by which the Code was extended to Madhya Bharat and other areas undoubtedly protects the right acquired and privileges accrued under the law repealed by the amending Act. But even by straining the language of the provision it cannot be said that the non executabilitv of the decree within a particular territory can be considered a privilege [824 E F] 817 Nor is it a 'right accrued ' within the meaning of section 20(1) (b) of the Code of Civil Procedure (Amendment) Act, 1950. In the first peace in order to get the benefit of this provision the non executability of the decree must be a right, and secondly it must be a right that had accrued from the provisions of the repealed law. It Was difficult to consider the non executability of the decree in Madhya Bharat as a vested right of the judgment debtors. The non executability in question pertained to the jurisdiction of certain courts and not to the "rights of the judgment debtors. Further the relevant provision of the Code of Civil Proedue in force in Madhya Bharat did not confer the, right claimed by the judgment debtors. All that had happened in view of the extension of +he Code to the whole of India in 1951 was that the decrees which could have been executed only by courts in British India were made ' executable in the whole of India. The change made was one relating to procedure and jury diction. By the extension of the Code to Madhya Bharat, want of jurisdiction on the part of the Morena Court was remedied and that court was now competent to execute the decree [825 A E] Hamilton Gell vs White , Abbot vs Minister for Lands, and G. Ogden Industries Pvt. Ltd. vs Lucas, , applied. (ii)The execution was also not barred, by section 48 of the Cod . For considering the true impact of cl. (b) of sub section 2 of section 48 of the Code provisions of articles 181 and 182 of the Limitation Act, 1908 have also to be taken into consideration. These provisions clearly go to indicate that the period prescribed under section 48(1) of the Code is a period of limitation. This interpretation is strengthened by the subsequent history of the legislation. By the section 48 of the Code is deleted. It , place has not been taken by article 136 of the Limtation Act of 1963 The High Courts also are now unanimous that section 48 of tile (ode is controlled by the provisions of the Limitation Act, 1908. [828 A C] Kandaswami Pillai vs Kamappa Chetty, A I R, , Durg vs Poncham, I.L.R. [1939] All. 647, Sitaram vs Chunnilalsa, I.L.R. , Amarendra vs Manindra, A.I.R. '1955 Cal. 269, Krishna Chandra v Parovatamma, A.I.R. 1953 Orissa 13 and Ramgopal vs Sidram, A.I.R. 1943 Bom. 164 referred to. Per Jaganmohan Reddy, J. (Concurring) No question of 'a vested right or privilege arose to entitle the respondent to challenge execution proceedings in Morena Court. The decree granted by the Bankura Court was executable by the Courts governed by the same Code, by talk Court which passed it or by the Court to which it was transferred. One the Code was made applicable to the whole of India by Amendment Act 11 of 1951 the decree was no longer a foreign decree qua the Morena Court which was a court under the Code to which the Bankura Court could transfer the decree for execution. No doubt in ' Shitole 's case it was observed that section 13 of the Code creates substantive rights and not merely procedural and therefore defenses that were open to the resno dents were not taken away by any constitutional changes, but the ratio of the decision was that the Gwalior Court not being a court that passed the decree after the coming into force of Act 11 of 1951 the Allahabad Court could not execute it. The impediment did not exist now in that the Bankura Court bad transferred the decree to a court under the Code. the plea that section 48 Civil Procedure Code presents a bar of limitation was also not tenable. [831 F H] 818 Kishendas vs Indo Carnatic Bank Ltd. A.I.R. 1958 A.P. 407 Sardar Gurdayal Singh V. Raja of Firidkote, 21 I.A. 171, Rai Rajendra Sardar Maloji Narsingh Rao Shirole vs Shri Shankar Saran, ; and Hansaj Nathuram Y. Lalji Raja

The question for determination in this appeal, arising out of a suit filed by the appellant under section 5(3) of the Charitable and Religious Trusts, Act, 1920, was whether the ancient temple of Shri Balaji Venkatesh at Nasik and its Sansthan constituted a charitable and religious trust within the meaning of the Act. The deity was Swayambhu and revealed itself in a dream to one Ganapati Maharaj who, at its behest, brought the deity from the river Tambraparni and installed it in his house. Ganapati 's son Timmaya, who removed the deity to Nasik, took the idol to the courts of Rulers and acquired the properties in suit consisting of lands and cash. Timmaya 's eldest son obtained an extensive plot of land as a gift from the Peshwa and thereon built a vast temple with a Sabha Mandap which could accommodate no less than 600 persons and installed the deity in the first floor with a staircase leading straight to it. The Hindu public has been worshipping at the temple for more than 200 years and there was no evidence to show that they had ever been excluded from it and any gift had ever been refused. The ceremonies performed in the temple were appropriate to a public deity. It was admitted by the sons of Timmaya in Tahanama, executed by them in 1774, that the Inam villages were granted for the worship of the deity and the temple belonged to the Sansthan, none of them having any share in it. In the Tharav Yadi of 1800, the maintenance allowance provided by the said Tahanama for the different branches of the family was described as 'Vetan '. The Inam Commissioner, functioning under Act 11 of 1852, recorded the Inam villages as permanently held Debasthan inams at the instance of the then Sthanic and on the basis of original sanads filed by him, reversing the decision of the Assistant Inam Commissioner who had recorded them as personal inams. Those sanads were not filed in the suit. In 1931 the appellant published a history of the Sansthan wherein it was clearly stated that the Sansthan was not a private or family property but was the property of the deity, the members of the family being merely the managers. The deity was not made a party to the suit although representatives of the Hindu public were joined as 98 774 parties under section 1, r. 8 of the Code of Civil Procedure. The High Court, while it concurred with the trial judge in holding that the deity was a public deity and that its Sansthan constituted a public trust, was, however, inclined to hold that some of the properties might be personal properties of the appellant but refused to grant any such declaration on the ground that no effective decree could be passed against the deity in its absence, It was contended on behalf of the appellant in this court that the courts below had misconstrued the document and were wrong in drawing the inferences they did and that the burden of proof had been wrongly placed on the appellant to prove by positive evidence that the deity was a family deity and the properties his private properties. Held, that the courts below were right in coming to the conclusion they reached, and the appeal must fail. A mistaken inference drawn from documents is no less a finding of fact, if there is no misconstruction of the documents and no misconstruction of documents having been proved, the appellant could not succeed. An admission is the best evidence that an opposing party can rely upon, and, although it is not conclusive, is often decisive of the matter unless it can be successfully withdrawn or proved to be erroneous. The expression " burden of proof " means one of two things (1) that a party has to prove an allegation before it is entitled to a judgment in its favour, or (2) that the one or the other of the two contending parties has to introduce evidence on a contested issue. The question of onus is material only where the party on which it is placed would eventually lose if it failed to discharge the same. Where issues are, however, joined, evidence is led and such evidence can be weighed in order to determine the issues, the question of burden becomes academic. In the present case, if the onus lay on any party, it was clearly on the appellant to prove by cogent evidence that the admissions made by his predecessors in title and by him were either erroneous or unavailable and this he had failed to do. The earlier sanads, admittedly in his possession, not having been produced and those produced not being in any way inconsistent with the said admissions or the revenue records, no question of any misconstruction of documents could arise. Babu Bhagwan Din vs Gir Nar Saroon, (1939) L.R. 67 I.A. 1, held inapplicable. Srinivasa Chariar vs Evalappa Mudaliar, (1922) L.R. 49 I.A. 237, applied. The entries made in the Inam Register prepared under Act 11 of 1852, were entitled to great weight and although they could not displace actual and authentic evidence in an individual case, it was well settled that, in absence of such evidence, they must prevail, 775 Arunachalam Chetty vs Venkatachalapathi Guru Swamigal, (1919) L.R. 46 I.A. 204, referred to. Held, further, that the vastness of the temple, the mode of its construction, the long user by the public as of right, grant of land and cash by the Rulers, taken along with other relevant factors were consistent only with the public nature of the endowment. Narayanan vs Hindu Religious Endowments Board, A.I.R. 1938 Mad. 209, relied on. The absence of a dome or Kalas on the temple was not by itself a decisive factor as to its public character, nor was consecration imperative of a deity that was Swayambhu. Nor is the temporary movement of the idol from place to place inconsistent with its public character. Ram Soondur Thakoor vs Taruk Chunder Turkoruttum, (1873) 19 Weekly Reporter 28; Hari Raghunath vs Apantii Bhikajii, Bom. 466; Prematha Nath Mullick vs Pradyumna Kumar Mullick, (1925) L.R. 52 I.A. 245 and Venkatachala vs Sambasiva, A.I.R. (1927) Mad. 465; 52 M.L.J. 288, considered. The defect in the frame of such a suit resulting from the omission of the deity as a party to it, cannot be remedied by the subsequent addition of the representatives of the Hindu Public as parties to it, and no effective decree could be passed against the deity in such a suit.

Appeals Nos. 448 and 449 of 1959. Appeals by special leave from the judgment and order dated February 12, 1958, of the Patna High Court in Misc. Judicial Cases Nos. 679 and 680 of 1955. A. V. Viswanatha Sastri and Naunit Lal, for the appellant (In both the appeals). A. N. Kripal and D. Gupta, for the Respondent (In both the appeals). January 5. The Judgment of the Court was delivered by KAPUR, J. These appeals by the assessee are brought against two judgments and orders of the High Court of Judicature at Patna in Income tax references under section 66(2) of the Income Tax Act answering the questions in the negative and against the assessees. The questions were: (1). "Whether on the facts and circumstances of this case Rs. 72,963 12 0 was a revenue expenditure deductible under section 10(2)(iii) or under section 10(2)(xv) of the Indian Income Tax Act?" (2). "Whether on the facts and circumstances of this case Rs. 76,526 1 3 was a revenue expenditure deductible under section 10(2)(iii) or under section 10(2)(xv) of the Indian Income tax Act?" The facts of the appeals are these: The appellant was an employee of M/s. Karam Chand Thapar & Bros. and for each of the accounting years relating to the assessment years 1947 48 and 1948 49 his salary was Rs. 10,572. He also had an income of Rs. 500 from shares in certain joint stock companies. On December 20, 1945, he entered into a contract with 361 Bengal Nagpur Coal Company Ltd., for raising coal from Bhaggatdih Colliery, Jharia and actually started his business from January 1, 1946. Evidently he did not have the requisite funds for his business and therefore in order to finance it, he entered into an agreement with the Mohini Thapar Charitable Trust on February 25, 1946. The trust is a public charitable trust, which was created by Lala Karam Chand Thapar, who constituted himself as the Managing Trustee. The relevant terms of this agreement between the appellant and the trust were that the trust was to advance a sum upto Rs. 11 lacs, the contract was to be "carried in accordance of the policy" settled between the appellant and the trust; the trust could withdraw its money at any time and to stop further advances; the trust was not to be liable for any losses; the appellant was to send monthly returns to the trust and the seventh clause was "that in consideration of the trust having agreed to finance my said contract business up to Rs. 11/2 lacs I have agreed to pay to the trust interest on the amount from time to time owing to the trust in respect of the monies to be advanced as above at the rate of 6 p.c. per annum in addition to a sum equivalent to 11/16th of the net profits of this business of mine. " In pursuance of this agreement the appellant, besides interest, paid to the trust the sum of Rs. 72,963 for the first accounting year and Rs. 76,526 1 3 for the second accounting year corresponding to years of assessment 1947 48,1948 49 and claimed these amounts as allowable deductions under section 10(2)(iii) or under section 10(2)(xv) of the Income tax Act. The amount of interest has been allowed but the claim in regard to the other sums paid was disallowed by the Income tax Officer on the ground that the agreement was not genuine and bona fide and that it was not prompted by ordinary business considerations. The matter was taken in appeal to the Appellate Assistant Commissioner who upheld the order of the Income tax Officer. An appeal to the Income tax Appellate Tribunal was also dismissed and so was an application 46 362 for reference under section 66(1), but the High Court directed the Tribunal to state the case on the questions set out above. For the two assessment years the question was the same excepting for the amounts claimed as allowable deductions. In its order dated April 4, 1955, the Appellate Tribunal had found that the payments were not for the purpose of the business and that taking into account the nature of the accounts, the nature of the payments and the relationship between the parties, it could not be said that the amounts were wholly and exclusively laid out for the purpose of the business and therefore rejected the claim. In the statement of the case the Tribunal has said that the average amount which had been advanced by the trust to the appellant in the first year was Rs. 18,100 and the payments made to the trust in the two years were therefore a share of profits and not expenditure laid out wholly and exclusively for the purposes of the business. The High Court approached the question from the same angle. It was of the opinion that the question should be determined on principles of ordinary commercial trading and because the Managing Trustee was in a dominating position and only a small sum of money i.e., Rs. 18,100 on an average had been advanced, the payment of Rs. 72,963 in addition to interest was an absurdly large sum which with the interest paid work ed) out at about 400% interest. The High Court also took into consideration the fact that the appellant was an employee of Lala Karam Chand or his company. Put in their own words the High Court observed "having regard to the relationship between the parties and having examined the clauses of the agreement of the 25th February, 1946, between the assessee and the board of trustees I am of the opinion that the real legal position in this case is that there is a joint adventure between the parties, a quasi partnership which falls something short of partnership and that the arrangement between the parties was that the amount of profits should be ascertained and then they shall divide it up in certain specified proportions". 363 The payments, therefore, did not fall within section 10(2) (xv). The question was therefore answered in the negative and against the assessee. The appellant has come in appeal to this Court by special leave. As far as the record goes at the relevant time the appellant was a person of comparatively small means. No doubt he was getting a salary of Rs. 10,572 a year and had about Rs. 500 from his share holdings but beyond that he does not seem to have had any other means. There is nothing to show on the record that he had any security to offer or did offer for the money that he was borrowing. Thus the trust was lending monies to the extent of Rs. 11/2 lakhs without security and upon a venture which might or might not have been successful. The Tribunal and the High Court seem to have fallen into an error by taking a mean of the advances made by the Trust to the appellant during the first accounting year. The record shows that the advances were very considerable in the first year ranging from Rs. 12,000 in January 1946 to Rs. 1,86,000 in July of that year and in the following months of that year they ranged from Rs. 59,000 to Rs. 7,000. In the following years beginning from the end of 1946 to 1953 considerable sums of money had been advanced which ranged on an average from Rs. 1,97,000 in 1947 to Rs. 3,17,000 in 1953. In regard to 1947, the Tribunal has found that the average amount of loan was Rs. 1,20,317 but according to the figures supplied by the appellant in his petition for special leave to appeal to this Court, the average comes to Rs. 1,97,919. In any case very considerable sums of money had been advanced by the Trust and as we have said above to a person who was not a businessman, who neither gave nor is shown to have been able to give any security. The agreement between the appellant and the trust has to be considered in the context of those circumstances and if taking all the surrounding circumstances into consideration the trust found it necessary to have control over the working and over the finances and had offered stringent conditions it is not a matter which can be considered to be abnormal. 364 Another matter which was taken into consideration by the Tribunal was that the amounts claimed as deductible items were shown as a share of profits of the trust which had been debited in the appellant 's profit and loss appropriation account or in other words the appellant as per his accounts admitted that it was an appropriation of the profits to the trust. The Tribunal thus was of the opinion that the interest to be received by the Trust was 11/16 part of the profits of the appellant 's business and that the method of accounting clearly showed that the appellant was only parting with the share of profits. This, in our opinion, is an erroneous approach to the question. The case has to be decided according to the tenor of the document as it stands and the circumstances of the case. The genuineness of the document has not been challenged though an effort was made by the Revenue to so construe the document and so read the facts as to make both the amounts liable to tax in the hands of the appellant. As to what is a deductible expense has to be viewed in the circumstances of each case. In Commissioner of Income tax vs Chandulal Keshavlal (1) this Court observed that in deciding whether a payment of money is a deductible expenditure, one has to take into consideration the question of commercial expediency and the principles of ordinary commercial trading. If the payment or expenditure is incurred for the purpose of the trade of the assessee it does not matter that the payment may enure for the benefit of a third party. Another test laid down in that case was whether the transaction is properly entered into as a part of the assessee 's legitimate commercial undertaking in order to facilitate the carrying out of its business and it is immaterial that a third party also benefits thereby. Thus in cases like the present one, in order to justify the deduction the sum given up must be for reasons of commercial expediency. It may be voluntary but so long as it is incurred for the assessee 's benefit e.g. the carrying on of his business, the deduction would be claimable. In Commissioner of Income tax, (1) 365 Bombay vs Jaggannath Kissonlal (1) the assessee executed a promissory note jointly with another person in order to raise the money for himself and for the other. The other person became insolvent and the assessee had to. pay the whole amount and claimed that amount as an allowable deduction under section 10(2)(xv) and it was found that it was a practice in the Bombay market to borrow money on such promissory notes and there was an element of mutuality in the transaction. The loss sustained by the assessee was allowed as a deductible item on the basis that a commercial practice of financing the business by borrowing money on joint and several liability was established. In another case decided by this Court M/s. Haji Aziz & Abdul Shakoor Bros. vs The Commissioner of Income tax (2) it was held that the expenses which are permitted as deductible are such as are made for the purpose of carrying on the business i.e. to enable a person to carry on business and earn profits in that business and the disbursements must be such which are for the purpose of earning the profits of the business. See also Strong and Company of Romsey Ltd. vs Woodifield (3). These cases therefore show that if any amount is expended which is commercially expedient and is expended for the purpose of earning profits it is a deductible expenditure. In support of their opinion the High Court relied upon the cases hereinafter mentioned but in our opinion they do not apply to the facts and circumstances of this case. The first case referred to is Pondicherry Railway Company vs Commissioner of Income Tax, Madras (4). In that case the assessee company, incorporated in the United Kingdom, obtained a concession of constructing a railway in the territories of Pondicherry. The assessee company was to pay to the French Government 1/2 of its net profits. The French Government on its part gave land on which the railway was to be built free of charge and also agreed to pay a subsidy. The question for decision in that case was whether the monies paid by the (1) ; (3) ; (2) ; (4) [1931] L.R. 58 I.A. 239. 366 assessee company to the French Government i.e., of its net profits were allowable as a deduction under the provisions corresponding to section 10(2)(xv). Lord Macmillan observed at p. 251: "A payment out of profits and conditions on profits being earned cannot accurately be described as a payment made to earn profits. It assumes that profits have first come into existence. But profits on their coming into existence attract tax at that point, and the revenue is not concerned with the subsequent application of the profits. " But these observations have been later on explained in other cases to which reference will be made presently. In Union Cold Storage Co. Ltd. vs Adamson (1) the assessee leased lands and premises abroad reserving a rent of pound 9,60,000. It was also provided in the deed that if at the end of the financial year it was found that after providing for this rent the result of the company 's operations was insufficient to pay interest on charger, and debentures etc., the rent for the year was to be abated to the extent of the deficiency. In computing its profits the assessee company claimed the sums of rent paid in two respective years. They were held not payable out of the profits or. gains and were allowable deductions. At page 318 Rowlatt J. said that the sum which was to be paid by the company was a recompense in respect of possession and use of the premises abroad and the company had entered into some liabilities by way of payment for their premises and that payment was an outgoing of the business which was to be provided for and allowed before profits of the business could be ascertained. In the House of Lords Lord Macmillan distinguished the Pondicherry case,(1) by saying that in that case the ascertainment of profits preceded the coming into operation of the obligation to pay and when profits had been ascertained the obligation was to make over thereof to the French Government. Dealing with the passage above referred to Lord Macmillan said at p. 331: "I was dealing with a case in which the obligation was, first of all, to ascertain the profits in a (1) (2) (1931) L.R. 8 I.A. 239. 367 prescribed manner, after providing for all outlays incurred in earning them, and then to divide them. Here the question is whether or not a deduction for rent has to be made in ascertaining the profits, and, the question is not one of the distribution of profits at all." In Tata Hydro Electric Agencies Limited, Bombay vs The Commissioner of Income tax, Bombay Presidency (1) the Tata Power Co. entered into an agency agreement with Tatasons Ltd. agreeing to pay to Tatasons Ltd. a commission of 10% on the annual net profits of Tata Power Co., subject to a minimum whether any profits were made or not. Later on two persons D and S advanced funds to Tata Power Company on the condition that in addition to the interest payable to them by Tata Power Company they should each receive from Tatasons Ltd., 12 1.2% of the commission earned by Tatasons Ltd. Tatasons Ltd. assigned their entire right to the assessee company and the Tata Power Company entered into a new agency agreement with the assessee company and the assessee company received a commission and out of that paid 1/4 to D and section Relying on Pondicherry Railway case (2) the Bombay High Court held that that was not an allowable deduction as expenditure incurred solely for earning profits. On appeal the Privy Council held that Pondicherry case did not govern the case. The nature of the transaction was held to be this that the obligation to make the payments was undertaken by the assessee company in consideration of its acquisition of the right to property to earn profits i.e. of the right to conduct the business and not for the purpose of producing profits in the conduct of the business. Dealing with Pondicherry Railway case (2) Lord Macmillan said: "In the Pondicherry case the assessees were under obligation to make over a share of their profits to the French Government. Profits had first to be earned and ascertained before any sharing took place. Here the obligation of the appellants to pay (1) [1937] L. R. 64 I.A. 215. (2) (1931) L.R. 58 I.A. 239. 368 a quarter of the commission which they receive from the Tata Power Co. Ltd. to F. E. Dinshaw Ltd., and Richard. Tilden Smith 's administrators is quite independent of whether the appellants make any profits or not." and at page 225 Lord Macmillan said: "In short, the obligation to make these payments was undertaken by the appellants in consideration of their acquisition of the right and opportunity to earn profits, that is, of the right to conduct the business, and not for the purpose of producing profits in the conduct of the business. " At page 226 the Privy Council accepted the following test laid down by Lord President in Robert Addie & Sons ' Collieries, Ltd. vs Commissioners of Inland Revenue (1) where it is observed: "What is 'money wholly and exclusively laid out for the purposes of the trade ' is a question which must be determined upon the principles of ordinary commercial trading. It is necessary, accordingly, to attend to the true nature of the expenditure, and to ask oneself the question, Is it a part of the Com pany 's working expenses; is it expenditure laid out as part of the process of profit earning". In Commissioner of Income tax, Bombay Presidency vs Tata Sons Ltd. (2) the company received a commission on the basis of profits. The managed company was in urgent need of money and the assessee company found a financier a Mr. Dinshaw and an agreement was entered into with the managed company and Mr. Dinshaw by which the latter agreed to lend a crore of rupees on the condition that the assessee company assigned to him a share in the commission which the assessee company might receive from the managed company. That was held to be an agreement on the part of the assessee company to share their commission with Mr. Dinshaw and it was a part of the arrangement on which the assessee company obtained finance and therefore the payment to Mr. Dinshaw was an expenditure solely for the purpose of earning profits or gains and it was not of a capital nature. At (1) (2) 369 page 203 Beaumont C.J. said that the question whether the payment of a part of the commission to a third person can be regarded as expenditure incurred solely for the purpose of earning that commission is a question which must be answered on the facts of each case on a commercial basis. In The Indian Radio and Cable Communications Company Ltd. vs The Commissioner of Income tax, Bombay (1) it was observed that it was not universally true to say that a payment the making of which is conditional on profits being earned cannot properly be described as an expenditure incurred for the purpose of earning such profits. Lord Maugham in explaining the judgment in the Pondicherry Railway case (2) said at page 278: " To avoid misconception it is proper to say that in coming to this conclusion they have not taken the view that the case is governed by the decision in Pondicherry Railway Co. Ltd. vs Commissioner of Income tax, Madras, though that case no doubt shows light on the nature of the problem which has to be solved in the present case. It should perhaps be added that a sentence in the judgment in that case has been explained, if explanation was necessary, by Lord Macmillan in the subsequent case of W. H. E. Adamson vs Union Cold Storage Company. " As to when a deduction is claimable and when it is not, it was said at page 277 that if a company had made an apparent net profit and then had to pay to a director as a contractual recompense, the net profit would be the difference between the two but if there was a contract to pay a commission on the net profits of the year it must necessarily be held to mean as net profits before the deduction of the commission. In British Sugar Manufacturers Ltd. vs Harris (3) the assessee company agreed to pay two other companies a certain percentage of its annual profits after deduction of expenses and debenture interest in consideration of their giving to the assessee company the full benefit of their technical and financial knowledge (1) (2) [1931] L.R. 58 I.A. 239. (3) 47 370 and experience. Certain payments were made in pursuance of that agreement and it was held that payments under the agreement were permissible deductions in computing the assessee company 's profits. Dealing with the Pondicherry Railway case, (1) at page 548, the learned Master of the Rolls said: " It is to be observed that Lord Macmillan in that paragraph was quite clearly using the word I profit ' in one sense and one sense only; he was using it ' in the sense of the I real net profit ' to which Lord Maugham referred. That he was doing that is, I think, abundantly clear when the nature of the contract there in question is considered, which was merely a contract under which a percentage of profits was payable by the railway company to the French Government. There was no question of services or anything of that kind in the case; it was merely a sum payable out of profits. I do not find myself constrained by that expression of opinion, because it must be read; as Lord Macmillan has said in a subsequent case Union Cold Storage Co. Ltd. vs Adamson (2 ) at pp. 331 2, in relation to the particular subject matter with which he was dealing. " As has been said above the question to be considered in this case is governed by the observations of this Court in Commissioner of Income tax vs Chandulal Keshavlal & Co. (3) and the circumstances under which the trust agreed to lend the appellant such a large sum of money shows the true nature of the transaction. On the facts proved in the present case the Trust agreed to finance the business of the appellant on the terms set out in the agreement and there is nothing to show that he could have made any better arrangements or would not have lost the contract if he had failed to enter into the agreement i.e. the agreement to pay the amounts in dispute. Therefore in a commercial sense the payments were an expenditure wholly and exclusively laid out for the purpose of the business. In our opinion, therefore, the High Court was in error and the question referred should have been (1) [1931] L.R. 58 I.A. 239. (2) , 331 32. (3) 371 answered in the affirmative in favour of the appellant. The appeals are, therefore, allowed and the judgments, and orders of the High Court are set aside. The appellant will have his costs in this Court and in the High Court. One hearing fee. Appeals allowed.

The assessee entered into a contract for working certain collieries. As he did not have the requisite funds, he entered into an agreement with M whereunder M was to advance a sum upto Rs. 11/2 lacs, but could withdraw the money at any time and stop further advances and was not liable for any losses; the assessee was to pay interest on the advances at 6% per annum in addition to a sum equivalent to 11/16th of the net profits of the business. In pursuance of the agreement M made advances to the assessee and the assessee paid interest and 11/16th of his net profits to M. The assessee claimed these amounts paid to M as allowable deductions under section 10(2)(iii) or under section 10(2)(xv) of the Income tax Act. The amount paid as interest was allowed but the other sums paid were not allowed on the ground that these sums were not wholly and exclusively laid out for the purpose of the business. Held, that the assessee was entitled to the deductions claimed. The case had to be decided according to the tenor of the agreement and the circumstances of the case. In order to justify the deduction of the sum given up had to be for reasons of commercial expediency; it may be voluntary but so long as it was incurred for the assessee 's benefit, e.g., the carrying on of his business, the deduction was claimable. In the present case there was nothing to show that the assessee could have made any better arrangements or would not have lost the contract had he not entered into the agreement with M. Therefore in a commercial sense the payments were an expenditure wholly and exclusively laid out for the purpose of the business. Commissioner of Income tax vs Chandulal Keshavlal, , followed. Commissioner of Income tax, Bombay vs M/s. jaggannath Kissonlal; , , M/s. Haji Aziz & Abdul Shakoor Bros. vs The Commissioner of Income tax, ; , and Strong vs Woodifield, ; , relied on. Pondicherry Railway Company vs Commissioner of Income tax, Madras, (1931) L.R. 58 I.A. 239, distinguished. Union Cold Storage Co. Ltd. vs Adamson, , 360 Tata Hydro Electric Agencies Ltd., Bombay vs The Commissioner of Income tax, Bombay Presidency. (1937) L.R. 64 I.A. 215, Robert Addie & Sons ' Colleries, Ltd, vs Commissioners of Inland Revenue, , Commissioner of Income tax, Bombay Presidency vs Tata Sons Ltd. , The Indian Radio and Cable Communications Company Ltd. vs The Commissioner of Income tax, Bombay, , British Sugar Manufacturers Ltd. vs Harris, , referred to.

The appellant who had agricultural income from his Zamindari was assessed to income tax for the four assessment years, 1944 45, to 1947 48. The income tax authorities did not include in his assessable income, interest received by him on arrears of rent, in view of a decision of the Patna High Court, but subsequently this view of law was reversed by the Privy Council. On August 8, 1948, the Income tax Officer issued notices under section 34of the Indian Income tax Act, 1922, for assessing the escaped income. Before the notices were issued the Income tax Officer had not put the matter before the Commissioner for his approval as the section then did not require it and the assessments were completed on those notices. In the meantime, certain amendments were made to the Indian Income tax Act by Act 48 of 1948, which received the assent of the Governor General on September 8, 1948. The Amending Act substituted a new section in place of section 34, which among other changes, added a proviso to the effect that "the Income tax Officer shall not issue a notice. unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice", and also made it retrospective by providing that the new section "shall be deemed to have come into force on the 30th day of March, 1948". The question was whether the notices issued by the Income tax Officer on August 8, 1948, without the approval of the Commissioner, were rendered void by reason of the operation of the amended section 34. The Commissioner claimed that section 6 of the , saved the assessments as well as the notices. Held, that section 6 of the , was in applicable as the Amending Act of 1948 indicated a different intention within the meaning of that section, inasmuch as the amended section 34 of the Indian Income tax Act, 1922, provided that it shall be deemed to have come into force on March 30, 1948. Lemm vs Mitchell, ; , distinguished, 761 Held, further, that the notices issued by the Income tax Officer on August 8, 1948, and the assessments based on them were invalid. Venkatachalam vs Bombay Dyeing & Mfg. Co., Ltd., ; , applied.

The assessee made a full disclosure of his income and claimed expenses incurred for the maintenance of his immature rubber plantations as deductions. The Agricultural Income Tax Officer, after considering the matter, allowed such deductions as he thought proper. The appellant Commissioner, in exercise of his revisional powers under section 34, Kerala Agricultural Income Tax Act, 1950, issued notice to the respondent (widow of the assessee) proposing to revise the assessment on the ground that the deductions allowed were excessive. The appellant, after considering the respondent 's objections, held that the deductions allowed were excessive and remanded the matter to the Agricultural Income Tax Officer for fresh disposal according to law. At the instance of the respondent, the question whether the appellant had jurisdiction to pass the order under section 34 was referred to the High Court, and the High Court, on the view that it was a case of re opening escaped assessment held, relying on Maharajadhiraj Sir Kameshwar Singh vs State of Bihar, , that the power of revision vested in the Commissioner under section 34 could not be invoked for the purpose of assessing income that had escaped assessment, and that such income could be assessed only by resorting to the procedure prescribed by section 35. within the time limit prescribed therein. Allowing the appeal to this Court, ^ HELD:(1) Every case of under assessment is not a case of escaped assessment. The Agricultural Income Tax Officer may have committed an error in allowing the deductions to the extent he did, but he did so after applying his mind to the claims. This is not a case where the officer omitted to assess any item of income disclosed in the assessee 's return as in the case relied on by the High Court and as in kamal Singh vs C.I.T. Therefore, it is not a case of reopening escaped assessment. [662F H] Deputy Commissioner of Agricultural Income tax and Sales Tax, Quilon and another vs Dhanalakshmi Vils Cashew Co., (1969) 24 S.T.C. 491, followed. (2) Since it is not a case of escaped assessment, the appellant had jurisdiction to make the order under section 34. [663B]

A partnership of two partners was dissolved on the death of one of them on August 24, 1957 and the business was taken over by the surviving partner on his own account. The services of the employees were not interrupted and there was no alteration in their terms of employment. In proceedings for assessment to income tax for the assessment year 1958 59 it was urged on behalf of the firm that an amount of Rs. 1,41,506 taken into account under the head "gratuity payable to workers of the business" in settling the accounts of the firm till August 24, 1957 was a permissible outgoing. The Income tax Officer rejected the claim and the Appellate Assistant Commissioner confirmed his order. However, the Tribunal, in appeal, held that on the dissolution of the firm, the workmen became entitled to retrenchment compensation under section 25FF of the and the firm was therefore entitled to the deduction. The High Court, upon a reference, confirmed this view. On appeal to this Court, HELD : The amount claimed by the assessee as a permissible allowance in his profit and loss account could not be regarded as properly admissible either under section 10(1) or under section 10(2)(xv) of the Income Tax Act, 1922. [735 B] Under the proviso to section 25FF the liability.to pay retrenchment compensation arose for the first time after the closure of the business and not before. It arose not in the carrying on of the business, but on account of the transfer of the business. It was not therefore a liability of a revenue nature and could not be treated as a permissible deduction under section 10(1). [733 H] Alex A. Apcar (Jr.) & Company vs M. V. Gan and Others, A.I.R, , referred to. Anakpalia Cooperative Agricultural and Industrial Society vs Its, Workmen & Others, , Calcutta Company Ltd. vs Commissioner of Income tax, West Bengal, and Owen (H. M. Inspector of Taxes) vs Southern Railway of Peru Ltd., , distinguished. Where accounts are maintained on the mercantile system, if liability to make a payment has arisen during the time the business is carried on. and the expenditure is for the purpose of carrying on the business, it may be deductible under Section 10(2)(xv) but where the liability is during the whole of the period that the business is carried on wholly contingent and does not raise any definite obligation during that time it cannot fall L9Sup. CI/67 3 728 within the expression "expenditure laid out or expended wholly or exclusively" for the purpose of the business. [734 D E) Commissioner of Income tax, Madras vs Indian Metal and Metallurgical Corporation, and Standard Mills Company Ltd. vs Commissioner of Wealth tax, Bombay, , relied on.

The Union of India, the appellant, approached the High Court under Article 226 of the Constitution, challenging notices of demand issued by the Municipal Council, respond ent No.1, claiming tax to the tune of Rs. 28,400 by way of 'Service charges ' due for the period 1954 to 1960, under Article 285 of the Constitution read with Section 135 of the Indian Railways Act, 1890. The High Court dismissed the writ petition negativing the claim, against which, this appeal by special leave was filed. Allowing the appeal, this Court, HELD 1. Section 135 of the Indian Railways Act, 1890 gets saved under Article 285(1) of the Constitution itself. The said Article provides that property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by the State or by any authority within a State. [185 A B] 2. Section 1315 of the Railways Act permits taxation of Railways by the local authority in the manner given therein; the Central Government being the controlling and the regu lating authority permitting liability at a given point of time, its extent and manner. The Indian Railways Act being a central enactment has no role to play in sub Article (2) of Article 285, for that is a sphere in which the State legis lation operates. [186 A B] 3. The reasoning of the High Court to oust the applica bility of Section 135 of the Indian Railways Act on the test of sub Article (2) of Article 285 was totally misplaced, as also in not venturing to create room for it in sub Article (1) of Article 285. The interplay of the constitutional 184 and legal provisions being well cut and well defined re quired no marked elaboration to stress the point. [186 B C]

The Income tax officer, Dacca, acting under the Bengal Agricultural Income tax Act, 1944, sent by registered post a notice to the Manager of an Estate belonging to the Tripu ra State but situated in Bengal, calling upon the latter to furnish a return of the agricultural income derived from the Estate during the previous year. The notice was received by the Manager in the Tripura State. The State, by its then Ruler, instituted a suit in June, 1946, against the Province of Bengal and the Income tax Officer, in the court of the Subordinate Judge of Dacca for a declaration that the said Act in so far as it purported to impose a liability to pay agricultural income tax on the plaintiff was ultra vires and void, and for a perpetual injunction to restrain the defend ants from taking any steps to assess the plaintiff. The suit was subsequently transferred to the Court of the Subor dinate Judge of Alipore. The partition of India under the Indian Independence Act took place on the 158h August 1947, and the 2 Province of East Bengal in which the Estate was situated, was substituted as a defendant in the place of the Province of Bengal on an application made by it, and in its written statement it contended that the court of Alipore which was situated in West Bengal had no jurisdiction to proceed with the suit. The High Court of Calcutta, reversing the order of the Subordinate Judge of Alipore held that the provisions of the Indian Independence (Legal Proceedings) Order, 1947, and the Indian Independence (Rights, Property and Liabili ties)Order, 1947, did not apply to the case and, as the matter was accordingly governed by the rules of internation al law, the court of Alipore had no jurisdiction to proceed with the suit: Held per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and CHANDRASEKHARA AIYAR JJ. (FAZL ALI J. concurrinG) The suit was not one with respect to any property transferred to East Bengal by the Indian Independence (Rights, Property and Liabilities) Order, 1947, nor was it a suit in respect of any "rights" transferred by the said Order, inasmuch as the Province of East Bengal obtained the right to levy income tax not by means of any transfer under the said Order, but by virtue of sovereign rights which were preserved by section 18 (3) of the Indian Independence Act, 1947, and article 12 (2) of the said Order had no application to the case. Held per KANIA C.J., PATANJALI SASTRI, MUKHERJEA AND CHANDRASEKHARA AIYAR J.J. (FAZL ALI J, dissenting.) (i) Since the object of the Indian Independence (Rights, Property and Liabilities) Order, 1947, was to provide for the initial distribution of rights, properties and liabili ties as between the two Dominions and their Provinces, a wide and liberal construction, as far as the language used would admit, should be placed upon the Order, so as to leave no gap or lacuna in relation to the matters sought to be provided for. The words "liability in respect of an action able wrong" should not therefore be understood in the re stricted sense of liability for damages for completed acts, but so as to cover the liability to be restrained by injunc tion from completing what on the allegations in the plaint are illegal or unauthorised acts which have been commenced. As the Province of Bengal was, on the: allegations in the plaint, liable to be restrained from proceeding with an illegal assessment, that liability was, accordingly, a liability in respect of "an actionable wrong other than breach of contract" with in the meaning of article 10 (2) (a) of the above said Order; and, as the cause of action arose wholly in Dacca within the Province of East Bengal, that liability passed to the province of East Bengal under article 10 (2) (a), the latter must be deemed to be substituted as a party to the suit and the suit must continue in the court of the Subordinate Judge of Alipore, under Art.4 of the Indian Independence (Legal Proceedings) Order, 1947. (ii) Assuming that the cause of action did not wholly arise 3 in Decca, article 10 (9.) (c) would apply and the Province of East Bengal would still be liable, though jointly with the Province of West Bengal. (iii) As the suit was not one "to set aside or modify any assessment made under the Act", section 65 of the Bengal Agricultural Income tax Act, 1944, had no application and the suit was therefore one in respect of an "actionable" wrong within the moaning of article 10 (2) (a). Per FAZL ALI J. The words "liability in respect of an actionable wrong other than breach of contract" in article 10 of the Indian Independence (Rights, Property and Liabili ties) order 1947, refer to liability capable of being ascer tained in terms of money such as liability for damages for tort and not liability in any abstract or academic sense. Even if a meaning, as wide ' as they can bear in a legal context, is given to the words "actionable wrong" and "liability" two elements are necessary to constitute an actionable wrong, namely, (i) an act or omission amounting to an infringement of a legal right of a person or breach of duty towards him, and (ii) damage or harm resulting there from. The mere issuing of a notice under section 4 of the Bengal Agricultural Income tax Act, 1944, by the Income tax Officer is not an actionable wrong because no right known to law is infringed thereby and no action for damages can be main tained in respect of such an act, even assuming that the Income tax Officer had exceeded his powers or acted under an invalid provision of law. No "liability for an action able wrong" was thus involved in the suit and no liability in respect of such a wrong could therefore be said to have been transferred to the Province of East Bengal within the meaning of article 10 (2.) of the said Order so as to entitle the plaintiff to continue the suit against the Province of East Bengal under article 10 (2). For the purpose of understanding the full scope of section 65 of the Bengal Agricultural Income tax Act, 1944 it is necessary also to read the latter part which provides that no suit or other proceeding shall lie against any officer of the Crown for anything in good faith done or intended to be done under the Act. " The latter part of the section clearly excludes the jurisdiction of the courts to prevent the Income tax Officer from proceeding with an assessment which has been started and the section must on a fair construction be held to bar all suits in connection with such assessment whether against the State or an Income tax Officer of the State. If, therefore, no suit or action lies, there cab be no liability for an actionable wrong. [The nature of actionable wrongs and torts discussed.] Judgment of the Calcutta High Court reversed.

In assessment proceedings under the Wealth Tax Act for four assessment years the assessee claimed a deduction in the computation of his net wealth on account of income tax, wealth tax and gift tax liabilities. The Wealth Tax Officer allowed only part of the deductions claimed The appeal of the assessee was dismissed by the Appellate Assistant Commissioner of Wealth Tax. In the second appeal before the Appellate Tribunal, the assessee filed statements showing particulars of the income tax, wealth tax and gift tax liabilities in respect of the different assessment years. The Revenue contended that the income tax liability and the gift tax liability for one of the assessment years [1965 66] had been cancelled by the Appellate Assistant Commissioner in appeals against the assessment orders and those appellate orders of the Appellate Assistant Commissioner having become final in view of the dismissal of the Revenue 's appeals by the Appellate Tribunal, there was no outstanding demand on account of income tax and gift tax for that year and that therefore these two items do not constitute 'debts owed ' by the assessee and so would not qualify for deduction under section 2(m) of the Wealth Tax Act. The Appellate Tribunal following two judgments of this Court [Commissioner of Income Tax vs Keshoram Industries Pvt. Ltd. (1966) 59 I.T.R. 767 and H.H. Setu Parvati Bayi vs Commissioner of Wealth Tax Kerala , held that so long as the liability to pay the tax had arisen before the relevant valuation dates it was immaterial that the assessments were quantified after the valuation of dates, that the question whether a debt was owed by the assessee must be examined with reference to the position obtaining on the valuation date and that nothing happening subsequently could be considered in computing the net wealth. 491 The High Court having refused te call for a reference from the Appellate Tribunal under section 27(3) of the Act the Revenue appealed to this Court. Allowing the appeals in part. ^ HELD: 1. Whether a debt was owed by the assessee on the valuation date would depend on the fact that a liability had already crystallised under the relevant taxing statute on the valuation date. [494 D] 2. An income tax liability crystallises on the last day of the previous year relevant to the assessment year under the Income Tax Act, a wealth tax liability crystallises on the valuation date for the relevant assessment year under the Wealth Tax Act and a gift tax liability crystallises on the last day of the previous year for the relevant assessment year under the Gift Tax Act. [494 E] 3. The quantification of the income tax, wealth tax or gift tax liability is determined by a corresponding assessment order, and even if the assessment order is made after the valuation date relevant to the wealth tax assessment in which the claim to deduction is made, there is a debt owed by the assessee on the valuation date. It is the quantification of the tax liability by the ultimate judicial authority which will determine the amount of the debt owed by the assessee on the valuation date. So long as such ultimate determination indicates the existence of a positive tax liability, it must be held that there is a debt owed by the assessee on the valuation date even though such determination may be subsequent in point of time to the valuation date. If, however, it is found on such ultimate determination that there is no tax liability it cannot be said that merely because originally a tax liability could be envisaged there was a debt owed by the assessee. [495 B E] 4. Section 2(m) (iii) (a) denies deduction of an amount of tax which is outstanding on the valuation date if the assessee contends in appeal, revision or other proceeding that he is not liable to pay the tax. It presupposes that there is a subsisting tax demand and the assessee has challenged its validity. It refers to the initial stage only where an appeal, revision or other proceeding is pending merely. It does not proceed beyond that stage to the point where, in consequence of such appeal, revision or other proceeding, the tax liability has been found to be nil. Once it is determined that the tax liability is nil, it cannot be said that any amount of tax is outstanding. Such a situation does not bring section 2(m) (iii) (a) into operation at all. If upon the ultimate determination it is found that the amount of tax is nil, the assessee is denied the deduction claimed by him not on the ground of section 2(m) (iii) (a) but because the superior authority has found that there is no tax liability whatever. [496 A D] In the instant case, the income tax and the gift tax liabilities for the assessment year 1965 66 subsequently set aside on appeal after the valuation dates, cannot be regarded as debts owed by the assessee on the relevant valuation dates. [495 G] 492 Commissioner of Income Tax vs Keshoram Industries Pvt Ltd. ; ; H.H. Setu Parvati Bayi vs Commissioner of Wealth Tax, Kerala referred to. Late P. Appavoo Pillai vs Commissioner of Wealth Tax Madras reversed.

The petitioners as partners of a registered firm were assessed to income tax for the relevant assessment years. Thereafter they made a disclosure of their income under a "Voluntary Disclosure Scheme" regarding profits which had escaped assessment, and on reassessment of the disclosed income income tax, super tax and surcharge were levied. The levy of surcharge but not income tax and super tax was challenged as unauthorised. Held, that the power to legislate for levy of tax on income was conferred upon the Federal Legislature by section 100 sub sections (1) and (2) of the Government of India Act, 1935, and item 54 of List I of the Seventh Schedule and the Federal Legislature was competent under that entry to legislate in regard to the levy of a surcharge on tax; section 138(1) proviso (b) did not restrict the amplitude of that legislative power. The term "Federal purposes" in section 138 is not defined in the Government of India Act nor in the ; but there is sufficient indication in the section itself that surcharges were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes therein mentioned. The concept of the words "purposes of the Central Government" under the was not different from what was intended by the use of the words "Federal purposes" in section 138(i) proviso (b) of the Government of India Act.

Appeal No.84 of 1960. 888 Appeal from the judgment and decree dated July 26, 1956. of the Bombay, High Court in Appeal No. he 138 of 1956. The appellant in person. B. R. L. Ayengar and D. Gupta, for the respondent. April 12. The Judgment of the Court was delivered by SINHA, C. J. The main question for decision in this appeal, on a certificate of fitness granted by the ' High Court of Judicature at Bombay, is whether a public servant, who has been officiating in a higher post but has been reverted to his substantive rank as a result of an adverse finding against him in a departmental enquiry for misconduct, can be said to have been reduced in rank within the meaning of section 240(3) of the Government of India Act, 1935. The learned Civil Judge, Senior Division, by his, Judgment and Decree dated October 31, 1955, held that it was so. The High Court of Bombay, on a first appeal from that decision, by its Judgment and Decree dated July 26, 1956, has held to the contrary. In so far as it is necessary for the determination of this appeal, the facts of this case may shortly be stated as follows. The appellant was holding the rank of a Mamlatdar in the First Grade and Was officiating as a District Deputy Collector. In the latter capacity he was functioning as a District Supplies Officer. He had to undertake tours in the discharge of his official duties for which he maintained a motor car. In respect of one of his travelling allowance bills, it was found that he had charged travelling allowance in respect of 59 miles whereas the correct distance was only 51 miles. A departmental enquiry was held against him as a result of which he was reverted to his original rank as Mamlatdar, by virtue of the Order of the Government dated August 11, 1948, (exhibit 35), which was to the following effect: "After careful consideration Government have decided to revert you to Mamlatdar for a period of 889 three years and have further directed that you should refund the excess mileage drawn by you in respect of the three journeys. " The appellant made a number of representations to the Government challenging the correctness of the findings against him and praying for re consideration of the Order of Reversion passed against, him but to no effect, in spite of the fact that ultimately the Accountant General gave his opinion that the appellant had not overcharged and that there was no fraud involved in the travelling allowance bill which was the subject matter of the charge against him. But ultimately, by a Notification date& March 26, 1951, (exhibit 61), the appellant was promoted to the Selection Grade with effect from August 1, 1950, but even so the Order of Reversion passed against the appellant remained effective and appears to have affected his place in the Selection Grade. Eventually, the appellant retired from service on superannuation with effect from November 28, 1953. He filed his suit against the State of Bombay on August 2, 1954, for a declaration that the Order of the Government dated August 11, 1948, was void, inoperative, wrongful, illegal and ultra vires, and for recovery of Rs. 12,866 odd or account of his arrears of salary, allowances, etc. with interest and future interest. The learned Civil Judge Senior Division, at Belgaum, came to the conclusion that the first part of the departmental enquiry held against the plaintiff leading up to the findings against him was free from any defect but that he had no been given the opportunity of showing cause against the punishment proposed to be inflicted upon him a a result of those findings, in so far as no show cause notice was given to him nor a copy of the enquire, report showing the grounds on which the findings ha, been based. There was, thus, according to the finding of the Trial Court, no full compliance with the requirements of section 240(3) of the Government of India Act 1935. The Court also held that the Order of Reversion amounted to a penalty imposed upon the plaintiff as a result of the enquiry. The Court, therefore, cam 890 to the conclusion that the Order aforesaid passed by the Government reverting him to the substantive rank was void and granted him that declaration, but dismissed his suit, with costs, in respect of the arrears Claimed by him as aforesaid on the ground that it was based on tort and not on contract. There was an appeal by the plaintiff in respect of the dismissal of his claim for arrears, and cross objections by the State in respect of that part of the judgment and decree which had granted declaration in favour of the plaintiff. The High Court dismissed the appeal by the plaintiff and allowed the cross objections of the de fendant respondent in respect of the declaration, but made no orders as to the costs of the appeal and the cross objections. The High Court held that the Order of Reversion, even assuming that it was a punishment as a result of the departmental enquiry against the appellant, was not a punishment within the meaning of section 240(3) of the Government of India Act, 1935. It also held that the Order of Reversion was not a punishment at all. In this Court, the appellant, who has argued his own case with ability, has urged in the first place, and in our opinion rightly, that his case is covered by the observations of this Court in Parshotam Lal Dhingra vs Union of Indid (1). Those observations are as follows: "A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower (1) , 863 64. 891 post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "termi nate" or "discharge" is not conclusive. Tn spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant bad a right to the post or the rank or (2) whether he ha,,; been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of rules and article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the consti tutional right of the servant. " He has rightly pointed out that he would have continued as a Deputy Collector but for the Order of the Government, dated August 11, 1948, impugned in this case, as a result of the enquiry held against him, and that his reversion was not as a matter of course or for administrative convenience. The Order, in terms, held him back for three years. Thus his emoluments, present as well as future, were adversely affected by the 892 Order aforesaid of the Government. In the ordinary course, he would have continued as a Deputy Collector with all the emoluments of the post and would have been entitled to further promotion but for the setback in his service as a result of the adverse finding against him, which finding was ultimately declared by the Account ant General to have been under a misapprehension of the true facts. It is true that he was promoted as a result of the Government Order dated March 26, 1951, with effect from August 1, 1950. B ' that promotion did not entirely cover the ground lost by him as a result of the Government Order impugned in this case. It is noteworthy that the Judgment of the High Court under appeal was given in July, 1956, when the decision of this Court in Dhingra 's case (1) had not been given. The decision of this Court was given in November, 1957. Of the two tests laid down by this Court, certainly the second test applies, if not also the first one. He may or may not have a right to hold the post or the rank, but there is no doubt that he was visited with evil consequences. Ordinarily, if a public servant has been officiating in a higher rank it cannot be said that he has a substantive right to that higher rank. He may have to revert to his substantive rank as a result of the exigencies of the service or he may be reverted as a result of an adverse finding in an enquiry against him for misconduct. In every case of reversion from an officiating higher post to his substantive post, the civil servant concerned is deprived of the emoluments of the higher post. But that cannot, by itself, be a ground for holding that the second test in Dhingra 's case (1), namely, whether he has been visited with evil consequences, can be said to have been satisfied. Hence, mere deprivation of higher emoluments as a consequence of a reversion cannot amount to the "evil consequences" referred to in the second test in Dhingra 's case (1); they must mean something more than mere deprivation of higher emoluments. That being so, they include, for example, forfeiture of substantive pay, loss of seniority, etc. Applying that (1) [1058] S.C.P. 326, 863 64. 893 test to the present case, it cannot be said that simply because the appellant did not get a Deputy Collector 's salary for three years, he was visited with evil conse quences of the type contemplated in Dhingra 's case (1). Even if he had been reverted in the ordinary course of the exigencies of the service, the same consequences would have ensued. If the logs of the emoluments attaching to the higher rank in which he was officiating was the only consequence of his reversion as a result of the enquiry against him, the appellant would ' have no cause of action. But it is clear that as a result of the Order dated August 11, 1948 (exhibit 35), the appellant lost his seniority as a Mamlatdar, which was his substantive post: That being so, it was not a simple case of reversion with no evil consequences; it had such consequences as would come within the test of punishment as laid down in Dhingra 's case. If the reversion had not been for a period of three years, it could not be said that the appellant had been punished within the meaning of the rule laid down in Dhingra 's case, (1). It cannot be asserted that his reversion to a substantive post for a period of three years was not by way of punishment. From the facts of this case it is clear that the appellant was on the upward move in the cadre of his service and but for this aberration in his progress to a higher post, he would have, in ordinary course, been promoted as he actually was sometime later when the authorities realised perhaps that he had not been justly treated, as is clear from the Order of the Government, dated March 26, 1951, promoting him to the higher rank with effect from August 1, 1950. But that belated justice meted out to him by the Government did not completely undo the mischief of the Order of Reversion impugned in this case. It is clear to us, therefore, that as a result of the Order of Reversion aforesaid, the appellant had been punished and that the Order of the Government punishing him was not wholly regular. It has been found that the requirements of section 240(3) of the Government of India Act, 1935, corresponding to article 311 (2) of the Constitution, had not been fully complied with. His (1) ,863 64. 894 reversion in rank, therefore, was in violation of the Constitutional guarantee. In view of these considerations it must be held that the High Court was not right in holding against the appellant that his reversion was not a punishment contemplated by section 240(3) of the Government of India Act, 1935. On this part of the case, in our opinion, the decision of the High part has to be reversed and that of the Trial Court hat his reversion to his substantive rank was void, must be restored. The question then arises whether he is entitled to any relief in respect of his claim for arrears of salary and dearness allowance. He has claimed Rs. 10,777 odd as arrears of pay, Rs. 951 odd as arrears of dearness allowance, as also Rs. 688 odd as arrears of daily allowance plus interest of Rs. 471 odd, thus aggregating to the sum of Rs. 12,886 odd. This claim is spread over the period August, 1946, to November, 1953, that is to say, until the date of his retirement from Government service, plus future interest also. On this part of the case the learned Trial Judge, relying upon the case of the High Commissioner for India and Pakistan vs I. M. Lall (1) held that a government servant has no right to recover arrears of pay by an action in a Civil Court. He got over the decision of this Court in the State of Bihar vs Abdul Majid (2) on the ground that that case has made a distinction between a claim based on a contract and that on a tort. In the instant case, he came to the conclusion that as the plaintiff had claimed the difference between the pay and allowance actually drawn and those to which he would have been entitled but for the wrongful orders, the claim was based on tort and, therefore, the plaintiff was not entitled to any relief. On the question of limitation, he held that the suit would be governed by article 102 of the Indian Limitation Act (IX of 1908) as laid down by the Federal Court in the case of The Punjab Province vs Pandit Tarachand (3). In that view of the matter, the learned Judge held that adding the period of two months of the statutory notice under section 80 of the Code of Civil Procedure given to (1) (1948) L.R. 75 I.A. 225. (2) ; (3) 895 Government, the claim would be in time from June 2, 1951. Hence the Trial Court, while giving the declaration that the Order impugned was void, dismissed, the rest of the claim with a direction that the plaintiff was to pay 3/4ths of the costs of the suit to the defendant. The High Court dismissed the suit in its entirety after allowing the cross objections of the State. The appellant contended that his suit for arrears of salary would not be governed by the three years rule laid down in article 102 of the Limitation Act and that the decision of the Federal Court in Tarachand 's case (1) was not correct. The sole ground on which this contention was based was that "salary" was not included within the term "wages". In our opinion, no good reasons have been adduced before us for not following the aforesaid decision of the Federal Court. In the result, the appeal is allowed in part, that is to say, the declaration granted by the Trial Court that the Order of the Government impugned in this case is void, is restored, in disagreement with the decision of the High Court. The claim as regards arrears of salary and allowance is allowed in part only from the 2nd of June, 1951, until the date of the plaintiff 's retirement from Government service. There will be no decree for interest before the date of the suit, but the decretal sum shall bear interest at 6% per annum from the date of the suit until realisation. The plaintiff appellant will be entitled to three fourths of his costs throughout, in view of the fact that his entire claim is not being allowed. Appeal allowed in part.

The appellant, who held the rank of a Mamllatdar in the first grade and was officiating as District Deputy Collector, was alleged to have wrongly charged travelling allowance for 59 miles instead of 51 and was, as the result of a departmental enquiry, reverted to his substantive rank for three years and 887 directed to refund the excess be had charged. He made a re presentation to the Government which was of no avail although the Accountant General was of the opinion that the appellant had not overcharged and committed no fraud. Ultimately the appellant was promoted to the selection grade but the order of reversion remained effective and affected his position in the selection grade. After retirement he brought a suit for a declaration that the order of reversion was void and for recovery of Rs. 12, 516 and odd as arrears of salary, allowances, etc., with interest and future interest. The trial court held that there was no compliance with the provisions of section 240(3) of the Government of India Act, 1935, granted the declaration but refused the arrears claimed. The plaintiff filed an appeal and the State a cross objection and the High Court dismissed the appeal and allowed the cross objection, holding that the order of reversion was not a punishment within the meaning of section 240(3) of the Government of India Act, 1935. Held, that the matter was covered by the observations of this Court in Purshottam Lal Dhingra 's case and of the two tests of punishment laid (town by this Court, namely, (1) whether the servant had a right to the rank or (2) whether he had been visited by evil consequences of the kind specified therein, the second certainly applied. The appellant might or might not have the right to hold the higher post, but there could be no doubt that the was visited with evil consequences as a result of the order of reversion. Mere deprivation of higher emoluments, however, in conse quence of an order of reversion could not by itself satisfy that test which must include such other conseqnences as forfeiture of substantive pay and loss of seniority ' In the instant case, by the order of reversion for three years to his substantive post, the appellant lost seniority and promotion and the belated action of the Government could not wholly undo the mischief. Since the requirement of section 240(3) of the Government of India Act, 1935, which corresponds to article 311(2) of the Constitution, had not been found to have been fully complied with, the order of reversion must be held to be void. Purshottam Lal Dhingra vs Union of India, , applied. The claim of arrears of salary was governed by article 102 of the Indian Limitation Act, and the appellant, therefore, was entitled to no more than what fell due during the 3 years previous to his retirement. The Punjab Province vs Pandit Tarachand, [1947) F.C.R. 89, followed.

A suit was filed by the appellants in the Court of the Assistant Collector seeking ejectment of the respondent tenant from his lands, under section 77(3) proviso 2(e) of the Punjab Tenancy Act, 1887 on the ground that he had defaulted in the payment of rent, and it was decreed. In execution of the decree, the respondent was ejected from the suit land. No appeal was filed from the said decree but the respondent filed a suit in the Civil Court against the appellants alleging that he was in fact a mortgagee in possession of the suit land and not a tenant and that the decree of ejectment passed by the Revenue Court was without jurisdiction and, therefore, a nullity, and claimed restoration of the possession of the suit land from which he had been wrongly ousted by the Revenue Court. The suit was dismissed by the Subordinate Judge holding that the claim of the respondent to be a mortgagee in possession of the suit land was wrong and that the order of the Revenue Court was perfectly in order and within that court 's jurisdictional competence and that it was of a binding nature on the respondent and was not open to challenge in subsequent proceedings. The appellant asserted that the claim by the respondent in the subsequent suit was barred by the principles of res judicata. The suit was dismissed. In appeal, the Additional District Judge reversed the findings of the trial court and decreed the suit of the respondent. The appellants filed regular second appeals before the High Court. 94 A Single Judge of the High Court was of the view that, in view of the conflicting judgments on the points for determination in the case, the matter required to be referred to a larger bench. The Full Bench, by a majority view, held that the decision of the Revenue Court under section 77 of the Punjab Tenancy Act upon the relationship of landlord and tenant between the parties would not operate as res judicata and it would be open to challenge in a subsequent suit or in other collateral proceedings between the parties, and remitted the matter back to the Single Judge for disposal in accordance with the above decision. The question for consideration in the appeals by Special Leave before this Court was: as to how far an order of eviction of a person by the Revenue Court under section 77(3) of the Punjab Tenancy Act, 1887 operated as res judicata for a title suit filed by a person claiming to be a mortgagee and not a tenant of the alleged landlord. Dismissing the appeals by special leave, this Court, ^ HELD: 1. The High Court was right in holding that there was no res judicata so far as the second suit based on the assertion of the title of the respondent was concerned. [105C D] 2.1 The overall scheme of the Act is to provide speedy remedies with regard to disputes between the landlords and tenants and also under what circumstances that relationship came to an end. Sections 98 and 99 do not in any way affect the question whether the decision of the Revenue Court under the Revenue Act can operate as res judicata in certain cases. The limits of the jurisdiction would be apparent by the fact that all suits by a landlord to eject a tenant do not encompass suits to decide whether a person was a tenant or not or whether the plaintiff was a landlord or not. [98C; 99 F G] 2.2 ouster of jurisdiction of Civil Courts should not be inferred easily. It must be clearly provided for and established. If the dispute was as to the nature of the relationship of landlord and tenant between the parties, the Revenue Court under the Punjab Tenancy Act had no jurisdiction; when there was admitted position, the relationship of landlord and tenant was accepted, the remedies and rights of the parties should be worked out under the scheme of the Act. [103C D] 2.3 A salutory and simple test to apply in determining whether the previous decision operated as res judicata or on principles analogous thereto was to find out whether the first court could go into the question 95 whether the respondent was a tenant in possession or mortgagee in A possession. In view of the language of section 77 it is clear that it could not and, therefore, there was no res judicata. The subsequent civil suit was. therefore, not barred by res judicata. [105B C] Raj Lakshmi Dasi and others vs Banamali Sen and others, ; Om Prakash Gupta vs Rattan Singh and another, ; Shri Raja Durga Singh of Solan vs Tholu; , ; Magiti Sasamal vs Pandab Bissoi, ; Lal Chand (dead) by Lrs. and others vs Radha Kishan, [1977] 2 SCR 522 and State of Tamil Nadu vs Ramalinga Samigal Madam; , , referred to.

The suit land was taken under Government management as it was lying fallow for two consecutive years. The Mamlatdar, appointed as a Manager thereof under Section 45, of the Bombay Tenancy and Agricultural Lands Act, 1948, after assuming management, leased out the said land to the appellant for a period of 10 years by an agreement of lease dated 7.12.1951. The period of lease expired on 6.12.1961. However, the management of the land was terminated by Government by the Assistant Collector 's order dated 27.7.63 and possession thereof was ordered to be restored to the respondent landlord. The appellant filed a Civil Suit against the respondent contending that he was paying rent to the Mamlatdar during the period 7.12.1961 to 27.7.1963 and thus continued to be a tenant in respect of the land. The Civil Judge made a reference to the Mamlatdar, who held that the appellant continued to be tenant. The respondent 's appeal to the Assistant Collector having failed, a revision application was moved before the Revenue Tribunal wherein the question arose whether the appellant 's tenancy was subsisting on 27.7.1963, the date of termination of the management. The Tribunal held that the appellant could not continue as tenant on the termination of the management, since the land was taken under the Government management under Section 88(1) of the Act. 82 The High Court in the Application under Article 227 of the Constitution of India having upheld this finding of the Tribunal, the appellant filed Special Leave petition to this Court. The appellant contended that having continued payment of rent to the Mamlatdar even after expiry of the lease till the termination of management, he continued to be a tenant which the landlord could not avoid on resumption of the land, while the respondent submitted that the appellant could by no means continue to be a tenant after the expiry of lease, and that no fresh lease was granted to him after the management was terminated. Dismissing the appeal, this Court, HELD: 1. On the finding of the courts below that after the expiry of the lease, no fresh lease was granted by the Manager, the appellant 's claim to have continued as the tenant even after expiry of the lease on 6.12.1961 and till 27.7.1963, the date of termination, by paying rent for the period to the Mamlatdar would be of no avail, in the absence of fresh lease after expiry of the 10 years lease on 6.12.1961. This would be so because the Act does not envisage the Government as a landholder but only as Manager. While delivering back the land into the possession of the landholder, it could not be burdened with any tenancy created or resulting while under management. Besides, there could be no privacy between the landlord and the erstwhile tenant under Government in the matter of tenancy. Between the appellant and the respondent landlord, therefore, no question of the former continuing as tenant of the latter could arise after the land was reverted to the landholder. [86B D] 2. The appellant could not have been a deemed tenant either under Section 4 or 4B of the Act inasmuch as Section 88 of the Act grants exemption inter alia to lands held on lease from the Government.[86E]

The appellant was a clerk in the Excise Department of the State of Bihar. In a disciplinary proceeding instituted against him, the Inquiring Officer found that six out of seventeen charges framed against him had been established and submitted his report accordingly on 9.11.1960. The Excise Commissioner accepted the report of the Inquiring Officer and issued a show cause notice dated 8.9.1961 to the appellant as to why he should not be removed from service. The appellant submitted his reply to the said notice on 1.11.1961. After the submission of the Report by the Inquiring Officer, the civil surgeon of the area issued a certificate to the effect that the appellant was an invalid and he could not discharge his duties properly in the state of his health. On 31.1.1962, an order was passed by the Excise Commissioner directing the retirement of the appellant on invalid pension under Rule 116 of the Bihar Pension Rules with effect from 19.7.1961. On 5.10.1963 the Government of Bihar passed an order revoking the order of retirement under Rule 73(f) of the Bihar Service Code and thereafter the Excise Commissioner passed an order on 1.11.1963 dismissing the appellant from service. The appellant challenged the said order of revocation of the order of retirement and the order of dismissal passed later on in the Patna High Court. The High Court dismissed the writ petition but granted a certificate of fitness to appeal. Allowing the appeal, the Court, ^ HELD: 1.1 In the absence of a provision which entitled the State 231 Government to revoke an order of retirement on medical grounds which had become effective and final, the order dated 5.10.1963 passed by the State Government revoking the order of retirement is without the authority of law. The order of dismissal passed thereafter is also a nullity. [234E F] 1.2. The expression "compulsory retirement" found in Rule 73(f) of the Bihar Service Code refers to retirement of a Government servant on his attaining the age of superannuation. The appellant 's case is not one of retirement from service on his attaining the age of superannuation. No order asking the appellant to continue in service before he had attained the age of superannuation for the purpose of concluding a departmental inquiry instituted against him had also been passed by the competent authority. On the other hand the appellant had been permitted to retire from service on invalid pension on medical grounds even before he had attained the age of superannuation. Rule 73(f) of the Bihar Service Code is clearly inapplicable to the case of the appellant. Further at the time the order of retirement on medical grounds was passed the Excise Commissioner had also before him the medical certificate of the Civil Surgeon. At that stage two courses were open to the Excise Commissioner. He could have either dimissed the appellant if he felt that the charges had been established or he could have ordered his retirement on invalid pension under rule 116 of the Bihar Pension Rules. The Excise Commissioner, however, passed an order directing the retirement of the appellant on January 31, 1962 with effect from July 19, 1961. Thus the appellant ceased to be a Government employee. Any order of dismissal passed thereafter would be unsustainable unless it was permissible under law to the State Government to revoke the order of retirement and to reinstate him in his former status as Government servant before the order of dismissal was passed. [234B E; 233F G]

The respondent in the appeal joined Government Service in the Ministry of Finance in a Class IV post as Peon on 22nd February, 1956. At the time of entry his service book was prepared and the date of birth was recorded as 20th May, 1934 and since he failed in the matriculation examination against the column of educational qualification 'matric failed ' was recorded. The respondent later on again appeared in the matriculation examination, passed the said examination in May, 1956, was appointed as LD.C. in the Ministry of Home Affairs on 9th May, 1957 and in his service book an entry was made showing his educational qualification as 'Matric ' underneath the earlier entry 'matric failed ' and this changed entry was signed by the Section Officer of the Ministry of Home Affairs on 7th September, 1957. Though the date of birth of the respondent as recorded in the matriculation certificate was 7.4.1938, while amending the entry about his educational qualification, the entry relating to his date of birth was not altered to correspond to the date given in the matriculation certificate and continued to be recorded as 20th May, 1934. The respondent was later transferred to the Ministry of Human Resources Development and on being notified about his date of superannuation as 31.5.1992, he realised that he was being retired on the basis of his date of birth as originally recorded in the service record as 20.5.1934 ignoring the date of birth as reflected in the matriculation certificate. In view tot the aforesaid position the respondent made a representation in September, 1991 for alteration of his date of birth but the 863 same was rejected on 4.12.1991. He submitted another representation on 3.1.1992 for correction on the basis of the date of birth as recorded in the matriculation certificate but this request was also turned down by the appellant in view of the Ministry of Home Affairs O.M. dated 29.1.1992. Yet another representation dated 26th March, 1992 was submitted by the respondent wherein he had drawn the attention of the Department to the order of the Principal Bench of the Central Administrative Tribunal in the case of Darshan Singh vs Union of India, wherein the Tribunal had directed that the date of birth should be corrected on the basis of the matriculation certificate. This representation was also rejected by the appellant on 22A.1992. Being aggrieved the respondent challenged the aforesaid order by an application before the Central Administrative Tribunal and this was contested by the appellant on various grounds including the plea of limitation. It was also urged that the application was barred by F.R. 56 (Note 5) and the General Financial Rules, 1979 and therefore did not merit and consideration. It was submitted that the respondent knew about the entry of his date of birth as 20.5.1934 since he had signed his service book on various occasions, ever since he joined service, but his representation for correction of the date of birth was made only in September, 1991 much belatedly and even beyond the period of five years from the date of entry into Government Service as envisaged by S.O. 3997 dated 30th November, 1979. The Tribunal did not agree with any of the aforesaid contentions of the appellant, allowed the application flied by the respondent and directed the appellant to correct the date of birth in the service record as per the date of birth recorded in the matriculation certificate. In the appeal by the Union of India to this Court it was contented that in view of the law laid down in Amulya Chandrakalita vs Union of India & Ors., the judgment rendered by only a single member of the Tribunal is invalid and, therefore, the order deserves to be set aside and the case remanded to the Tribunal for fresh disposal. The arguments raised before the Tribunal were also reiterated before this Court. Allowing the appeal, this Court, HELD : 1. A Government servant, after entry into service, acquires 864 the right to continue in service till the age of retirement, as fixed by the, State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. [869G] 2. The date of birth entered in the service records of a civil servant is of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. [869H] 3. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any un reasonable delay. [869H 870B] 4. A Government servant who makes an application for correction of date of birth beyond the time fixed by the Government, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. [870C] 5. Unless altered date of birth as recorded would determine date of superannuation even if it amounts to abridging the right to continue in service on the basis of actual age. [870D] State of Assam & Anr. vs Daksha Prasad Deka & Ors., ; , referred to. Note (5) to Fundamental Rule 56(m) governing correction of date of birth in the service record, as amended by Government of India, with effect from 30.11.1979 limits the exercise of the right by the Government servant to seek alteration of his date of birth only within the specified period viz. five years of entry into government service. [871A B] In the instant case, the CAT was of the opinion that the bar of five years could only apply to such Government servants who joined service after 1979, when the amendment came into force and that the said period of limitation would not apply to Government servants who were in service 865 for more than five years prior to 1979. The approach of the Tribunal tends to create an invidious discrimination, unsustainable in law, by creating two artificial classes of government servants between those who joined service before and after 1979. It is too simplistic a way of looking at the issue ignoring the ground realities and the intention of the rule making authority to discourage stale claims and non suit such government servants who seek alteration of their recorded date of birth belatedly and mostly on the eve of their superannuation. [872C, 873E] 7. It would be appropriate and in tune with the harmonious construction of the provision if in the case of those government servants who were already in service before 1979, for a period of more than five years, and who intended to have their date of birth corrected after 1979, may seek the correction of date of birth within a reasonable time after 1979 but in any event not later than five years after the coming into force of the amendment in 1979. This view would be in consonance with the intention of the rule making authority. [874C D] New India Insurance Co. Ltd. vs Smt. Shanti Misra, ; and Vinod Gurudas Raikar vs National Insurance Co., ; , referred to. In the instant case, the date of birth recorded at the time of entry into service as 20th May, 1934 had continued to exist, unchallenged between 1956 and September, 1991, for almost three and a half decades. The respondent had the occasion to see his service book at different places at different points of time. Never did he object to the recorded entry. The same date of birth was also reflected in the seniority lists of L.D.C. and U.D.C., which the respondent had admittedly seen. He remained silent and did not seek alteration till September, 1991 just a few months prior to the date of his superannuation. Inordinate and unexplained delay or laches on the part of the respondent to seek the necessary correction would in any case have justified the refusal of relief to him. Even if the respondent had sought correction of the date of birth within five years after 1979 when Note 5 to FR 56 was incorporated the earlier delay would not have non suited him. His inaction for all this period of about thirty five years from the date of joining service, therefore precludes him from showing that the entry of his date of birth in the service record was not correct. The Tribunal, therefore fell in error in issuing the direction to correct his date 866 of birth. [876C F, 876H, 877A] Darshan Singh vs Union of India, decided by Principal Bench of CAT on 9.8.1990, over ruled.

The appellant was appointed as Store Keeper cum Accountant in one of the branches of the Madhya Pradesh Khadi and Village Industries Board, a body corporate constituted under the M.P. Khadi and Village Industries Act, 1959. His services were terminated by an Order dated 23.9.1964 after giving one month 's notice. The termination Was challenged before the Labour Court as amounting to retrenchment because it hat been passed without complying with provisions of the M.P. Industrial Relations Act, 1960, the charge sheet that was given to him on 27.4.1964 was based on false and baseless grounds and no enquiry was held prior to removal. The appellant claimed reinstatement with full wages. The Respondent Board contested the application contending that the Board was not an industry and that neither the M.P. Industrial Relations Act, 1960 nor the applied to it. The Labour Court held that the termination of the services of the appellant amounted to retrenchment, set aside the Order of termination and directed reinstatement with half salary from the date of the Order till reinstatement. The Board preferred a revision. The Industrial Court affirm ed the order of the Labour Court and dismissed the revision petition. 642 The Board filed a petition under article 225 and 227. The High Court allowed the writ petition, quashed the order of the Industrial Court and remitted the case to it to decide the facts afresh. The Industrial Court after taking fresh evidence, again held in favour of the appellant, reaffirming its previous decision to reinstate the appellant. The Board again moved the High Court, which set aside the orders of the Industrial Court and the Labour Court on the ground that they acted without jurisdiction. The appellant appealed to this Court by certificate which was resisted by the Board on two grounds: (i) that it is not an industry within the meaning of the Act and (ii) that it does not employ more than 100 persons. Allowing the appeal of the appellant employee, ^ HELD: 1. The order passed by the High Court is set aside and that of the Labour Court and the Industrial Court are restored. [651 B C] 2. The M.P. Industrial Relations Act, 1960 is a separate Act in the State of Madhya Pradesh to regulate the relations of employees in certain matters and makes provisions for settlement of Industrial disputes. Any concern, to become an industry, has to satisfy the definitions of "industry" and "undertaking" as contained in sections 2(19) and 2(33) thereof. Such concerns have to satisfy yet another condition to attract the provisions of the said Act which relates to the number of the employees the concern employs. Notification No. 9952 XVI dated 31st December, 1960 issued under sub 8. (3) of 8. 1 of the Act, makes the provisions of the Act applicable only to an undertaking in the industries specified in the Schedule wherein the number of the employees on any date during Twelve months preceeding or on the date of the notification or any day thereafter was or is more than one hundred. In the instant case, the evidence on record admits of no doubt that the Board employed more than 100 persons. [645 A H; 646 A 4; 647 C] 3. One of the functions of the Board under 8. 14 of the M.P. Khadi and Village Industries Act 1959 is "to support, encourage, assist and carry on Khadi and Village Industries and in the matters incidental to such trade or business". The evidence shows that the Board supplies raw wool to Co operative Societies, so 643 that the Societies can engage themselves in useful work. The Society after weaving raw wool, convert them into spun blankets and supply them to the Board. The blankets so spun are not the properties of the Societies. They have to be given back to the Board. The blankets so supplied from various centres to the Board, have necessarily to be sold in the open market. This act of sale would clearly come within the definition of the word 'trade ' or 'business ' as contemplated in Section 2(19) of the Act. m e conclusion is, therefore, irresistible that the Board engages itself in the business of selling blankets. It has, therefore, to be held that the Board is an 'industry ' within the meaning of the Act. [650 B D; 651 A B]

The appellant joined the Indian Civil Service in 1933 and was thereafter allotted to the State of Assam. On July 29, 1964 he was appointed as Secretary to the Government of India "until 'further orders". On June, 20, 1966 he received a letter from the Cabinet Secretary advising him that in relation to the question of building up a higher level of administrative efficiency it had been decided by the Government that the appellant should revert to his parent State, or proceed on leave preparatory to retirement, or he should agree to accept some post lower than that of Secretary to the Central Government. After the appellant had made representations to the Cabinet Secretary and the Prime Minister, he received another letter from the Cabinet Secretary in September, 1966. affirming the Government 's decision that the appellant 's services would be placed at the disposal of his parent State of Assam or he could proceed on leave preparatory to retirement. The appellant challenged these orders by a writ petition under article 226 of the Constitution on the ground that the orders were violative of article 311(2). The High Court dismissed the petition and a Letters Patent appeal was also rejected. It was contended on behalf of the appellant that the reversion of the appellant to the Assam Service amounted to a reduction in his rank on the ground that he held a higher post in the Government of India and there was no post equal to it under the Assam Government; the post of the Chief Secretary in the Assam Government was equal to the Post of a Joint Secretary in the Government of India and his reversion would therefore indirectly mean a reduction in his rank and also in his emoluments because the highest post in Assam did not carry a salary equal to that of a Secretary in the Government of India. He also contended that the letters from the Cabinet Secretary spoke of his unsatisfactory work and cast a stigma on him; his reversion must, therefore, be treated as a penalty and as the procedure laid down under article 311(2) was not followed, the orders of the Government of India could not be sustained. On the other hand it was contended on behalf of the Government that the appellant was on deputation and the deputation could be terminated at any time; that his orders of appointment clearly showed that the appointment was "until further orders" and he had no right to continue in the Government of India if his services were not required; his reversion to his parent State did not amount either to any reduction in rank or a penalty and the orders were therefore quite legal. HELD : allowing the appeal, It was clear on the facts that the appellant was being reduced in rank with a stigma upon his work without following the procedure laid down in article 311(2) of the Constitution. [229 G H] 221 As a Secretary to the Central Government the appellant held a tenure post, which was normally for a period of five years and he could expect to continue in that post until 29th July, 1969. Nothing turned upon the words of the notification "until further orders" because all appointments to tenure posts had the same kind of order. He was not therefore on a deputation which could be terminated at any time. The fact that it was found necessary to break into the appellants 's tenure period close, to its end must be read in conjunction with the three alternatives offered to him and these clearly demonstrated that the intention was to reduce him in rank by sheer pressure of denying him a Secretaryship. [229 B D] The letter addressed to the appellant in June, 1966, containing the ,Offer of a lower post in Delhi was a clear pointer to the fact of his (]emotion. It clearly told him that his reversion was not due to any exigency of service but because he was found wanting. This was not a case of reverting the appellant to Assam at the end of a deputation or tenure and the final alternative that he could retire clearly showed that the Government was bent upon removing him from his present post. As there was no post in the Assam State Service carrying the same emoluments as those of a Secretary to the Central Government, on the facts of the present case the appellant 's reversion to Assam meant a reduction in rank within the meaning of article 311(2). [228 A B; 229 F]

The respondent imported 2,000 drums of mineral oil and the appellant confiscated 50 drums and imposed a personal penalty. The appeal of the respondent was dismissed by the Central Board of Revenue. The respondent filed a petition under article 226 of the Constitution in the Calcutta High Court. A Full Bench of the High Court held that the High Court had no jurisdiction to issue a writ against the Central Board of Revenue in view of the decision in the case of Saka Venkata Subbha Rao. However, as the Central Board of Revenue had merely dismissed the appeal against the 564 order of the appellant, the High Court further held that it had jurisdiction to pass an order against the appellant. The appellant came to this Court after obtaining a certificate. Held that the appellant had merged into that of the Central Board of Revenue and hence no order could be issued against the appellant. It is only the order of the appellate authority which is operative after the appeal is disposed of. It is immaterial whether the appellate order reverses the original order, modifies it or confirms it. The appellate order of confirmation is as efficacious as an operative order as an appellate order of reversal or modification. As the appellate authority in this case was beyond the territorial jurisdiction of the High Court, it was not open to the High Court to issue a writ to the original authority which was within its jurisdiction. Election Commission, India vs Saka Vankata Subba Rao, , A. Thangal Kunju Mudatiar vs M. Venkitachalam Poiti, ; , Commissioner of Income tax vs M/s. Amritlal Bhogilal & Co. [1959] section C. R. 713 and Madan Gopal Rungta vs Secretary to the Government of Orissa, (1962) (Supp.) 3 S.C.R. followed. Barkatali vs Custodian General of Evacuee Property, A. 1. R. , overruled. Joginder Singh Waryam Singh vs Director, Rural Rehabilitation, Pepsu, Patiala, A. 1. R. 1955 Pepsu 91, Burhanpur National Textile Workers Union vs Labour Appellate Tribunal of India at Bombay, A. I. R. , and Azmat Ullah vs Custodian, Evacuee Property, A.I.R. 1955 All 435, approved. State of U. P. vs Mohammed Nooh, ; , distinguished.

Appeal No. 135 of 1961. Appeal by special leave from the judgment and order dated January 3, 1961, of the Rajasthan High Court, Jodhpur, in Civil Writ Petition No. 1 of 1961. M. K. Nambiar, R. K. Garg, D. P. Singh, M. K. Ramamurthi and section C. Agarwala, for the appellant petitioner. H. N. Sanyal, Additional Solicitor General of India, C. C. Kasliwal, Advocate General of Rajasthan, Khan Singh and D. Gupta, for the respondents. April 14. The Judgment of the Court was delivered by WANCHOO, J. These two connected matters arise out of an order approving a scheme framed under Chap. IV A of the , No. IV of 1939, (hereinafter referred to as the Act) and will be disposed of together. The brief facts necessary for present purposes are these. The appellant was plying a bus between Jaipur and Ajmer on a permit granted to him for three years by resolution of the Regional Transport Authority, Jaipur, dated December 16/17, 1958. In August, 1960, the State Government promulgated rules under section 68 1 of the Act, called the Rajasthan State Road Transport Services (Development) Rules, 1960 (hereinafter called the Rules). The Rules were framed for carrying out the purposes of Chap. IV A of the Act and provided inter alia for framing of schemes, hearing of objections, determination and payment of 980 compensation, and other incidental matters. A draft scheme was published on September 7, 1960, for taking over the Jaipur Ajmer route. The appellant made objections to the draft scheme within the time allowed by the notification thereof. The State Government appointed the Legal Remembrancer to hear and decide the objections under r. 7 of the Rules. It appears that in the meantime an application was made under article 226 by some bus operators before the Rajasthan High Court challenging the constitutionality of section 68 D of the Act and the legality of the Rules framed by the State Government. This application was dismissed and the High Court inter alia decided while considering r. 7(6) that it was not open to the officer hearing the objections to cancel the draft scheme and seems to have held that there was no such power even under section 68 D(2) of the Act. This decision was given on November 9, 1960. The draft scheme came up for consideration before the officer appointed to hear objections on November 21,, 1960. An application was made before him that the appellant should be permitted to give evidence on points of fact which were narrated in the application in order that the officer may be in a position to decide the objections justly. This application was rejected by the officer on the ground that there was no provision in the Rules for recording of evidence of witnesses. The matter then came up for consideration on November 23, 1960. On that date another application was made in which it was said that the appellant wanted to lead evidence to show that the draft scheme must be rejected in its entirety, and it was contended that the view taken by the Rajasthan High Court to the effect that it was not open to the officer to cancel a draft scheme was incorrect. This application was also rejected by the officer with the observation that he was bound hand and foot by the decision of the Rajasthan High Court and if there was anything wrong in the interpretation given by the High Court the remedy lay elsewhere. Thereafter the officer gave a hearing to the appellant in the sense that he heard arguments on behalf of the appellant and approved the draft scheme 981 by his order dated December 7, 1960. The approved scheme was then published on December 12,1960. On January 9, 1961, the Regional Transport Authority informed the appellant that his permit was cancelled, as from January 26, 1961, or such later date from which the buses of Rajasthan State Roadways begin to operate on the above mentioned route. In the meantime, the appellant unsuccessfully moved the Rajasthan High Court, and his prayer for leave to appeal to this Court was also rejected. The appellant then applied for special leave to appeal to this Court which was granted; and that is how the matter has come up before us. Two main points have been urged before us on behalf of the appellant, namely, (i) the officer was wrong in the view he took that it was not open to him to reject the draft scheme in its entirety, and (ii) the officer was wrong in holding that he could not take evidence, whether oral or documentary, and all that he had to do under section 68 D of the Act was to hear arguments on either side. It is contended that in view of these two wrong decisions of the officer his approach to what he had to do in dealing with objections under section 68 D was quite incorrect. , with the result that there was no effective hearing of the objections and any approval given to the scheme in these circumstances is liable to be set aside and the appellant is entitled "to be heard" in the real sense in which those words were used in section 68 D (2). Section 68 D (2) with which we are concerned is in these words: "The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State transport undertaking to be heard in the matter, if they so desire, approve or modify the scheme. " The view taken by the Rajasthan High Court in its decision of November 9, 1960, seen is to be that this section does not justify what it called the cancellation of the scheme. We are of the opinion that this view is 982 not correct. What section 68 D(2) provides is that after hearing the parties, the State Government may approve or modify the draft scheme. This in our opinion clearly implies that the authority which has to approve or modify the scheme has the power also, if it so thinks fit, not to approve the scheme at all. What is before the. State Government under section 68 D (2) is a draft scheme. That sub section provides that the State Government may approve or modify the scheme; that does not mean that the State Government is bound to approve the scheme with or without modifications. An authority to which power has been given to approve or modify some proposal has certainly in our opinion the power to say that it will not approve the proposal at all, for the words "may approve" on a reasonable interpretation include "may not approve". If a person may approve he is not bound to approve. Up to the stage when the hearing takes place under sub s.(2) the draft scheme is merely a proposal before the State Government and it will only become effective if it approves of it with or without modifications. But this power clearly implies the power to say that it does not approve the draft scheme at all; and if it says that, the draft scheme will stand rejected and the State Transport Undertaking may have to submit another scheme for approval. When section 68 E speaks of cancellation it refers to a scheme already approved under section 68 D(3), and in that con. text the word "cancellation" is properly used. But the fact that section 68 E provides for the cancellation of a scheme which has already been approved, does not mean that it is not open to the State Government under section 68 D(2) to say, after hearing the objections, that it does not approve the scheme at all which is put up before it as a draft for approval. We are therefore of the opinion that under section 68 D(2) it is open to the State Government to say after hearing objections that it does not approve of the draft scheme at all, in which case the draft scheme will stand rejected and the State Transport Undertaking may have to frame a fresh scheme in accordance with the procedure provided in Chap. The officer therefore was wrong 983 in holding that he had no power to reject the scheme in the sense that he could withhold approval of it altogether, though we may add that he came to that conclusion because of the earlier decision of the Rajasthan High Court. As for r. 7(6) of the Rules it is in similar terms as section 68 D(2) and must therefore mean what we have said above with respect to section 68 D(2). If, however, by the use of the word "shall" in r. 7(6) in place of the word "may" which appears in section 68 D(2) the intention is to curtail the power of the officer hearing the objections, the rule would be bad as going beyond what is provided in section 68 D(2). But we do not think that the use of the word "shall" in r. 7(6) makes any difference, for the word "shall" had to be used there according to the rules of English Grammar and has no greater force than the word "may used in section 68 D(2) The learned Additional Solicitor General who appeared for the State of Rajasthan did not contest that what we have said above was the true position in section 68 D(2) and r. 7(6). (ii) The next question is the scope of the hearing under section 68 D(2). The officer has held that the scope of the hearing is confined only to hearing of arguments and no more, and that is why he rejected the prayer of the appellant for leading evidence, whether oral or documentary. Now it has been held by this Court in Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation (1) that a State Government acts as a quasi judicial tribunal when giving a hearing under section 68 D. The purpose of the hearing is that the State Government has to satisfy itself that the opinion of the State Transport Undertaking formed under section 68 C, namely that the scheme is for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, is correct. The objections are all made to show that the scheme does not provide for an efficient, adequate, economical and properly coordinated road transport (1) [1959] Supp. 1 S.C.R. 319 984 service. In order therefore to arrive at the conclusion that the draft scheme provides for a transport service of this nature, the State Government as a quasi judicial authority may require materials to come to that conclusion. A hearing before a quasi judicial authority does not merely mean an argument; it may in proper cases include the taking of evidence, both oral and documentary. It seems to us that in the circumstances of the provision contained in section 68 D(2) and the purpose of the hearing thereunder, taking of evidence, whether oral or documentary, that maybe desired to be produced by either party, may be necessary before the State Government can arrive at a just conclusion with respect to the objections to the draft scheme. We cannot therefore agree with the officer that there is no warrant for taking any evidence at all at a hearing under section 68 D(2). It seems to us, considering the nature of the objections and the purpose for which the hearing is given, that production of evidence, either oral or documentary, is comprehended within the hearing contemplated in section 68 D(2). The officer therefore was wrong in loading that it was not open to the parties to produce evidence before him and they were confined only to submit their arguments on the basis of the draft scheme on the one hand and their written objections on the other. We may however point out that the production of evidence (documentary or oral) does not mean that the parties can produce any amount of evidence they like and prolong the proceedings inordinately and the State Government when giving the hearing would be powerless to check this. We need only point out that though evidence may have to be taken under section 68 D(2) it does not follow that the evidence would be necessary in every case. It will therefore be for the State Government, or as in this case the officer concerned, to decide in case any party desires to lead evidence whether firstly the evidence is necessary and relevant to the inquiry before it. If it considers that evidence is necessary, it will give a reasonable opportunity to the party desiring to produce evidence to give evidence relevant to the enquiry and within reason and it 985 would have all the powers of controlling the giving and the recording of evidence that any court has. Subject therefore to this over riding power of the State Government or the officer giving the hearing, the parties are entitled to give evidence either documentary or oral during a hearing under section 68 D(2). In view of what we have said above the approach of the officer in this case was wrong on both the points. He was wrong in his view that it was not open to him to reject the scheme in toto and withhold approval altogether. He was also wrong in the view that it was not open to him to take evidence, whether oral or documentary, though of course, as we have said above the control on this evidence must be in him. The result of this wrong approach to our mind has certainly been that the appellant did not get a hearing to which he was entitled under section 68.D(2). In the circumstances we must hold that the approval of the scheme was without a proper hearing under section 68 D(2), which, even though arguments were heard in full in this case, vitiates the approval given to the scheme by the officer concerned. We therefore allow the appeal and set aside the order of the officer concerned approving the scheme and direct that the draft scheme be reconsidered by the said officer or such other officer as the State Government may appoint hereafter after giving a hearing in the light of the observations we have made above. The appellant will get his costs from the State of Rajasthan. In the circumstances no order is necessary in the writ petition, which is hereby dismissed. We pass no order as to costs in the writ petition. Petition dismissed.

By section 68 D(2) of the , "The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter, it they so desire, approve or modify the scheme". The appellant 's objections to the draft scheme in question were heard by the Legal Remembrance, appointed by the State Government to hear such objections, under r. 7(6) of the Rajasthan State Transport Services (Development) Rules, 1960, framed under section 68 1 of the Act. The appellant applied to the said Officer for permission to give evidence in order that he could show that the entire scheme ought to be rejected. His applications were rejected by the Officer holding that the Rules did not provide for recording of evidence and that according to a decision of the Rajasthan High Court, dated November 9, 1960, section 68 D(2) of the Act did not empower him to cancel the draft scheme in its entirety. He, therefore, heard the arguments addressed on behalf of the appellant and approved the scheme. After moving unsuccessfully the Rajasthan High Court, the appellant appealed to this Court by special leave, Held, that the Officer was in error on both the points. Section 68 D(2) of the Act clearly implies that the authority which has to approve or modify the scheme, has also the power, if it thinks proper, to disapprove the scheme altogether. The words " may approve" in the section, properly construed, must also include "may not approve". The use of the word "shall" in r. 7(6) of the Rules instead of the word "may", which is otherwise similar in its terms to section 68 D(2) of the Act,.can make no difference. In hearing objections under section 68 D(2) of the Act, the State Government or its Officers act as a quasi judicial tribunal and regard being to the nature of the objections and the purpose of the hearing thereunder, there can be no doubt that production of evidence, both oral and documentary, is clearly contemplated by the section. 979 Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation, [1959] Supp. 1 S.C.R. 319, referred to. Bat that does not mean that the parties can produce any amount of evidence merely to prolong the proceeding. It is for the State Government or the Officer to decide whether the evidence sought to be adduced is necessary and relevant to the enquiry and, if so, they will have all the powers that a court has of controlling the giving and recording of such evidence. Where a draft scheme is disapproved under section 68 D(2) and thus stands rejected, any fresh scheme that may have to be framed, must be framed according to the procedure prescribed by Ch. IVA of the Act.

The appellant was convicted for offences punishable under sections 3(1) and 4(1) of the Suppression of Immoral Traffic in Women and Girls Act, 1956. The special police officer conducted a raid on the appellant 's house which was being kept as a brothel and recovered marked currency notes from the appellant. He took with him two persons to witness the search but they were not inhabitants of the locality as required by section 15(2) of the Act. After the search he prepared a document. It did not satisfy the requirements of section 15(1) as it did not contain any ground on which he formed the belief that an offence under the Act was being committed in the premises and that a search of the premises with warrant cannot be made without undue delay. On the question whether the trial was illegal as there was a violation of section 15(1) and (2). HELD: The Act being a special one a search under the Act must comply with section 15. Investigating agencies ought not to disregard the special safeguards such as those in section 15(1) and (2) provided by the Legislature, but the trial itself would not be vitiated if there was noncorrosive with such directions unless thereby some prejudice is caused to the accused. The court however, has to be very careful in weighing the evidence where there has been such non observance of the provisions. [803 G H; 805 E G] (a) Though the recording of reasons may be a necessary condition for making a search, jurisdiction to make a search is not derived therefrom. The power to search is conferred by statute. Therefore, omission to record reasons before the search or even thereafter in a proper way, would not by itself affect the validity of the search. [803 A B] State of Rajasthan vs Rehman, [1960] 1 S.C.R. 991, followed. (b) Under section 5(2) Criminal Procedure Code, all proceedings including investigation of offences under any law, have to be conducted in accordance with the procedure laid down in the Code except to the extent of any specific provision contained in a special Act. Under the Suppression of Immoral Traffic Act there Tim no provision dealing with the effect of contravention of section 15. Therefore, the law with regard to the effect of an irregular search under section 165 of the Code would apply. Where a trial has taken p1ace, under section 537 of the Code a defect or an illegality in the investigation has no bearing on the result of the trial unless the irregularity or illegality is Shown to have brought about a miscarriage of justice. Since the non observance of the provisions of section 15(2) of the Act in the present case, is a mere irregularity, the conviction of the appellant could not be set aside as it was not shown that the irregularity caused any failure of justice. [804 B C; 805 B, E, H 806 B] 800 H.N. Rishbud & Inder Singh vs State of Delhi, ; and State of U.P.v. Bhagwati Kishore Joshi, ; , followed. Delhi Administration vs Ram Singh, ; and Public Prosecutor, Andhra Pradesh vs U. Nageswararao A.I.R. 1965 A.P. 176, referred to.

The Regional Transport Authority granted to the respondent a permit to operate a bus on a route. The grant was set aside by the State Transport Appellate Tribunal on appeal filed by another applicant. The order of the S.T.A. was quashed by a Single Judge of the High Court in a writ petition filed by the grantee from the R.T.A. When the matter went before the Letters Patent Bench it was observed that since only the grantee from the R.T.A. had a valid permit it was not possible to grant any permit to the appellant before the S.T.A. pending the disposal of the Letters Patent Appeal as only one operator could be allowed on the route. In the petition for special leave to appeal to this Court under article 136 against the interlocutory order, on the question of the jurisdiction of the High Court to recognise the grantee from the R.T.A. when his permit was cancelled by the S.T.A., HELD: This Court would not go into the matter at this stage because the appeal itself was pending before the High Court and all that the Bench had done was to give effect to the order of the Single Judge pending disposal of the appeal. [497 A B]

The question for determination in the appeal was whether the Union of India was entitled to levy and recover arrears of excise duty on cotton cloth for the period April 1, 1949, to March 31, 1950, payable by the respondent, a cloth mill in the State of Rajasthan, under the Rajasthan Excise Duties Ordinance, 1949. After the coming into force of the Indian Constitution and the extension of the Central Excise and Salt Act, 1944, and the rules framed thereunder to the State of Rajasthan by section II of the Finance Act of 1950, the duty in respect of cloth manufactured on and from April 1, 1950, became payable under that Act. The appellant Union, however, claimed that as a result of the agreement entered into on February 25, 1950, by the President of India with the Rajpramukh of Rajasthan under article 278 and article 295 of the Constitution, the Union of India became entitled as from April 1, 1950, to claim and recover all arrears of excise duties which the State of Rajasthan was entitled to recover from the respondent before the Central Excise and Salt Act, 1944, was extended to Rajasthan. Notice having been accordingly served on the respondent demanding payment of the outstanding amount of Rs. 1,36,551 12 as payable by it, it moved the High Court under article 226 of the Constitution. On a reference by the Division Bench which heard the matter in the first instance, the Full Bench finding in favour of the respondent held that article 277 was a complete refutation of the said claim by the Union and article 278 and the said agreement were overridden by it. Held, that the provisions of articles 277 and 278 of the Con stitution, properly construed, leave no manner of doubt that article 277 was in the nature of a saving provision, subject in terms to the provisions of article 278, permitting the States to levy a tax or duty which, after the Constitution could be levied only by the centre. But article 277 had to yield place to any agreement in respect of such taxes and duties made between the Union Government and the Government of a Part B State under article 278. Since there could not be the least doubt in the instant case that the agreement between the President and the Rajpramukh of Rajasthan conceded to the Union the right to levy and collect the arrears of the cotton excise duty in Rajasthan, the High Court was wrong in taking a contrary view of the matter.

The petitioner was the owner of a bus being run as a stage carriage. On 24.7.78 while carrying passengers this bus met with an accident, as a result of which one passenger died. The Motor Accident Claims Tribunal held that the accident took place due to the negligence on the part of the driver and awarded compensation of Rs.56,800 to the legal representatives of the deceased. It further held that the liability of the insurer to indemnify the petitioner was limited to Rs.5,000 as the policy specifically limited the insurer 's liability to what had been provided by section 95(2)(b)(ii)(2) and (4) of . The appeal filed by the Petitioner was dismissed by the High Court. In the Special Leave Petition before this Court, it was contended on behalf of the petitioner that the insurer was liable to indemnify the petitioner upto a limit of Rs.75,000 under section 95(2)(b)(ii)(2) of the and that the further limit mentioned in section 95(2)(b) (ii)(4) was inapplicable to the case of the petitioner. Dismissing the Special Leave Petition, this Court, HELD: 1. Having regard to the as it stood prior to the amendments by Act 47 of 1982. the insurer was liable to pay upto Rs.10,000 for each individual passenger where the vehicle involved was a motor cab and upto Rs.5,000 for each individual passenger in any other case. [1161F] 2.1 Section 95(2)(b) as it existed before its amendment in 1982 1150 dealt with the limits of the liability of an insurer in the case of motor vehicles in which passengers were carried for hire or reward or by reason of or in pursuance of a contract of employment. [1155H; 1156A] Sub clause (i) of section 95(2)(b) provided that in respect of death of or injury to persons other than passen gers carried for hire or reward, a limit of Rs.50,000 in all was the limit of the liability of the insurer. [1156A] Under sub clause (ii) there were two specific limits on the liability of the insurer in the case of motor vehicles carrying passengers. The first limit related to the aggre gate liability of the insurer in any one accident. It was fixed at Rs.50,000 in all where the vehicle was registered to carry not more than thirty passengers, at Rs.75,000 in all where the vehicle was registered to carry more than thirty but not more than sixty passengers and at Rs.1,00,000 in all where the vehicle was registered to carry more than sixty passengers. The other limit was in respect of each passenger, which provided that subject to the limits afore said as regards the aggregate liability, the liability extended up to Rs.10,000 for each individual passenger where the vehicle was a motor cab and Rs.5,000 for each individual passenger in any other case. Neither of the two limits can be ignored. [1156B D] 2.2 The limit prescribed in section 95(2)(b)(ii)(4) cannot be said to be only the minimum liability prescribed by law. The amount mentioned in that provision provides the maximum amount payable by an insurer in respect of each passenger who has suffered on account of an accident. This is a fair construction of section 95(2) of the Act as it existed at the time when the accident took place. [1156E] 2.3 After the 1982 amendment the liability of the insur er in respect of each individual passenger is Rs.15,000 as against Rs.10,000 in the case of each individual passenger where the vehicle was a motor cab and Rs.5,000 for each individual passenger in other cases, prior to the said amendment. This shows that Parliament never intended that the aggregate liability of the insurer mentioned in sub clauses (1), (2) and (3) of section 95(2)(b)(ii) would be the liability of the insurer even when one passenger had died or suffered injury on account of an accident. Such liability was always further limited by sub clause (4) of section 95(2)(b)(ii). [1159F G] 2.4 In the instant case, the vehicle in question being a bus carrying passengers for hire or reward registered to carry more than thirty 1151 but not more than sixty passengers, the limit of the aggre gate liability of the insurer in any one accident was Rs.75,000 and subject to the said limit the liability in respect of each passenger was Rs.5,000. [1156D] 2.5 As the law stands today the insurer is liable to pay upto Rs.15,000 in respect of death of any passenger or any injury caused to him. Having regard to the large number of motor vehicle accidents which are taking place on roads and also to the fact that a large number of public service vehicles carrying passengers are involved in them, limit of Rs.15,000 fixed in the case of each passenger appears to be still meagre. [1159E; 1160E] 3. The following suggestions in respect of certain provisions of the are made for considera tion of the Central Government: (i) The limits of compensation in respect of death or permanent disablement payable in the event of there being no proof of fault have become unrealistic in view of inflation ary pressures and consequent loss of purchasing power of the rupee. These limits should, therefore, be raised adequately. [1162B C] (ii) There is no justification for continuing the dis tinction between public service vehicles and other vehicles and also between passengers and third parties with regard to the liability of the insurer to pay compensation. Even among the public service vehicles a distinction is made between vehicles used as goods carriages and those used for carrying passengers. It may be considered whether it is necessary to continue these distinctions and also whether the limits of liability of the insurer should not be altered suitably. [1162D E] (iii) The society and the State which are responsible for a large number of motor vehicles being put on road should carry also the responsibility of protecting the interests of innocent victims of hit and run motor accidents which are increasing in number. The amounts of Rs.5,000 and Rs.1,000 provided as compensation in respect of death or grievous hurt respectively appear to be highly inadequate. It may be considered whether these figures should not be increased in an appropriate manner. [1162F G] (iv) The expression "legal representative" has not been defined in the Act and it has led to serious doubts in the course of judicial proceedings. It may be considered whether it would not be advisable to define the said expression for purposes of making claims before Claims 1152 Tribunals where death has resulted from a motor vehicle accident in the same way in which the English Law has been amended. [1163A C] Motor Owners Insurance Co. Ltd. vs Jadavji Keshavji Modi Northern India Transport Insurance Co., [1971] Supp. SCR 20; Manjusri Raha & Ors. B.L. Gupta & Ors. ; , ; P.B. Kader & Ors. vs Thatchamma and Ors., AIR 1970 Kerala 241; K.R. Sivagami, Proprietor, Rajendran Tourist vs Mahaboob Nisa Bi and others, ; Madras Motor and General Insurance Co. Ltd. by its successor: The United Fire and General Insurance Co. Ltd. and others vs V.P. Ba lakrishnan and others, ; New India Assurance Co. Ltd. vs Mahmood Ahmad and others, ; Shiva hari Rama Tiloli and another vs Kashi Vishnu Agarwadekar and others, ; National Insurance Co. Ltd. vs Shanim Ahmad and others, ; Tara Pada Roy vs Dwijendra Nath Sen and others, ; Noor Mohammad and another vs Phoola Rani and others, ; Raghib Nasim and another vs Naseem Ahmad and others, and Gujarat State Road Transport Corporation, Ahme dabad vs Ramanbhai Prabhatbhai and Another, ; , referred to.

The Government of Madhya Pradesh proposed to pass scheme No. 9 M; regarding the nationalisation of road transport. The scheme was approved and notified in the State Gazette, after the appellant 's objections made under section 68D of the , had been heard. The appellant flied a writ petition in the High Court challenging the Government 's rejection of his objections, and also impeach ing the scheme as published in the gazette. The High Court dismissed the petition holding that, as Chapter IV A of the Act has been included as Entry 125 in the Ninth Schedule to the Constitution, the scheme cannot be challenged. Dismissing the appeal the Court, HELD: 1. Though Chapter IV A of the Act is not open to any constitutional challenge, it is open to any aggrieved person to challenge any scheme on the ground that it is not a valid scheme as required by the provisions of Chapter IV A of the Act. [87 C D] 2. Under section 68D of the Act the only scope for objection is whether the scheme is efficient and adequate and not whether exclusion is complete or partial. [91 A B] Objections are confined only to the four grounds of efficiency, adequacy, economy and proper coordination of road transport service. There was never any objection to the Scheme on exclusion related to any of these grounds. [90 D E] Capital Multipurpose Co operative Society Bhopal and Ors. vs The State of M.P. & Ors. ; , ap plied. H.C. Narayanappa & Ors. vs The State of Mysore & Ors., ; , referred to:

The appellant company ran a narrow gauge railway between Shahdara and Saharanpur. As it operated partly within the Municipal area of Saharanpur the Municipal Board of that place sought to subject railway stores and materials brought within the municipal area to terminal tax as provided by the Rules framed under the United Provinces Municipalities Act, 1916, as amended by Act 1 of 1918. The exemption from terminal tax given to railway stores and materials by item 2 to Schedule B of the said rules was denied to the appellant company on the ground that it was a 'tramway ' and not a 'railway '. The company had been originally registered in 1905 under the , (Act 11 of 1886); in 1907 the whole of the Indian Railways Act, 1890, (Act 1 of 1890) with the exception of section 135 had been extended to the company by the Governor General in Council. The Company 's claim that it was a 'railway ' entitled to the exemption under item 2 of Schedule B aforesaid, was rejected by the Municipal authorities as well as in appeal, by the Additional District Magistrate. The company therefore filed a writ petition before the High Court which was rejected. By special leave appeal was filed to this Court. It was contended on behalf of the appellant that : (i) in the absence of any special definition contained in the provisions granting the exemption in question, the expression 'railway ' occurring in item 2 of Schedule B of the Terminal Tax Rules must bear the commonly understood meaning of a "carriage of passenger send goods, on iron rails"; (ii) by virtue of the definition in section 311(2) of the Government of India Act, 1935, and the provision corresponding to it in the Constitution viz., article 366(20) the appellant 's system though registered under the Tramway.% Act, was a railway, (iii) the mere fact that section 135 of the Railways Act had not been applied to the appellant 's system was not a decisive factor against the appellant as assumed by the High Court. It was not in dispute that appellant 's system had all the features of a railway. HELD:Neither the Municipal Act nor the Terminal Tax Rules give any special definition of the expression 'railway ' and there is nothing in the said Act or Rules to indicate that the word 'railway ' in item 2 of Schedule B is used only to refer to a 'railway ' registered under the Rail ways Act or to limit the generality of the expression 'railway ' in any way. Under those circumstances, if the appellant was a 'railway ' in fact. , as commonly understood there did not appear to be any controversy on the point it would be a railway notwithstanding the fact that it was rep. C.I./67 3 244 gistered as a 'tramway ' under the Tramways Act. The legislature itself had applied the provisions of the Railway Act to the appellant, and the 'appellant also satisfied the definition of a 'railway ' under the Government of India Act, 1935 and the Constitution. [254B D] If the appellant was a 'railway ' otherwise, the mere fact that the provisions of section 135 of the Railways Act had not been applied to it, was of no consequence. [251H] Blackpool and Fleetwood Tramroad Company vs Thornton Urban Council, L.R. [1907] 1 K.B.D. 568, Thornton Urban Council vs Blackpool and Fleetwood Tramroad Company, L.R. [1909] AC. 264 and Tottenham Urban Council vs Metropolitan Electric Tramways, Ltd., , referred to.

The appellant being the highest bidder at a public auction got the right to collect the toll in respect of ferry for crossing the river of Piprighat for the year 1954. The practice upto 1954 was to allow the licensee to collect the toll from every stage carriage bus. Till March of the year 1954 only privately owned stage carriage buses used to ply on the route. Thereafter the route was taken over by the Roadways department of the State of Uttar Pradesh. The applicant was informed inter alia that no toll was leviable on the Roadways Vehicles and was asked to pay the monthly installments of the license fee without making any deduction therefore consequent upon the exemption of the Roadways buses from tolls. The point for consideration inter alia is whether the 106 appellant was bound to allow the state carriage buses of U.P. Government to cross the river by ferry without collecting any toll. Held, that the notification No. 252/IX 209/(10) dated March 16, 1925 exempts a vehicle crossing the river on 'public or district board service ', and it could not be said that plying motor buses by way of commercial activity is running it on a public service. The vehicles of the Roadways department of the Government of Uttar Pradesh crossing over ferries cannot be regarded as crossing on public service. It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensur ing the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public, but it does not cease to be a commercial activity if it is run with profit motive. The vehicles of the Roadways crossing the river cannot be exempted under the Notification of March 15,1925. Held, further that activities undertaken in the exercise of the sovereign power of the state or of Governmental functions are undoubtedly to be regarded as public services but a pure business undertaking though run by the Government cannot be classified as public service. An activity however beneficial to the people and however useful cannot reasonably be regarded as public service and cease to be a commercial undertaking if it is of a type which may be carried on by private individuals and is carried on by Government with a distinct profit motive. By reason of the fact that a commercial undertaking is owned and run by the State, it does not ipso facto become a "public service".

No. 71 of 1958. 23 Writ Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights. section K. Venkataranga Ayengar and section J. section Fernandez, for the petitioner. B. R. L. Iyengar, for respondent No. 1. R. Gopalakrishnan and T. M. Sen, for the respondent No. 2. 1961. April 17. The Judgment of the Court was delivered by SARKAR, J. This petition under article 32 of the Constitution raises a question of the constitutional validity of section 3(3)(a) of the Mysore House Rent and Accommodation Control Act, 1951 (Mysore XXX of 1951). Shortly put, that provision enables an authority set up by the Act to select any Government, local authority, public institution, officer of a government, local authority or public institution or any other person as the tenant of a vacant house. Under the Act the owner is bound to let the premises to the tenant so selected. The petitioner, for whom a tenant had been selected under this provision, challenges its validity on the ground that it puts an unreasonable restriction on his fundamental right to property under article 19(1)(f) of the Constitution and is outside the protection of el. (5) of that article. The petitioner had a building in respect of which he had made some sort of arrangement with one Misri Lal for the making of certain alterations in it and for letting it thereafter to him for the purpose of a boarding house. He later gave a notice as required by section 3(2)(a) of the Act to respondent No. 2, the Controller, who had the authority under section 3(3)(a) to select a tenant, that the house had become vacant. Thereupon respondent No. 2 considered applications for the tenancy of the house of which there were two. One was from Misri Lal mentioned above and the other was from respondent No. 1, who was a private indivi dual carrying on business of a boarding house keeper. Respondent No. 2 selected respondent No. 1 as the 24 person to whom the house should be let by the petitioner. He fixed the rent at Rs. 350 per month which was the rent demanded by the petitioner. There does not appear to have been any specification of the terms of the tenancy and no question as to such terms arises in this case. The petitioner was dissatisfied with this decision as he wanted that the premises should be let to Misri Lal, and appealed to the District Judge under section 15 of the Act. The District Judge affirmed the decision of respondent No. 2. The petitioner then went up in revision to the High Court under section 17 of the Act but the High Court refused to interfere. Before the District Judge and the High Court the petitioner bad contended that Misri Lal was a more suitable tenant than respondent No. 1. But such contention was rejected. Having failed in the High Court he has now challenged the Act itself by the present petition. The, only question is whether section 3(3)(a) imposes an unreasonable 'restriction on the petitioner 's right to property. The validity of no other part of the Act has been challenged in this petition. The provision challenged is in these words: section 3(3)(a). On receipt of the intimation under sub section (2), the Controller shall, taking into consideration any representation made by the landlord and after making such inquiry as he considers necessary, select the State Government or the Central Government or the Government of any other State in India, or any local authority or any educational or other public institution or any officer of any Government, authority or institution, aforesaid, or any other person (hereinafter referred to as the allotted), to be inducted as a tenant in the house and direct the landlord by a written order (hereinafter referred to as the allotment order ') to let the house to such allotted at such rent as shall be specified in the allotment order and to deliver possession of the house to the allotted on such date as shall be specified in the said order: Provided that before making an allotment order in favour of any authority or person, other than 25 the State Government, the Central Government or the Government of any State in India or a local authority, the Controller shall consider any representation of the landlord about the suitability of the proposed tenant and shall not allot the house to any person who, in the opinion of the Controller, is an unsuitable tenant: The petitioner does not contend that the provision in so far as it allows the Controller to select as a tenant a Government, local authority, public institution or any of the officers mentioned, imposes any unreasonable restriction on the right to property. As we understood learned counsel for the petitioner, it was conceded that selection of such tenant would constitute a public purpose and the restriction thereby imposed, would be reasonable. It would therefore appear that it is not contended that the selection of a tenant by the Controller would by itself amount to imposing an unreasonable restriction on the right to property. We do not think that such a contention, if made, would have been well founded. It is clear that the Act deals with houses which are vacant. It does not deprive an owner of his right to live in his own house. It provides for vacant houses not needed for the use of the owner being made available for the use of others who are without accommodation. The Act was necessary because of the scarcity of housing. It was, therefore, passed to regulate the letting of houses and to control rent and also to prevent unreasonable eviction: see the preamble to the Act. Does the Act then by leaving it to the Controller to select any person other than a Government, local authority, public institution or an officer of any of these as the tenant, impose an unreasonable restriction on the right to property? We do not think it does so. If the Controller could validly choose a Government, a local authority or any institution which as we have said is not disputed it can make no difference that instead of such a tenant the Controller chooses a private individual as a tenant. The idea of this provision is that people in need should be 4 26 found accommodation. Persons in need of accommodation are the public and therefore serving their need, would be serving a public purpose. An individual would be a member of the public and as the accommodation available can be let out to one, a restriction caused by selection of a member of the public would be one in the interest of the general public. Such a restriction is furthermore not unreasonable. It is enforced only when the owner does not want the house for his own use. It can then make no reasonable difference to the owner if a private individual is chosen as the tenant. The Act further makes ample provision to see that the tenant chosen is suitable. By providing the appeal to the District Judge and a right to move the High Court in revision, full safeguard has been given to secure that an unsuitable person is not foisted on an owner as his tenant. It is true that the Act does not define who would be a suitable person but we do not think that a definition was required. Any man of experience would know who is a suitable tenant. Further., the owner has been given the right to have the suitability of the tenant chosen examined by the highest court. In the explanation to section 3(3)(a) certain persons have been declared to be unsuitable tenants. We are unable to accept the contention of the learned counsel for the petitioner that the result of this explanation is that all others are suitable. The explanation only shows that the persons coming within the description are unsuitable. As to whether others would be suitable or not would have to be decided on the merits of each. Thedecision as to the suitability of a tenant is not to be controlled by the explanation at all except to the extent of making certain persons unsuitable as tenants and taking it out of the discretion of the authority concerned to go into the question of their suitability If the Act had left it to the house owner to choose a tenant, then there was every likelihood of its purpose being defeated. It would be easy for the owner to make secret arrangements for his own gain in creating a tenancy. The tenant would obviously be 27 in a disadvantageous situation in view of the scarcity of housing, in the matter of bargaining for the house. He could easily be made to yield to the terms imposed by the owner who has a much superior bargaining situation. If scope was left for this kind of thing to happen, then the entire object of the Act would have been defeated. The Act intends to avoid this situation and hence the provision for a power in the Controller to select a tenant for the owner. Neither do we think that any objection to this pro. vision can be based on article 14 of the Constitution on the ground that it provided no guidance as to how a tenant is to be chosen and so enabled the authority concerned to make an arbitrary choice. This contention is not in any event open to the petitioner, an owner, for the provision does not enable any discrimination being made between one owner and another. If a tenant had challenged the validity of the provision relying on article 14, which is not the case here, we do not think that challenge would have been of substance. There is, in our view, ample guidance given to the authority as to how to choose a tenant. The tenant has first to be suitable. All persons are entitled to apply for being selected as tenants and so all have equal chance to get the house. The choice will have to be made from amongst the applicants and that choice will depend on an examination of the comparative merits of their claims. Further, the owner has a right to have his views in the matter being given due consideration by the authority selecting the tenant. Again, the ultimate decision would be a judicial decision, and if required, of the highest tribunal in the State. We, therefore, think that the challenge to the Act is ill founded. In the result we dismiss this petition. The petitioner will pay the costs of the appearing respondent. Petition dismissed.

Section 30(3)(a) of the Mysore House Rent and Accommodation Control Act, 1951, authorised the Controller to select any Government, local authority, public institution, officer of a government, local authority or public institution or any other person as a tenant of a vacant house. Under the Act the owner was bound to let the house to the tenant so selected. The petitioner was the owner of a house for whom the controller selected a tenant under these provisions. He challenged the constitutionality of section 3(3)(a) in so far as the selection of "other persons" was authorised on the grounds that: (i) it put an unreasonable restriction on his fundamental right to property and (ii) it offended article 14 of the Constitution as it provided no guidance for choosing the tenant and enabled the controller to make an arbitrary choice. Held, that section 3(3)(a) of the Act was valid and did not violate article 14 or 19(1)(f) of the Constitution. An individual was a member of the public and the restriction caused by his selection was in the interest of the general public. The restriction was not unreasonable. It was enforced only when the owner did not want the house for his own use. It could make no reasonable difference to him whether an individual was selected or government, local authority, public institution or any officer of any of these was selected. The Act made provision for selection of a suitable tenant. This was further secured by providing for an appeal to the District judge and thereafter a revision petition to the High Court. There was ample guidance given in the Act to the Controller to choose a suitable tenant. Every one had been given a right to apply for being selected as a tenant; and the owner bad been given the right to have his views also considered. The ultimate decision was a judicial decision, and if required, of the highest tribunal in the State.

The appellant landlord executed a lease in respect of the disputed premises in favour of respondent 2 for three years as far back as 1 4 1942. In 1948, a suit was brought by the appellant for eviction of the tenant for non payment of rent on the ground of conversion of the user of the premises. The suit for possession was however dismissed but a decree dated 31 11 1948 for arrears of rent was passed and it was held that Laxmi Bank was the real tenant. Subsequently, the Bombay High Court ordered the Bank to be wound up and in the winding up proceedings, the High Court appointed an Official Liquidator who on 16 2 1961 sold the tenancy rights to respondent No. 1. The sale was confirmed by the High Court on the same date and as a result thereof respondent No. 1 took possession the premises on 24 2 1961. On 5 1 1961, the landlord appellant filed an application under the Delhi Rent Control Act for eviction of Laxmi Bank. On 31 7 1961, a decree for eviction was passed in favour of the appellant. On 22 1 1963, respondent No. 1 filed a suit for declaration that he was a tenant of the landlord appellant. The suit was dismissed for non prosecution on 5 5 1964 and an application to set aside the ex parte order was also dismissed and the appeal against that order also failed. Thereafter respondent No. 1 filed an application under Section 25 of the Delhi Rent Control Act for recalling the warrant of possession issued by the Court in pursuance of the decree dated 31 7 1961 in favour of the appellant. The Rent Controller allowed it on 20 12 1966. An appeal to the Rent Controller Tribunal was ordered by order dated 25 11 1968 in favour of the appellant. A second appeal filed by respondent No. 1 to the High Court was allowed in his favour and the Rent Controller 's order allowing recalling of the warrant of possession was restored. Hence the appeal by special leave by the landlord. Allowing the appeal, the Court ^ HELD: 1. The application of respondent No. 1 under Section 25 of the Delhi Rent Control Act is clearly barred by the principle contained in order IX Rule 9 Civil Procedure Code. It was the appellant who brought the previous suit which resulted in a decree for eviction of the tenant on 31 7 1961 a date when the Ist respondent had already taken possession of the premises by virtue of transfer made by the Official Liquidator. There is nothing to show that respondent No. 1 was a tenant within the meaning of Delhi Rent Control 445 Act so as to maintain an application under section 25 of the Act, when in fact he was an unlawful sub lessee. [447A, E, F G] Suraj Ratan Thirani and Ors. vs Azamabad Tea Co. and Ors. ; ; applied. The language of section 14(b) of the Delhi Rent Control Act is wide enough not only to include any sub lease but even an assignment or any other mode by which possession of the tenanted premises is parted. In view of the wide amplitude of section 14 (b), it does not exclude even in involuntary sale. [448D E] In the instant case, the official Liquidator had merely stepped into the shoes of Laxmi Bank which was the original tenant and even if the official liquidator had transferred the tenancy interest to respondent No. 1 under the order of the Court, it was on behalf of the original tenant. It was undoubtedly a voluntary sale which clearly fell within the mischief of section 14 (1) (b) of the Delhi Rent Control Act. Assuming that the sale by the Official Liquidator was an involuntary sale, then it undoubtedly became an assignment as provided for by section 14 (b) of Delhi Rent Control Act. [448A C] Krishna Das Nandy vs Bidhan Chandra Roy, A.I.R. 1959 Cal. 181 Overruled.

The petitioners in these three writ petitions challenged the operative provisions of the Orissa Private Lands of Rulers (Assessment of Rent) Act, 1958 and the, Rules framed thereunder. These petitioners possess 302 private lands in the State of Orissa, which before the impugned Act were not subjected to the payment of rent, but which were assessed by the Revenue Officers in conformity with the Rules framed under the Act. The petitioners claims a writ in the nature of certiorari quashing the said orders of assessment. The Act was passed by the Orissa Legislature because it was thought expedient to provide for assessment of rent with respert to the private lands of Rulers in the State of Orissa. The main object of the Act is to authorise the levy of rent in respect of the private lands of persons included in the definition of the word "Ruler" prescribed by section 2(h) of the Act. Section 2(h) defines a "Ruler" as meaning the Ruler of a merged territory in the State of Orissa and includes his relatives and dependants. The petitioners attacked the pro visions of the Act mainly on the ground that they contravened article 14 of the Constitution. Held:(i) that section 6 of the Act does not contravene article 14 of the Constitution for the reason that fair and equitable tests have been laid down under section 6 of the Act for determining the rent which should be assessed in respect of the private lands of the Rulers. In the present case the legislature had prescribed the method of determining the rent payable on the private lands; and the relevant factors specified by section 6 appear to be just and substantially similar to the considerations which are generally taken into account at the time of survey settlement for determining the proper revenue assessment on ryotwari lands. The problem posed by the requirement to levy assessment on these private lands had to be dealt with by the legislature on an ad hoc basis. The settlement of rent and assessment introduced by the Act had been made applicable to these lands for the first time, and so, these lands could not be treated as comparable in every respect with the lands which were governed by the rates prescribed under the previous settlement. (ii)In considering the validity of a statute under article 14 the wellestablished principle is that the legislature can make class legislation, provided the classification on which it purports to be based is rational and has a reasonable nexus with the object intended to be achieved by it. If the party fails to show that the said classification is irrational, or has no nexus with the object intended to be achieved by the impugned Act, the initial presumption of constitutionality would help the State to urge that the failure of the party challenging the validity to rebut the initial presumption goes against his claim that the Act is invalid. In all cases where the material adduced before the court in matters relating to article 14 is unsatisfactory, the court may have to allow the State to lean on the initial presumption of constitutionality. (iii)There is no substance in the contention that the impugned Act is void because the definition of the word "Ruler" is inconsistent with Art, 366(22) of the Constitution. There is no doubt that the definition of the word "Ruler" prescribed by section 2(h) of the Act is wider than that prescribed by article 366(22) of the Constitution. 303 The definitions prescribed by article 366 are intended for the purpose of interpreting the articles in the Constitution itself, unless the context otherwise requires. The whole object of defining the word "Ruler" in the Act is to specify and describe the lands in respect of which the operative provisions of the Act would come into play. It is in that connection that the word "Ruler" has been broadly defined in an inclusive manner. (iv) The impugned Act is entirely outside the purview of article 31 of the Constitution as it has not purported either to deprive the Rulers of their property, or to acquire or requisition the said property. It is a simple measure authorising the levy of a tax in respect of agricultural lands. Pratap Kesari Deo vs The State of Orissa, A.I.R. 1961 Orissa 131, relied on.

These appeals were preferred by tenants against the judgment of the High Court in civil revisions. Respondent Mahabir Prasad had executed a registered deed dated 8th December, 1966 with regard to premises in question, giving the benefits arising out of the said properties to his grandsons and their mother Smt. Sulochana Devi. He informed the tenants to make payment of rent to Smt. Sulochana Devi in terms of the said deed. Later, Mahabir Prasad executed a registered deed of cancellation dated 3rd November, 1970, cancelling the aforesaid deed dated 8th December, 1966 and debarring the grandsons and their mother from the right to realise rent and informed the tenants about the said deed of cancellation. Subsequently, Mahabir Prasad instituted suits in the Court of the Judge, Small Causes against the appellant tenants for recovery of arrears of rent and their eviction on the ground that in spite of their being informed of the deed of cancellation, they had not paid rent to him. The appellants contended that the deed dated 8th December, 1966, could not be unilaterally cancelled by Mahabir Prasad, and the rent claimed by him had already been paid by them to Smt. Sulochana Devi. The title of Mahabir Prasad to realise rent was disputed by the appellants who had contended that the suit involving a question of title was not cognizable by a Court of Small Causes. The Judge, Small Causes, decreed the suits. The appellants filed revisions before the District Judge who dismissed the same. Further revisions filed by the appellants in the High Court were also dismissed. The appellants moved this Court for relief by special leave against the Judgments of the High Court. PG NO 238 PG NO 239 Allowing the appeals, the Court, HELD: The provisions of section 23 of the Provincial Small Cause Courts Act (the Act) were clearly attracted in these cases and the plaints in the cases ought to have been returned for presentation to a Court having jurisdiction to determine the title. It is true that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant, and that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes, in this behalf could not be res judicata in a suit based on title, but it cannot be gainsaid that in enacting section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties. On facts, these are cases in which~ in order to do ' complete justice between the parties the plaints ought to have been returned for presentation to a court having jurisdiction to determine the title so that none of the parties was prejudiced. [242E, H, 243A C, F] Judgments and decrees of the courts below were set aside and the Judge, Small Causes was directed to return the plaints of the cases for presentation to the appropriate Court as contemplated by section 23 of the Act. [243F G]

Where at the hearing of an appeal filed by special leave from a decision of the High Court in a Writ Petition filed there under article 226 of the Constitution of India against an order of the Payment of Wages Authority, the Court considered that there was some force in the contention relating to the jurisdiction of the Authority concerned but did not decide that question on the view that as there had been no failure of justice the Court would not interfere under its powers under article 136, and the appellant applied for a review of the judgment 15 114 Held, that wide as are the powers of the Supreme Court under article 136 of the Constitution, its powers are discretionary and though special leave had been granted the Court was not bound to decide the question of jurisdiction of the inferior tribunal or court where the decision of the inferior tribunal or court had been taken to a higher tribunal which undoubtedly had jurisdiction and from the decision of which the special leave was granted if on the facts and circumstances of the case it came to the conclusion in dealing with the appeal under that Article that there was no failure of justice. A. M. Allison vs B. L. Sen, ; , relied on.

The appellants in execution of a decree passed in their favour for possession over a house obtained possession thereof on July 22, 1951. The order for delivery of possession was made without notice to and in the absence of the respondent. The respondent made an application in the Executing Court under sections 47, 144 and 151, Code of Civil Procedure for setting aside the ex parte order of delivery and for redelivery of possession of the house to him or in the alternative, for an order to the appellants for giving facilities for removing the moveables from the house. The Executing Court upheld the contention of the appellant that 76 592 the respondent 's application was not maintainable. On appeal by the respondent the High Court held that the Executing Court had no jurisdiction to order the eviction of the respondent because of the provisions of the Mysore House Rent and Accommodation Control Order, 1948, which was in operation on the date of eviction and under sections 9 and 16 of which certain restrictions were placed on the eviction of tenants. On appeal to this Court by special leave, the appellants contended, inter alia, as they did in the High Court also , that the Mysore House Rent Control Order of 1948 was repugnant to the provisions of the (IV of 1882), which became applicable in the State of Mysore by Part B States (Laws) Act, 1951 (Act III of 1951), which came into force on April 1, 1951 ; and therefore the House Control Order could not operate on the rights of the parties on the day when the Executing Court made the order for delivery of possession to the appellants, i. e., July 9, 1951, or when delivery was actually given i.e., on July 22, 1951. Held, that the came into force only when it was extended by notification dated September 12, 1951, under section 3 of that Act, i.e., from October 1, 1951, and therefore the Mysore House Rent and Accommodation Control Order, 1948, was not repealed as from April 1, 1951, when the Part B States (Laws) Act, 1951, came into force and was in force when the possession was delivered. It was then an existing law which was saved by article 372 of the Constitution and remained unaffected by article 254, and the question of repugnancy to the (Act IV of 1882) did not arise in this case. M/s. Tilakram Rambaksh vs Bank of Patiala, A.I.R. 1959 Punj. 440, considered. Section 47 of the Code of Civil Procedure was applicable to the proceeding out of which this appeal has arisen because the question whether the decree was completely satisfied and therefore the court became functus officio was a matter relating to execution, satisfaction and discharge of the decree. Ramanna vs Nallaparaju, A, I. R. and J. Marret vs Mohammad Shirazi and Sons, A.I.R. 1930 P. C. 86, considered. Where the court was not aware of the statutory restriction by which the execution of a decree was prohibited and passed an ejectment decree against a tenant the Executing Court could not execute the decree and any possession given under an ex parte order passed in execution of such a decree could be set aside under section 151 of the Code of Civil Procedure. K.Muhammad Sikri Sahib vs Madhava Kurup, A.I.R. 1949 Mad. 809, considered. 1 The contentions of the appellant based on the ground of res judicata and estoppel were without any force. Sections 9(1) and 16 of the House Rent Control Order placed restrictions on 593 the power of the Court to execute the decree and ignoring them was not merely an error in the exercise of jurisdiction.

The petitioners, who are jagirdars of Marwar, sought to impugn the constitutional validity of sections 81 to 86 of the Marwar Land Revenue Act which embody a scheme for fixing fair and equitable rents payable by cultivating tenants on the ground that they infringed their fundamental rights under articles 14, 19(1)(f) and 31(2) of the Constitution. Their contentions were that after the merger of Marwar in the State of Rajasthan the Act had become discriminatory as it applied only to the jagirdars of Marwar and not to the entire body of jagirdars of the State of Rajasthan, that settlement of rents made with reference to different areas on different dates on the basis of previous ten years ' average of collections might result in different rates of rent and lead to inequality such as is prohibited by article 14, that the Act deprived the landlords of their right to realise rents from the tenants freely and without hindrance and invaded their right to hold property guaranteed by article 19(1)(f) of the Constitution, that the power conferred on the Settlement Officer by section 86 of the Act to enforce the rates of rent retrospectively is an invasion of their right to hold property and amounts to acquisition of property without compensation and that it confers absolute and uncontrolled discretion on the Settlement Officer and is an encroachment on the right to hold property. Held, repelling these contentions, that article 14 only prohibits unequal treatment of persons similarly situated and a classification might properly be made on territorial basis, if that was germane to the purposes of the enactment and no tenancy legislation can be held to contravene the article solely on the ground that it does not apply to the entire State. Before the petitioners could succeed it was 532 incumbent on them to show that conditions obtaining in other parts of the State were similar to those in Marwar and this they had failed to do. Bowman vs Lewis ; , referred to. That the provision in the Act for assessment of rents with reference to a portion of the area to which the Act applies is not a contravention of article 14. To hold otherwise would be to make it impossible for any State to carry on its settlement operation. Biswambhar Singh vs The State of Orissa and others; , , and Thakur Amar Singhji vs State of Rajasthan, ; , applied. That the fundamental right to hold property in the case of a, landlord in respect of his tenanted lands is no more than the right to receive reasonable rents and no legislation which has for its object the settlement of fair and equitable rents can contravene article 19 (1)(f) of the Constitution even though it may give such rents retros pective operation. That the provision in section 86 of the Act empowering the Settlement Officer to give retrospective operation to the rates of rent does not contravene article 19(1)(f) and, therefore, no question as to whether such a provision is not of a regulatory character and as such prohibited by article 19(5) can at all arise. That it is well settled that a law which regulates the relation of a landlord with his tenant is not one which takes property within the meaning of article 31(2) even though it has the effect of reducing his rights. Consequently, there is no contravention of article 31(2) of the Constitution. Thakur Jagannath Baksh Singh vs United Provinces, [1943] 6 F.L.J. 55: A.I.R. 1943 F.C. 29 and Thakur Jagannath Buksh vs United Provinces, L.R. 73 I.A. 123, relied on. That section 86 of the Act does not confer an absolute and uncon trolled discretion on the Settlement Officer and such power as it gives does not constitute an encroachment on the right to hold property within the meaning of article 19(1)(f) of the Constitution. Thakur Baghubir Singh vs Court of Wards, Ajmer and another; , , explained and distinguished.

The assessee challenged the jurisdiction of the Income tax Officer, Special Survey Circle, Bangalore, to assess income tax and super tax on his income accruing prior to April 1, 1950, in the State of Mysore, on the ground that the proviso to section 13 of the Indian Finance Act, 1950, by virtue of which he was exercising his power was ultra vires and void as the Parliament had no pow or to make a law authorising any officer appointed under the Indian Income tax Act to levy tax under the Mysore law prior to the Constitution. It was contended (i) that on general constitutional principles the Union Parliament had no power to make a law having retrospective effect with reference to pre Constitution period, (ii) that the Parliament was also prohibited by article 277 from making a law authorising such officers as in the present case to mot in the State of Mysore: Held, (repelling the contentions) (i) that the Parliament had such power vide the judgment delivered in Case No. 296 of 1951, (ii) that while article 277 authorises the continued levy of taxes lawfully levied by the Government of the State before the commencement of the Constitution and their application to the same purposes as before, even after the Constitution came into force, there is nothing in the article to warrant any implication that such taxes should continue to be levied, assessed and collected by the same State authorities as before the Constitution and there is nothing in article 277 to preclude Parliament making a law providing for the levy and collection of income tax and super tax under the Mysore Act 'through authorities appointed under the Indian Income tax Act.

Appeal No.110 of 1961. Appeal by special leave from the judgment and order dated October 14, 1960, of the Allahabad High Court in First Appeal from Order No. 41 of 1959. C. B. Agarwala, Rameshwar Nath, section N. Andley, J. B. Dadachanj and P. L. Vohra, for the appellant. K. B. Choudhuri, A. K. Kirty and Ratna Rao, for respondent No. 1. 870 section P. Sinha and M. I. Khawaja, for respondents Nos. 2, 3 and 4. H. N. Sanyal, Additional Solicitor General of India and G. C. Mathur, for respondent No. 5. Naunit Lal, for respondent No. 7. 1961. April 11. The, Judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave is directed against the judgment dated October 14, 1960, of the High Court of Judicature at Allahabad confirming the order passed by the Civil Judge, Agra, directing the Official Receiver to take possession of the property of the appellant. This case illustrates how the enforcement of an interlocutory order appointing a Receiver made in the interest of all the parties concerned could be obstructed and the object of the order itself be defeated by dilatory tactics adopted by one party or other. At Agra, there were three spinning mills and one flour mill, all of which together were described as the Johns Mills; and, originally, the John family or their predecessors were the owners of all these mills. At the time the present proceedings were initiated, other persons had acquired interest therein. The following persons were the joint owners of the mills: (1) Hiralal Patni, the appellant, and Munni Lal Mehrt. 19/40th share; (2) Gambhirmal Pandiya Private Ltd. 8/40th share; (3) Messrs. John & Co . 11/40th share; and (4) I.E. John . 2/40th share. Seth Loonkaran Sethiya, respondent No. 1, advanced large amounts to Messrs. John & Co. on the security of its business assets and stocks. On April 18, 1949, the said Sethiya filed 0. section No. 76 of 1949 in the Court of the Civil Judge, Agra, against John & Co. for the recovery of the amount due to him by sale of the assets of the said company. To that suit the partners of Messrs. John & Co., for convenience described as "defendants 1st set", and the partners of Messrs. Johns Jain & Co., who were for convenience described as "defendants 2nd set", were made parties. Pending the suit, the said Sethiya filed an application, under O. XL, r. 1, Code of Civil 871 Procedure, for the appointment of a Receiver. By an order dated May 21, 1949, the learned Civil Judge appointed two joint Receivers and directed them to run the three spinning mills. Hiralal Patni filed an appeal against that order to the High Court at Allahabad, and the said Court by its order dated August 22, 1949, modified the order of the Civil Judge confining the order of appointment of Receivers only to the share of Messrs. John & Co. in John Jain Mehre & Co. Loonkaran Sethiya made another application in the Court, of the Civil Judge for the appointment of a Receiver for the property of Hiralal Patni and the learned Civil Judge by his order dated December 1, 1951, directed the Receivens to take possession of the appellant 's share in the mills also Against this order an appeal was preferred to the High Court and the operation of the said order was stayed pending the disposal of the appeal. On April 5, 1954, the Civil Judge passed a preliminary decree against the defendants therein directing them to deposit the decree 'amount in court within the prescribed time, and in default the plaintiff was given a right to apply for a final decree for sale of the business assets of the defendants. The decree also gave a right to apply for a personal decree in case the sale proceeds were not sufficient to discharge the decree. The preliminary decree directed that the Receivers should continue on the property until discharged. Hiralal Patni preferred a appeal to the High Court against the said preliminary decree and applied for interim stay of its operation. On August 23, 1955, the High Court discharged the Receiver,,; appointed by the learned. Civil Judge, and appointed another Receiver in their place. On March 25, 1955, the learned Civil Judge prepared a scheme for running the mills, and the parties preferred appeals against that scheme to the High Court. The said appeals were compromised and under the term , of the compromise the parties agreed to take different mills on lease for a period of three years from the Receiver. On January 14, 1956, the Receiver executed a lease in respect of the flour mill in favour of Hiralal Patni for a 872 period of three years. Under the lease deed it was agreed that he should deliver the demised premises to the Receiver upon the expiry of the term. In due course, on March 14, 1956, a final decree was made in the suit for the sale of the properties, but the final decree was silent in regard to the Receiver appointed earlier. On September 29, 1958, Hiralal Patni applied to the High Court for extension of the lease by three years. On January 16, 1959, the High, Court rejected the application on the ground that the lease was only a stopgap arrangement and that it was for the Receiver to make a fresh arrangement for the future under the supervision and directions of the Civil Judge, Agra. On January 17, 1959, the Receiver applied to the Civil Judge for instructions whether he should proceed at once to dispossess the appellant. On notice, Hiralal Patni raised various objections and claimed that he was entitled to remain in possession of the property as its owner. The learned Civil Judge disallowed his objections and held that the Receiver derived his authority from the preliminary decree, and directed the Receiver to lease out the said flour mill by auction for a period of two years. Pursuant to that order, an auction was held, and the appellant was the highest bidder, and he paid the lease amount and executed a formal lease deed. Not satisfied with the order of the Civil Judge, Hiralal Patni preferred an appeal to the High Court. The High Court in an elaborate judgment considered the contentions raised on behalf of Hiralal Patni and dismissed the appeal. Hence the present appeal. Learned counsel for the appellant raised before us the following three contentions, which the appellant, unsuccessfully raised before the High Court as well as before the Civil Judge. (1) On a true construction of the relevant orders the Receiver has no power to dispossess the appellant in such a way as to prevent him from working his flour mill. (2) After the passing of the final decree, though the Receiver may continue for the purpose of accounting and discharge of debts, he cannot exercise any powers in respect of the rights of the parties. And (3) in any view, as the appellant 873 acquired a right under a lease deed and continued in possession after its expiry, he could be dispossessed only by a suit and not by a summary procedure. The first question turns upon the construction of the relevant orders. The Civil Judge appointed two joint Receivers by an order dated May 21, 1949. It it not necessary to consider the said order as the final order that governed the rights of the Receiver and the parties was that made by the High Court on appeal on August 22, 1949. After considering the contentions of the parties, the High Court came to the conclusion that a Receiver should be appointed to be in charge of the entire property, immoveable and move. able, of the defendants 1st set for its protection and preservation. The order of the High Court described the John family as defendants 1st set to the suit, and defendant 5, Hiralal Patni, defendant 6, Munnilal Mehra, and Messrs. John Jain Mehra & Co. as defendants 2nd set. This order was confined only to the properties of defendants 1st set. The High Court further proceeded to state: "In the finance agreement in plaintiffs favour, the plaintiff was not given any right to enter into possession on non payment or to run the mills. There being no right given to the plaintiff to enter into possession and manage the mills or to have a receiver appointed, a receiver can be appointed only under Order 40, rule 1 of the Code of Civil Procedure. " Adverting to the contention raised by the defendants that a Receiver could not be appointed to run the mills, the High Court observed: "In view of the order that we propose to pass today we do not want to go into that question. In case the mills are not run under the order of the Collector under the United Provinces Industrial Disputes Act, or by the partners we propose to give the parties permission to move this court. In case we decide to appoint a receiver to run the mills we shall then consider whether a receiver can or cannot be appointed for the purpose of running the mills. " Then the High Court stated: 110 874 "We have already set out the circumstances which in our opinion make it necessary that a receiver should be appointed to take charge of the property of defendants first set whether under the finance agreement of July 1948 there was a charge created on the property, moveable and immoveable, or not. The Receiver will not interfere with the running of the mills except under express orders of the Court and to the extent when it becomes necessary by reason of the value of the security being jeopardized by any action of the defendants. " Then the High Court pointed out that the Collector had the power under section 3 of the Industrial Disputes Act to make arrangements for the running of the mills. Finally the High Court observed: , "It may be necessary from time to time to give directions to the receiver. The parties may also want portions 'of this order to be clarified or other directions obtained. The lower court may give such directions to the receiver or to the parties as it may consider just and proper. In case further directions are necessary or the receiver or the parties are not satisfied with the directions given they may move this court for further direction. " Shortly stated, the High Court confirmed the order of the Civil Judge appointing the Receivers and directed them to take charge of the properties of defendants 1st set. The High Court expressly prohibited the Receivers from interfering with the running of the mills except under express orders of the court, for at that time it did not think it necessary to direct the Receivers to do so. It may be recalled that the Receivers were not appointed for the flour mill of the appellant, Hiralal Patni, as he was one of the defendants belonging to the 2nd set. Learned counsel for the appellant contends that this order did not put the mills in the possession of the Receivers and that the Receivers were given only a supervisory control over the share of the defendants 1st set in the mills. Whatever terminology may have been used, the fact remains that the Receivers were put in charge of the entire property 875 of defendants 1st set, which includes their share in the mills, though it was equally made clear that the Receivers could not directly run the mills without further directions in that regard. The Civil Judge by his order dated December 1, 1951, directed the Receivers to take possession of 'the share of defendants 2nd set also. The operative portion of that order reads: "For all these reasons I have come to the conclusion that it is just and convenient that a receiver should be appointed over the share of the defendant 11 set, and I order that the present receivers who are in possession of the defendant 1st set share should also be appointed receivers over the share of the defendant 11 set. As for the prayer allowing the receivers to run the mills the question of running of the mills is already before the High Court as is shown by the compromise dated 8th September 1950. It is not known what has happened after this compromise. The receivers are directed to seek the direction of the Hon 'ble High Court on the question of the running of the mills so that there may be no chance of conflicting of orders passed by this court and the Hon 'ble High Court, on this matter. The receivers will not interfere with the running of the mills except under express orders of this court and to the extent when it becomes necessary by reason of the value of the security being jeopardized by any action of the persons running the Mills. The receivers are appointed over the share of the defendants II set only, for the purpose of preservation and protection and realization of the rent." This order runs on the same lines indicated by the High Court in its earlier order in respect of the share of defendants 1st set. What is to be noted is that under this order the Receivers were prohibited from ' running the mills except under the specific ' orders of the said court or of the High Court. On April 5, 1954, a preliminary decree was made in the suit, and under that decree the defendants were directed to deposit a sum of Rs. 18,00,152 in court within the prescribed 876 date and in default the plaintiff was given a right, to apply for a final decree for the sale of the assets of the spinning mills. There was a further direction that in case the nett sale proceeds of the said property were found insufficient to satisfy the plaintiffs claim, the plaintiff would get a personal decree against defendants 1st set and defendants 2nd set for the balance of his claim. The Receivers were directed to continue on the property until discharged. Under the preliminary decree, the plaintiff became entitled not only to the sale of the assets of the spinning mills but also to a personal decree against all the defendants for recovering any balance that might still be due to him after the sale of the said properties. What is more, the Receivers were expressly directed to continue till they were discharged, and as the decree did not specify the powers of the Receivers, it must be held that they continued to exercise such powers as they had under the previous, orders of the courts dated August 22, 1949 and December 1, 1951. On March 25, 1955, the learned Civil Judge, Agra, prepared a scheme for the running of the three spinning mills, and the parties preferred two appeals to the High Court against the scheme. On July 22, 1955, a compromise was effected between the parties in the aid two appeals and the appeals were disposed of in terms of the compromise by order of the High Court dated August 23, 1955. As the terms of this order are rather important in the context of the contentions raised before us, we would read the relevant portions hereof: Clause 1. That the aforesaid parties have without prejudice to their rights and litigation between them have after deliberate consideration and as a special effort to make arrangements for running the Johns Mill have decided that the three spinning Mills and Flour Mill situate in Agra should be run by the parties in accordance with the terms and conditions set forth below. (vi) That the lease shall be granted by the receiver on terms and conditions approved by the Court. 877 (ix) If any lessee shall fail to run the Mill after delivery of possession or pay the lease money or fail to carry out the arrangements arrived at between the parties for a period of three months, the receiver shall take possession of the Mills and with the per mission of the court shall lease out that particular mill to any of the parties excepting the party in default who may offer the highest bid in accordance with the orders passed by the Civil Judge in this matter. Clause, 4. . . . . . The arrangement embodied in this document is only for the purpose of working the mills by the petitioners. Nothing contained in this document will affect the rights and obligation of the parties which are or may be the subject matter of suit No. 76 of 1949 or in any litigation between the parties and notwithstanding anything contained herein but subject :however to the express provision in the preceding paragraph of this clause it will be open to the petitioners to seek their remedies in any manner provided by law, and without prejudice to the rights of the parties to obtain a stay order from the Hon 'ble High Court or any other Court. " What is the effect of this order? Learned counsel for the appellant contends that this order embodies an internal arrangement between the defendants for running the mills and that it does not in any way enlarge the scope of the orders dated August 22, 1949, and December 1, 1951, under which the Receivers were appointed. We do not think that the scope of the orders is so limited. The combined effect of the said earlier orders was that the Receivers should take possession of the entire properties of the two sets of defendants. But the Receivers were not given the power to run the mills without specific directions to that effect by the court. The Civil Judge by his order dated March 25, 1955, evolved a scheme for running the mills, and by that order he laid down the conditions and directed the Receivers to advertise calling for applications from persons, including the Govern ment, who were willing to run the mills. This order 878 was only confined to the three spinning mills. The compromise order in the appeals covered also the flour mill. Though different mills were to be run by different defendants by obtaining lease deeds, that was only a mode evolved for running the mills tinder the supervision of the court. Under the compromise, the leases were to be executed in favour of the Receiver. It also provided that in case the lessees did not carry out the terms of the lease, the Receiver should take possession of the mill in respect of which default was committed and, with the permission of the court, should lease out the mill to any of the defendants other than the defaulting party. The clauses saving the rights of the parties obviously refer to their rights which were the subject matter of the suit and they could not have any reference to the terms agreed upon under the compromise order. Under the compromise order, the courts, though by consent, gave directions for running the mills which they left out for future consideration in their earlier orders. The result, was that under the earlier orders, all the properties of the defendants were put in possession of the Receivers, and under the compromise order, the Receiver was directed to run the mills under the agreed scheme. Pursuant to the terms of the compromise order, on January 14, 1956, the Receiver executed a lease in favour of the appellant in respect of the flour mill for a period of three years, and under that lease deed the appellant got possession from the Receiver and agreed "To yield up all the demised premises with all fixture, improvement and replacements thereto in good and tenantable repair and condition in accordance with the lease covenants in that behalf herein contained upon the expiry of the term hereby created or the sooner determination of these presents as herein provided. " Whatever ambiguity there may have been, this lease deed dispels it, for under the lease deed the appellant admits the legal possession of the Receiver, takes a lease under him, and agrees to put him back in possession after the expiry of the lease. On September 29, 1958, the appellant again applied to the court for extension of the lease for three more years, thereby 879 accepting his possession under the Receiver, though the court on January 16,1959, dismissed that application on the ground that the lease was only a stopgap arrangement and that it was for the Receiver to make a fresh arrangement for the future under the supervision and directions of the Civil Judge under whose preliminary decree he derived authority. It is manifest from the aforesaid orders that the Receiver was put in possession of the entire property of the defen dants, that he was not empowered to run the mills personally, that by subsequent orders he was directed to lease out the mills to the parties in the manner prescribed and that under the final order he was to take over possession and make other arrangements for running the mills. In the premises, we find it very difficult to accept the argument of learned counsel that the Receiver was not put in possession of the mills, but the mills continued to be in the possession of tile defendants. We hold on a construction of the relevant orders that the flour mill of the appellant was also put in the possession of the Receiver and that the appellant was running the said mill under the compromise formula. The second contention of learned counsel for the appellant is that the Receiver appointed in the suit ceased to be a Receiver qua the rights of the parties when the final decree was made by the Court. This contention leads us to the consideration of the question whether a Receiver appointed in a suit ceases to be such automatically on the termination of the suit. Neither section 51(d) nor Order XL of the Code of Civil Procedure prescribes for the termination of the office of receivership. We must, therefore, look for the solution elsewhere. Some of the authoritative text books on receivers may usefully be consulted in this connection. In Halsbury 's Laws of England, 3rd edn., Vol. 32 (Lord Simonds), at p. 386 under the heading "Duration of appointment by court", the following statement occurs: "When a receiver is appointed for a limited time, as in the case of interim orders, his office determines on the expiration of that time without any 880 further order of the court, and if the appointment is until judgment or further order ' it is brought to an end by the judgment in the action. The judgment may provide for the continuance of the receiver, but this is regarded as a now appointment. If a further order of the court, though silent as to the receivership, is inconsistent with a continuance of the receiver, it may operate as a discharge. When a receiver has been appointed on an interlocutory application without any limit of time, it is not necessary to provide for the continuance of his appointment in the final judgment. The silence of the judgment does not operate as a discharge of the receiver or determination of his powers. So, also the appointment of a receiver generally by the judgment in an administration action need not be continued by the order on further consideration. " In Kerr on Receivers, 12th edn., in chapter XII under the heading "Discharge of a Receiver", the legal position is explained thus: "The appointment of a receiver made previously to the judgment in an action will not be superseded by it, unless the receiver is appointed only until judgment or further order." In High on the Law of Receivers, 4th edn., the following observations appear at p. 985: , "The functions of a receiver usually terminate with the termination of the litigation in which he was appointed. And when the bill upon which the appointment was made is afterwards dismissed upon demurrer, the duties of the receiver cease as between the parties to the action. . . And although as between the parties to the litigation his functions have terminated with the determination of the suit, he is still amenable to the court as its officer until he has complied with its directions as to th e disposal of the funds which he has received during the course of his receivership. . . But an order of discharge does not necessarily follow, in all. cases, because of the determination of the suit, and the court may, upon sufficient cause shown, 881 either discharge or continue the receiver, according to the exigencies of the case. " The learned author makes a further distinction at p. 986 between the following two classes of cases: "Since the final decree in the cause is generally decisive of the subject matter in controversy, and determines the right to the possession of the fund or property held by the receiver, it is usually the case that such decree supersedes the functions of the receiver, since there is then nothing further for him to act upon, although it would seem to be still necessary that a formal application be made for his discharge. But when the court by its decree does not attempt to decide the main question in controversy, and leaves the receiver 's possession undisturbed, it cannot be held to have the effect of operating as a discharge, or of superseding his functions. " Woodroffe in "The Law relating to Receivers in British India", 4th edn., states at p. 22 thus: O. XL, r. 1(a) now expressly provides that a receiver may be appointed whether before or after decree. As long as the order appointing a receiver remains unreversed, and as long as the suit remains a lis pendens, the functions of the receiver continue, until he is discharged by order of the Court. " The law may briefly be stated thus: (1) If a receiver is appointed in a suit until judgment, the appointment is brought to an end by the judgment in /the action. (2) If a receiver is appointed in a suit, with. out his tenure being expressly defined, he will continue to be receiver till he is discharged. (3) But, after the final disposal of the suit as between the parties to the litigation, the receiver 's functions are usually terminated, he would still be answerable to the court as its officer till he is finally discharged. (4) The court has ample power to continue the receiver even after the final decree if the exigencies of the case so require. Let us now apply the said principles to the facts of the instant case. The order appointing the Receivers III 882 did not expressly state that the Receivers ' term would expire on the termination of the suit. Under the preliminary decree the plaintiff became entitled to apply for the passing of the final decree for the sale of the property charged and also to get a personal decree against the defendants 1st set and 2nd set for the balance of his claim remaining due after the sale The preliminary decree expressly directed the Receivers to continue until discharged. Pursuant to the preliminary decree, a final decree for sale of the said properties was made, but the said decree did not in any way modify the direction given in the preliminary decree in respect of the Receivers. The combined effect of the two decrees is that the final decree did not terminate the suit, for the plaintiff would still be entitled to get a personal decree in case the sale proceeds were not sufficient to pay off his dues. It cannot, therefore, be said that the suit has be finally an disposed of. That apart, the preliminary decree in express terms directed the Receivers to continue till they were discharged. In the circumstances, we are definitely of the opinion that the Receivers continued by the preliminary decree are entitled to function in that capacity till they are discharged. The third contention of learned counsel for the appellant raises the question whether in the circumstances of this case the Receiver could recover possession from the appellant only by instituting a regular suit against him for eviction. The facts germane to this contention may be briefly recapitulated. On January 14, 1956, the appellant executed a lease deed in respect of the flour mill in favour of the Receiver and there was an express recital therein that the lessee would deliver possession to the Receiver of all the demised premises upon the expiry of the term of lease. The said lease was executed as a part of a com promise scheme for running the mills. The term of the lease had expired. Thereafter the court directed the Receiver to take possession of the property and auction the same to the highest bidder. The question is whether under the circumstances a court can dispossess the appellant under, a summary process or 883 whether it could only do so by directing the Receiver to file a suit for eviction. The material provisions of Order XL of the Code of Civil Procedure read: Rule 1. (1) Where it appears to the Court to be just and convenient, the Court may by order . . . . . . (b) remove any person from the possession or custody of the property; . . . . . . (d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof (2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove. Under this Order, a receiver is an officer or represen tative of the court and he functions under its directions. The court may, for the purpose of enabling the receiver to take possession and administer the property, by order, remove any person from the possession or custody of the property. Sub r. (2) of rule 1 of the Order limits that power in the case of a person who is not a party to the suit, if the plaintiff has not a present right to remove him. But when a person is a party to the suit, the court can direct the receiver to remove him from the possession of the property even if the plaintiff has not a present right to remove him. In the present case, the appellant was a party to the suit and the court, through the Receiver took possession of the mill and thereafter the Receiver, during the course of the administration of the property, under a compromise arrangement for running the mills, leaned out the flour mill to the appellant with an express condition that the appellant should redeliver the property to the Receiver on the expiry of the lease. Aamittedly the term of the, lease had expired, and the court directed the Receiver to take possession of the mill. The court, in our view, 884 was legally competent to confer a power on the Receiver under Order XL, r. 1(1)(d), of the Code of Civil Procedure to recover the property from the appellant. The decisions cited at the Bar are not of much relevance to the present case. Krista Chandra Ghose vs Krista Sakha Ghose (1) is a case where a lease was granted by a Receiver acting under an order of court and the possession of the property had been given to the lessee, and subsequently certain parties applied to the court for a declaration that the lease was invalid on the ground that it was obtained by collusion. There the court held that no summary order could be passed to set aside the lease and the proper remedy would be by a suit against the Receiver and also against the lessee. In that case the lessee, though he was a party to the suit, acquired a leasehold right under the lease deed and third parties, who offered a higher rent, sought to question the lease on the ground of collusion. Woodroffe, J., held that the dispute could only be decided in a properly instituted suit. The Rajasthan High Court in Nanakchand vs Pannalal (2) held that a Receiver could not recover the rent from a lessee in a summary order of the court, but should file a suit just like any other landlord. The Allahabad High Court in Loonkaran vs I. N. John (3), though it conceded that where a lease had been executed by the Receiver, the lessee may ordinarily be evicted from the demised property only by a regular suit, held that where after the expiry of the term of the lease granted by a Receiver, the sub. lessee in possession gave an undertaking to the court that he would vacate the premises in favour of the prospective lessee if no fresh lease was granted in his favour, the court has power to eject the sub leessee in its summary jurisdiction. The learned Judge observed at p. 59 thus: "By giving an undertaking to the court that he would vacate the Mill in favour of the prospective lessee and by bidding in the court auction the appellant, in our view, submitted himself to the (1) Cal. (2) A.I.R. 1951 Raj. (3) A.I.R. 1961 All. 885 jurisdiction of the court. The appellant could therefore be ejected by summary process, instead of by a suit. " So too, the High Court of Travancore Cochin in Sivarajan vs Official Beceiver, Quilon District (1) held that where the period of the lease granted to the receiver had already expired and as per the express stipulation in the lease deed the lessee was bound to surrender possession of the property without raising any objection at all, the Court could summarily evict him. The learned Judge made the following observations at p. 39: "Even though the lease deed stands in favour of the receiver the express undertaking given by the lessee for an unconditional surrender of the property is in favour of the court. . The summary enforcement of the undertaking thus taken by the court is only a, step towards the discharge of the duties of the court in the management of the estate and it cannot be said that the court has lost its jurisdiction in that direction merely because the property has been in the possession of a lessee. " Further citation would be redundant. These and such decisions seem to hold that a court cannot evict a lessee from a receiver, whether he is a party to the suit or not, in exercise of its summary jurisdiction unless the lease expressly conferred a right of re entry under the lease deed on the receiver. It is not necessary to demarcate the boundaries of the summary jurisdiction of a court in managing an estate through a receiver, for in this case we are clearly of the opinion that the appellant was in possession of the mill under an agreed and integrated scheme for running the mills by the different partners, though he was put in possession under a document described as a lease deed. In effect the Receiver, during the course of the management, entrusted each mill to one of the partners so that the mills might be properly worked under experienced hands. The appellant expressly agreed to put the Receiver in possession of the mill after the expiry of three years. No question of (1) I.L.R. 886 deciding the conflicting claims of a lessee and a third party arises in this case; nor is the court called upon to pronounce on the vested rights of a lessee in conflict with those of the Receiver. But this is a simple case of a court in the course of its administration of the estate through the agency of a receiver making a suitable provision for the running of the mills. As the agreed term had expired, the court, in our view, could certainly direct the appellant to put the mill in the possession of the Receiver. Lastly it has been brought to our notice that an application for the discharge of the Receiver is pending in the lower court. Any observations that we have made in this judgment are not intended to affect the merits one way or other in the disposal of that application. That application will be disposed of in accordance with law. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

The John Mills comprising of three textile mills and one flour mill were jointly owned by several persons. The financier of the Mills filed a suit for recovery of the amount due to him. During the pendency of the suit a receiver was appointed to take possession of the flour mills but he was not empowered to run the mills directly without further directions of the court. A preliminary decree was passed in the suit directing among other things that the receiver was to continue until discharged. Thereafter, an arrangement was made for running the mills and the court directed that the appellant, who was one of the co owners of the mills, be given a lease of the flour mill for three years by the receiver. In the lease deed the appellant undertook to deliver back possession to the receiver upon the expiry 869 of the three years. Shortly thereafter, a final decree was passed in the suit but it was silent in regard to the receiver appointed earlier. On the expiry of the three year term of the lease the court directed the receiver to take back possession of the flour mill from the appellant. The appellant contended (i) that after, the passing of the final decree the receiver ceased to 'be a receiver in respect of the rights of the co owners and could not dispossess the appellant, and (ii) that the appellant could only be dispossessed by a suit filed by the receiver and not by a summary procedure. Held, that the receiver continued by the preliminary decree was entitled to function till he was discharged. The legal position with regard to the continuance of receivers is that: (i) if a receiver is appointed in a suit until judgment, the appointment is brought to an end by the judgment in the suit; (ii) if a receiver is appointed in a suit without his tenure being expressly defined, he will continue till he is discharged; (iii) even after the final disposal of the suit, though as between the parties to the suit his functions are usually terminated, the receiver con tinues to be answerable to the court till he is finally discharged, and (iv) the court has ample power to continue the receiver even after the final decree if the exigencies of the case so require. The final decree in the present case did not finally dispose of the suit and did not bring the appointment of the receiver to an end. Held, further that the court was entitled to direct the appellant to give back possession of the flour mill to the receiver. The court was merely making suitable arrangement for the running of the mill in the course of its administration of the estate through the receiver. The mill had been leased out to the appellant with an express condition that he should redeliver the property to the receiver on the expiry of the lease and the court was competent under 0. 4o r. 1(1)(d) Code of Civil Procedure to confer a power on the receiver to recover the property from the appellant. It was not necessary for the receiver to file a suit for the recovery of the property.

The petitioner and his two associates were convicted and sentenced under section 302 read with section 34, I.P.C. On appeal, the High Court maintained the conviction of the petitioner but acquitted his associates giving them the benefit of doubt. The Petitioner applied to this Court for grant of special leave to appeal under article 136 but the same was dismissed. By this petition under article 32 the petitioner sought issuance of a writ of mandamus directing the State to forbear from giving effect to the judgment and sentence passed by the trial court as also the judgment of the High Court as well as the order passed by this Court dismissing the special leave petition on the ground that his conviction was illegal and therefore his detention in jail was in violation of article 21 read with articles 14 and 19. Dismissing the petition, ^ HELD: The propriety of asking for a declaration in these proceedings under article 32 that conviction of the petitioner by the High Court for an offence punishable under section 302 read with section 34 I.P.C. is illegal, particularly when this Court has declined to grant special leave under article 136 cannot be appreciated. Nor can the petitioner be heard to say that his detention in jail amounts to deprivation of the fundamental right to life and liberty without following the procedure established by law in violation of article 21 read with articles 14 and 19. When a special leave petition is assigned to the learned judges sitting in a Bench, they constitute the Supreme Court and there is a finality to their judgment which cannot be upset in these proceedings under article 32. Obviously, the Supreme Court cannot issue a writ, direction or order to itself in respect of any judicial proceedings and the learned judges constituting the Bench are not amenable to the writ jurisdiction of this Court. [470 D F] Shankar Ramchandra Abbyankar vs Krishnaji Dattatreya Bapat, ; , referred to.

This appeal to the Supreme Court was from a reversing decree of the Bombay High Court in a suit for possession of certain immovable properties. The suit was dismissed by the trial court on 20 12 1946, the value of properties being found to be over Rs. 10,000. The decree of the High Court allowing the plaintiff 's claim was passed on the 8th November 1949. The defendants applied to the High Court for leave to appeal to the Federal Court on 6 1 1950 which was granted on 1 10 1951. One of the questions for determination was whether article 133 of the Constitution applied to the case and the appeal was competent to the Supreme Court. Held, that article 133 did not apply as it relates expressly to appeals against any judgment, decree or final order in a civil proceeding of a High Court in the "territory of India". Held further that on the date of the decree of the High Court, the defendants had a vested right of appeal to the Federal Court as the properties were of the requisite value and on 6 1 1950 a certificate of leave to appeal was bound to be granted. Held also that the appeal was competent to the Supreme Court by virtue of the provisions of article 135 of the Constitution as the jurisdiction and powers in relation to the matter in dispute were exercisable by the Federal Court immediately before the commencement of the Constitution under an existing law inasmuch as the Federal Court had jurisdiction to entertain and hear appeals from a decree of a High Court which reversed the lower court 's decree as regards properties of the value of more than Rs. 10,000. The construction contended for by the respondent that the jurisdiction was exercisable under article 135 by the Federal Court only if the matter was actually pending before the Federal Court and that it could not be said to be pending until the appeal is declared admitted under Order XLV of the Civil Procedure Code is 873 too narrow and does not give full and proper scope to the meaning of the word 'exercisable ' in the Article.

The Government of India entered into an agreement with the President of Argentine Institute for Promotion of Trade to supply Hessian in return for licences for. shipment to India of food stuff purchased there and with a view to implement that agreement issued orders under r. 75A(i) of the Defence of India Rules, 1939, on the managing agents of certain jute mills on September 30, 1946, requisitioning hessian and directing them and any other person in possession of the said goods to deliver them to the Director of Supplies, Calcutta. Although in the heading of the notices after the names of the managing agents it was not stated that they were being addressed as managing agents of such and such mills, the schedules attached to them made it clear that they were addressed 'as managing agents of such and such mills. On the same day notices of acquisition under r. 75A(2) were served on the said managing agents and they were further informed that under r. 75A(3) the goods would vest in the Government at the beginning of the same day free from any mortgage, pledge, lien and other similar encumbrance. The notices of acquisition were also accompanied by schedules similar to those accompanying the requisition orders. The 821 Government of India tried to take possession of the hessian but was resisted by the mills and the holders of pucca delivery orders and brought the suit, out of which the present appeals arose, for enforcing the said orders of requisition and acquisition. The Defence of India Act, 1939, and the Rules made thereunder, had in the meantime come to an end and the question before the courts below was whether the orders of requisition and acquisition as served were effective in law. The trial judge held that as there were no valid orders of requisition as the mills had not been properly served and since the goods were subject to pucca delivery orders, the mills as well as the Government were estopped from challenging the ownership of the holders of the said delivery orders. The appeal court held that the orders of requisition were valid and binding, that the mills, and not the holders of the delivery orders, were the owners of the goods but that the notices of acquisition had not been served as required by r. 75A(2) Of the Rules and, therefore, there was no valid acquisition under r. 75A(3) Of the Rules. Held, that the requisition of the goods could be effected either by taking possession of them or by requiring them to be placed at the disposal of the requisitioning authority. Since in the present case, the mills and not the holders of the delivery orders were admittedly in possession of the goods on the date of the requisition, the proper persons to be served with the orders were the mills. Since the Rules did not expressly provide as to the manner in which orders of requisition in writing under r. 75A had to be served, r. 119(i) must apply and as the orders in the present case concerned an individual corporation, they had to be served in the, manner prescribed by 0. XXIX, r. 2 of the Code of Civil Procedure. The word "officer" as defined by section 2(ii) Of the Indian Companies Act, 1913, includes a managing agent and such definition can be utilised for the purpose of the Code and regard being ha to the nature of his duties there can be no doubt that a managing agent would be within the expression " other principal officer" in O. XXIX, r. 2(1) of the Code. There was no basis for the contention that service under r.2 must be on some human being or that there could be no effective service on a corporation by serving another corporation which might be its principal officer. The service of the orders of requisition on the managing agents obviously meant for the mills in the instant case, was, therefore, good service under 0. XXIX, r. 3 Of the Code. Since r. 75A(2) itself did not provide for any mode of service of notice under it, either the one or the other of the modes specified in section I48 of the Indian Companies Act, 1913, or 0. XXIX, r. 2 Of the Code would be a reasonable mode of effecting service thereunder. In the instant case the notices of 822 acquisition having been served under 0. XXIX, r. 2(a), as the orders of requisition had also been, such service was good service and the acquisition was effective in law. It was not correct to say that the property in the goods represented by the pucca delivery orders had passed to their holders. The contract involved in such delivery orders is a contract of sale of unascertained goods and in view of section 18 of the Indian , title cannot pass to the buyer till the goods are ascertained by appropriation. Anglo India jute Mills Co. vs Omademull Cal. 127, explained. It was not correct to say that the Government of India in acquiring the requisitioned goods was claiming title through the mills and would be, like them, estopped qua the holders of pucca delivery orders. The power to acquire the property flowed from the Defence of India Act and the Rules made thereunder and covered not merely the rights of the owners but the entire goods. Rule 75A(3) of the said Rules made it quite clear the acquisition thereunder was of a title paramount and of the whole of the property freed from all kinds of encumbrances. No question of serving any notice on the holders of pucca delivery orders, therefore, arose in the present case as the property in the goods had not in law passed to them.

The appellant framed bye laws for the regulation and control of flour, rice and oil mills under which a licence had to be obtained on payment of licence fee for running a mill. The bye laws were framed under section 174 of the U. P. District Boards Act, 1922. The respondent contended that the bye laws were ultra vires and void as the District Boards had been divested of their powers to regulate and control trade under the District Boards Act on account of section III of the P. P. Panchayat Raj Act, 1947, which operated in the same field. Held, that the bye laws had been validly made and that the District Boards were not divested of their powers to regu late and control trade under the District Boards Act, 1922, by the provisions of U. P. Panchayat Raj Act, 1947. Section 91(q) of the District Boards Act cast a duty on the District Boards to make provisions for regulating offensive, dangerous or obnoxious trades, callings or practices and section 174(2)(k) specifically empowered District Boards to make bye laws in this respect. There was no similar duty or power conferred upon Village Panchayats under the Panchayat Raj Act and consequently the question of the later enactment prevailing over the former did 82 not arise. The reference to "sanitation" in section 15(c) of the Panchayat Raj Act did not cover regulation and control of trade. Though the word " sanitation " in its widest connotation was capable of including this, it was not used in its widest sense in section 15(c) but only in its ordinary sense in relation to conservancy, drainage and the like. Section III of the Panchayat Raj Act was in general terms, but bye laws could be framed under it only in respect of the functions and duties imposed upon a Gram Panchayat under sections 15 and 16. Held, further, that the licence fee charged by the District Board could not be struck down on account of fees being charged from the respondent in respect of his mills under the U. P. Rice and Dal Mills Control Order, 1948, and the U. P. Pure Food Act. The licence fee charged by the District Board was for the regulation of obnoxious trades and the purpose of this regulation was different from the purpose for which fee was charged from the respondent under the Essential Supplies Act and the Pure Food Act.

% The appellant No. 1, J.K. Cotton Spinning and Weaving Mills Limited, has a composite mill wherein it manufactures fabrics of different types, for which yarn is obtained at an intermediate stage, and the yarn is processed in an integrated process in the said composite mill for weaving the same into fabrics. The Central Board of Excise issued a Circular dated September 24, 1980, purporting to interpret the rules 9 and 49 of the Central Excise Rules, 1944 (the Rules) and directing the subordinate excise authorities to levy and collect excise duty in accordance therewith. The Board further directed vide the said Circular that the use of the goods in the manufacture of another commodity even within the place premises specified in this behalf by the Central Excise officers in terms of the powers conferred under rule 9 of the Rules, would attract duty. As the implementation of the Circular worked to the prejudice of the appellants, they filed a writ petition in the High Court, challenging the validity of the Circular. During the pendency of the said writ petition, the Central Government issued a Notification dated February 20, 1982, amending the rules 9 and 49 of the Rules, with section 51 of the Finance Act, 1982, providing that the amendments in the rules 9 and 49 shall be deemed to have, and to have always had, the effect with retrospective effect from the date on which the Rules came into force i.e. February 28, 1944. Upon the amendments of the rules 9 and 49, with retrospective effect of the amendments, the appellants amended their writ petition above said to challenge the constitutional validity of Section 51 of the Finance Act abovementioned and the amendments to the rules 9 and 49. 701 The High Court allowed the writ petition in part. It held (i) that section 51 and the rules 9 and 49 as amended were valid, (ii) the retrospective effect allowed by section 51 would be subject to the provisions of sections 11A and 11B of the (the Act), (iii) the yarn produced at an intermediate stage in the mill of the appellants and subjected to the integrated process of weaving into fabrics, would be liable to payment of excise duty in view of the amended provisions of the rules 9 and 49, but the sized yarn actually put into the integrated process would not again attract excise duty. The appellants then filed this appeal (Civil Appeal No. 297 of 1983) before this Court by certificate. Dismissing the Appeal, the Court, ^ HELD: The decisions of various High Courts cited, deal with the rules 9 and 49 of the Central Excise Rules, 1944, as they stood before they were amended by the Government Notification dated February 20, 1982. In this case, what is involved is the interpretation of the said two rules after their amendment and the constitutional validity of the rules as amended. The amendments to the rules 9 and 49 are quite legal and valid. Section 51 of the Finance Act, 1982, giving retrospective effect to the said amendments is also legal and valid. The apprehension of the appellants that the amendments to rules 9 and 49 having been made retrospective from the date the rules were framed, that is, February 28, 1944, the appellants may be called upon to pay enormous amounts of duty in respect of the intermediate goods which have come into existence and again consumed in the integrated process of manufacture of another commodity, is not right. In view of section 11A of the Finance Act, there is no cause for such an apprehension. Under Section 11A(1), the excise authorities cannot recover duties not levied or not paid or short levied or short paid or erroneously refunded beyond the period of six months, the proviso to section 11A not being applicable in the present case. Thus though section 51 has given retrospective effect to the amendments of rules 9 and 49, it must be subject to the provision of section 11A of the Act. Section 51 does not contain any non obstante clause, nor does it refer to the provision of section 11A, and it is difficult to hold that section 51 overrides the provision of section 11A. [712F H; 714D F] The appellants are liable to pay excise duty on the yarn obtained at an intermediate stage and, thereafter, further processed in an integrated process for weaving the same into fabrics. Although it has been alleged that the yarn is obtained at an intermediate stage of an 702 integrated process of manufacture of fabrics, it appears to be not so. After the yarn is produced, it is sized, and thereafter, subjected to a process of weaving the same into fabrics. As the Court has held that the commodity which is obtained at an intermediate stage of an integrated process of manufacture of another commodity, is liable to the payment of excise duty, the yarn that is produced by the appellants is also liable to payment of excise duty. [720G H: 721A B] The High Court has rightly held that the appellants are not liable to pay excise duty on the yarn after it is sized for the purpose of weaving the same into fabrics. No distinction can be made between unsized yarn and sized yarn, for the unsized yarn when converted into sized yarn does not lose its character as yarn. The judgment of the High Court affirmed. [721B C] In view of the decision of the Court in the Civil Appeal No. 297 of 1983, the Civil Appeals Nos. 2658 and 4168 of 1983 also dismissed. [721D] The Province of Madras vs Boddu Paidanna and Sons AIR ; Caltex oil Refining (India) Ltd. vs Union of India & Ors. , Delhi Cloth and General Mills Co. Ltd. vs Joint Secretary, Government of India, ; Modi Carpets Ltd. vs Union of India, ; Synthetics and Chemicals Ltd. Bombay vs Government of India, , Devi Dayal Electronics and Wires Ltd. vs Union of India, [1982] E.L.T. 33; Oudh Sugar Mills Ltd. vs Union of India, [1980] E.L.T. 327, Oudh Sugar Mills Ltd. vs Union of India, [1982] E.L.T. 927, Maneklal Harilal Spg. & Mfg. Co. Ltd. vs Union of India, ; Nirlon Synthetic Fibres & Chemicals Ltd. vs Shri R.K. Audim; Assistant Collector & Ors. In Misc. 491 of 1964, unreported judgment of Bombay High Court, dated April 30, 1970, Jawaharmal vs State of Rajasthan & Ors., ; ; Rai Ramkrishna and Ors. vs State of Bihar, ; , K.P. Verghese vs The Income Tax officer, Ernakulam; , and Senior Electric Inspector and Ors. vs Laxmi Narayan Chopra, ; , referred to.

In a suit filed by plaintiff respondent no.1 before the High Court defendant appellants filed a joint application under section 34 of the for staying proceedings of the suit and referring the matter to arbitration. In view of some formal defects in the said application, the High Court on 25.2.1966 without mentioning the defects ordered. "Application withdrawn with liberty to make a fresh application". on 21.3.1966 the appellants submitted two separate applications for staying the suit in so far as it related to them or in the alternative for stay of the entire suit. The plaintiff respondent resisted the applications as not being in terms of the order dated 25.2.1966. Upholding the objection, Learned Single Judge refused to stay the suit. On appeal, the Division bench of the High Court held that the liberty was granted to 'make a fresh application ' and as such, under the provisions or Order XXIII, C.P.C., the appellants had no right to move two separate applications to stay the suit. In appeal by special leave to this Court it was contended that provisions or Order XXIII, C.P.C. were not applicable to applications filed under section 34 of the ; and that the High Court committed an error in taking a technical view that as liberty was given to withdraw the application in order to make a fresh application, the appellants were not entitled to make separate stay applications. Respondent No. 1 supported the impugned judgment. Allowing the appeals, this Court, 810 HELD: 1. In view of section 41 of the , subject to provisions of the Act, Code of Civil Procedure, 1908 apply to all proceedings before the Court No. provision in the takes away the provisions of Order XIII, C.P.C. from being applied to applications filed under section 34 of the in a suit. [814F, 816B] Hakam Singh vs M/S Gammon (India) Ltd, ; relied on. Nawab Usman Ali Khan vs Sagarmal, ; , held inapplicable. Munshi Ram vs Banwari Lal [1962] Supp; (2) SCR 477; Hansraj Gupta vs Officlal Liquidator Dehradun Musoorie Electric Tramway Co, [1932] L.R. 60 I.A. 13; Union of India vs Mohinder Singh & Co., AIR 1971 JK 10; Union of India vs Rup Kishore, [1957] All. 504; Executive Engineer vs Thingom Iboyaima Singh, AIR 1970 Bom. 250; Ram bharosey vs Peary Lal, AIR 1957 All. 265; Shrinath Bros. vs Century Spinning & Wvg. Co. AIR 1968 Bom 443; India Minerals Co. vs Northern India Lime Making Association, ; Ganeshmal vs Keshoram Cotton Mills, AIR 1952 Cal. 10; Governor General in Council vs Associated Live Stock Farm (India) Ltd., AIr ; Soorajmull Nagarmull vs Sagar Mal, AIR 1978 Cal. 239; Ramchand vs Governor General in Council, AIR 9147 Sind. 147 and Scotish Union of National Insurance Co. vs Saraswati Sajnani, Air 1960 Cal. 22, referred to. 2. In the instant case, apart from section 41 of the providing for application of Code of Civil Procedure and there being no provision taking away provisions of order XXIII, C.P.C. from being applied to the applications for stay filed under section 34 of the , the proceeding started on a plaint filed by the plaintiff and in such a suit if any application was filed under the , the same ought to be governed by the provisions of the Code of Civil Procedure. [816A c] 3.1 The High Court was not right in dismissing the applications on the ground that two applications were not maintainable as the same were not covered within its order dated 25.2.1966. [820E F] 3.2 The term 'a fresh application ' in the order dated 25.2.1966 used in singular had no more significance than the fact that as both the 811 appellants had submitted one joint application, liberty was given to make a fresh application, The main purpose of moving the applications under section 34 of the was to stay the suit proceeding. The intention and purpose of moving two such separate applications was also the same. The explanation given by the appellants was that they were given a legal advice to move two separate applications as there were two different agreements between appellants No. 1 and 2 and the respondent No. 1 There being no element of mala fide in the two applications having been submitted within 30 days of the order dated 25.2.1966, the same were maintainable . [820A c]

The Industrial Court, Bombay, awarded bonus equal to 4 1/2 months ' wages to the operatives of the Tata Mills Ltd. and directed that those operatives who were no longer in the service of the Mills should be paid the bonus in one lump sum by a fixed date and in such cases claims in writing should be made to the Manager of the Mills. The operatives who made a claim before the date fixed were duly paid but payment was refused to operatives who applied after that date. The operatives who had been refused payment made applications to the Authority under the Payment of Wages Act. The Mills contended that the Authority had no jurisdiction to entertain the application, but the contention was rejected. The Mills filed a writ petition before the Bombay High Court which was dismissed by a Single judge and an appeal against that decision was also dismissed by a Division Bench: Held, that the bonus awarded by the Industrial Court was not wages within the meaning of section 2(Vi) of the Payment of Wages Act and as such the Authority had no jurisdiction to entertain the applications made to it under section I5 of the Act. Though such bonus was remuneration it was not remuneration payable on the fulfilment of the terms of the contract of employment, express or implied, as required by section 2(vi). F. W. Heilgers & Co. vs N. C. Chakravarthi, [1949] F.C.R. 356, followed.

riminal Appeal No. 74 of 1960. Appeal by special leave from the judgment and order dated August 8, 1957, of the Bombay High 897 Court at Rajkot in Criminal Revision Application No. 10 of 1956. B. K. Khanna and T. M. Sen, for the appellant. Rameshwar Nath, section N. Andley and P. L. Vohra, for the respondent. April 12. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave is against the order of the Bombay High Court at Rajkot setting aside the warrants of attachment issued by the First Class Magistrate, Jamnagar, for enforcing the penalty imposed on the respondent under section 193 of the , (hereinafter called the Act). The material facts may be briefly stated. The respondent is Digvijavasinhji Spinning & Weaving Mills Limited, Jamnagar. It imported 275 cases of secondhand looms under one consignment and 175 cases of second hand textile waste to plant machinery under another consignment from Pondicherry. The respondent held licences for import of goods of a lesser value than the value of these consignments. The Collector of Customs, Baroda, ordered the said goods to be confiscated under section 167(8) of the Act; and in lieu of confiscation an option was given to the respondent to pay a fine of Rs. 22,918 and Rs. 16,000 in respect of the two consignments. Further, on the ground that the respondent had understated the, value of the goods imported under the first consignment, the appellant imposed a penalty of Rs. 500 under section 167(37)(c)of the Act. Against the said order,. the respondent preferred two appeals to the Central Board of Revenue and the said Board by its order dated January 15, 1954, set aside the orders of the appellant and instead imposed a penalty of Rs. 22,918 in regard to the first consignment and Rs. 16,000 in regard to the other under section 167(8) of the Act; but the penalty of Rs. 500 was however maintained. In revision the Government of India modified the order of the Central Board of Revenue by cancelling the penalty of Rs. 500 and in 898 other respects it confirmed the order of the said Board. The respondent cleared the goods on executing a bond in favour of the appellant. As the respondent did not pay the penalty, the appellant, acting under section 193 of the Act, notified the default in writing to the First Class Magistrate at Jamnagar so that the penalty might be recovered in the manner prescribed by the said section as if the said penalty was a fine inflicted by the Magistrate himself. On the said requisition the Magistrate issued warrants of attachment against the respondent, but the latter filed a petition before him for the cancellation of the said warrants on the ground that the order of the Central Board of Revenue was illegal and also on the ground that the appellant had no jurisdiction to take action under section 193 of the Act. The Magistrate, by his order dated May 8, 1956, held that the appellant could validly realize the said amounts under the machinery provided under section 193 of the Act. Against the said order of the Magistrate the respondent preferred an appeal to the Sessions Judge, Halar, Jamnagar, but it was later converted into a revision and was dismissed. On revision to the High Court against that order, the High Court held that as the panalty was imposed by the Central Board Revenue, the appellant could not realize the said amounts under 193 of the Act; it also expressed an opinion that the final order of the appellate authority was not without jurisdiction as it was not shown that consent of the owner of the goods ordered to be confiscated had not been obtained by the Central Board of Revenue before the order commuting the confiscation to penalty was passed. In the result, the High Court set aside and cancelled the warrants of 'attachment issued by the Magistrate. Hence the appeal. Learned counsel for the appellant broadly contended that section 193 of the Act should be liberally construed with a view to effectuate the intention of the legislature and if so construed the order of the Central Board of Revenue made in substitution of that of an officer of Customs could be enforced by the latter officer under the said section. On the other hand, 899 learned counsel for the respondent argued that the Central Board of Revenue was not an officer of Customs within the meaning of section 193 of the Act and therefore its order could not be enforced under the said section by an officer of Customs; and that even if the Board, being the Chief Customs Authority, could be considered to be an "officer of Customs" within the meaning of those words, the said Chief Customs Authority only could enforce the said order and not the Collector of Customs. To appreciate the rival contentions and to provide a satisfactory solution to the problem presented it is necessary to read the relevant provisions of the Act, not only to understand the scheme of the Act but also to construe the provisions of section 193 thereof in the light of the scheme disclosed by the said provisions. It is one of the well established rules of construction that "if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature". It is equally well settled principle of construction that "Where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system. " With this background and having regard to the aforesaid two principles of construction, let us at the outset scrutinize the scheme of the Act. Section 3 defines "Chief Customs authority" to mean the Central Board of Revenue. "Customs collector" is defined to include "every officer of Customs for the time being in separate charge of a custom house, or duly authorized to perform all, or any special, duties of an officer so in charge. " Section 19 confers a power on the Central Government to prohibit or restrict the importation or exportation of goods by sea or by land. Section 167 prescribes the various punishments for offences under the Act. Section 167(8) says that if any goods, the 900 importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of the Act, be imported into, or exported from India contrary to such prohibition or restriction, such goods shall be liable to confiscation; and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees. Under section 167(37)(c), if it be found, when any goods are entered at, or brought to be passed through, a custom house, either for importation or exportation, that the contents of such packages have been misstated in regard to sort, quality, quantity or value, such packages shall be liable to confiscation and every person concerned in any such offence shall be liable to a penalty not exceeding one thousand rupees. Section 182, empowers the Collector of Customs to adjudicate whether anything is liable to confiscation, increased rate of duty or any person is liable to a penalty. Section 183 enjoins on such authority to give the owner of goods so confiscated an option to pay in lieu of confiscation such fine as it thinks fit. Section 188 gives a right of appeal from such an order to the Chief Customs Authority who is empowered to pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against; but under the proviso to that section the said appellate authority cannot make an order subjecting any person to any greater confiscation, penalty or rate of duty than has been adjudged against him in the original decision or order. Every order passed under this section is final subject to the power of revision conferred by section 191 on the Central Government. Section 190 confers a power on the Chief Customs Authority to remit penalty, increased rate or confiscation in whole or in part; it also enables the said authority, with the consent of the owner of the goods ordered to be confiscated to commute the order of con fiscation to a penalty not exceeding the value of such goods. Section 190A gives a power of revision to the Chief Customs Authority against an order of any officer of Customs passed under the Act and enables it to pass such order thereon as it thinks fit. Then comes the 901 crucial section 193. As the argument turns upon the provisions of this section, it would be convenient to read the entire section at this stage. Section 193: "When a penalty or increased rate of duty is adjudged against any person under this Act by any officer of customs, such officer, if such penalty or increased rate be not paid, may levy the same by sale of any goods of the said person which may be in his charge or in the charge of any other officer of Customs. When an officer of Customs who has adjudged a penalty or increased rate of duty against any person under this Act is unable to realise the unpaid amount thereof from such goods, such officer may notify in writing to any Magistrate within the local limits of whose jurisdiction such person or any goods belonging to him may be, the name and resi dence of the said person and the amount of penalty or increased rate of duty unrecovered; and such Magistrate shall thereupon proceed to enforce payment of the said amount in like manner as if such penalty or increased rate had been a fine inflicted by himself. " Pausing here, let us recapitulate the gist of the aforesaid provisions. Under the Act the goods, whose importation or exportation is prohibited or restricted by the provisions of the Act, are liable to be confiscated and also the person concerned is liable to a penalty. Even a misstatement in regard to sort, quality, quantity or value of the goods so imported or exported is an offence and the packages, with their contents, are liable to be confiscated and the person concerned in any such offence is also liable to penalty. The Collector of Customs can make an order confiscating the said goods as well as imposing a penalty on the person concerned. In an appeal against that order, the Chief Customs Authority can modify the said order, but it has no power to increase the burden. It can remit such penalty or confiscation, in whole or in part, but it can also commute the order of confiscation to penalty not exceeding the value of such goods. A person desiring to file an appeal against an order of 902 penalty passed by an officer of Customs shall, pending an appeal, deposit in the hands of the Customs collector at the port where the dispute arises the amount demanded by the officer passing such decision or order; and if he succeeds wholly or in part, the whole or such part thereof, as the case may be, shall be returned to him. The result of the provisions, therefore, is that there would never be a contingency or necessity for an appellate tribunal to enforce payment of penalty impossed by it, for no appeal would be heard by it unless the penalty was deposited as aforesaid. With this background let us look at the relevant provisions of section 193 of the Act. Under the said section only an officer of Customs, who has adjudged a penalty or increased rate of duty, can realize the said penalty or rate through the machinery of a Magistrate. The question is whether the Chief Customs Authority is "an officer of Customs" who has adjudged a penalty or rate, as the case may be, within the meaning of section 193 of the Act. Section 182 of the Act enumerates the different officers of Customs who are empowered to adjudge a question of penalty, but the Chief Customs Authority is not included in that list. Indeed, in section 182(c) the Chief Customs Authority is empowered to nominate the subordinate officers of Customs to adjudge questions within certain pecuniary limits. That apart, section 3(a) of the Act defines "Chief Customs authority" to mean the Central Board of Revenue. The Central Board of Revenue is a statutory authority and, though it can only function through officers appointed to the said Board, it is inappropriate to call it an officer of Customs. In this situation, when under the provisions of the Act there is no scope for realization of any penalty imposed for the first time by the Chief Customs Authority, it would be more in accord. with the scheme of the Act to construe the words "an officer of Customs" as an officer of the Customs who is authorized to adjudicate in the first instance on the question of confiscation, increased rate of duty or penalty under section 182 of the Act. This construction, it is said, would lead to ail anomaly of the statute conferring a power on the Chief Customs Authority to 903 from it a procedure to enforce its collection. As we have pointed out, such an anomaly cannot arise under the provisions of the Act, for there is no section which empowers the Chief Customs Authority to impose a penalty higher than that imposed by the Customs Officer. Assuming that the Chief Customs Authority is an Officer of Customs within the meaning of section 193 of the Act, it had to initiate proceedings under the said section; but in this case the Collector of Customs notified in writing to the Magistrate for recovering the said penalty. Learned counsel for the appellant contends that an order made by the Chief Customs Authority imposing a penalty shall be deemed in law to be an order made by the original authority, that is, the Collector of Customs and, therefore, the said order for the purpose of enforcement shall be treated as the order of the Collector of Customs. It is said that this legal position would flow from the proposition that an appeal is a continuation of a suit. The said proposition is unexceptionable: see Rangaswamy vs Alagayammal (1), Kristnamachariar vs Mangammal (2), Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri (3). But neither the said decisions nor the principles laid down therein can have any bearing on the question whether an order made for the first time by an appellate authority could in law be deemed to be one made by the original authority. In the absence of any statutory fiction giving rise to that result, it is not permissible to treat the order made by one authority as that made by another authority. If so, it follows that the order of the Chief Customs Authority imposing a penalty for the ' first time cannot be treated to be an order of the Collector of Customs within the meaning of section 193 of the Act. As we have pointed out, the Chief Customs Authority has no power to impose a penalty for the first time under section 188 of the Act; but it has power under (1) A.I.R. 1915 Mad. 1133. (2) Mad. 91,95 96. (3) , 10.3. 904 s.190 of the Act to commute the order of confiscation to a penalty riot exceeding the value of the goods confiscated. Though the Chief Customs Authority in its order dated January 15, 1954, did not expressly rely on section 190 of the Act, it cannot be disputed that it has jurisdiction to pass such an order thereunder subject to the conditions laid down therein. The condition for the exercise of that power is that it should have obtained the consent of the party whose goods were confiscated. The High Court in its order observed that there was nothing before it to show that the consent of the owner of the goods ordered to be confiscated was not obtained before the order of confiscation was commuted to one of penalty by the Chief Customs Authority. If that be taken as a finding the question of the legal effect of an order of commutation would arise for consideration. Would such an order be deemed to be made in substitution of that of an original authority? Could it be said that the commuted sentence shall be deemed in law a sentence imposed by the original tribunal? But these questions need not detain us, as we are not satisfied on the material placed before us that the condition of consent has been fulfilled in this case. The High Court in effect drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this when the validity of an order depends upon the fulfilment of a condition, the party relying upon 'the presumption should at least show that the order on the face of it is regular and is in conformity with the provisions of the statute. But in the present case the order of the Chief Customs Authority ex facie does not show that it was made under section 190 of the Act. Indeed it is purported to have been made under section 167(8) of the Act. If as a matter of fact the said Authority made the order of commutation with the consent of the owner of the goods it would have certainly jurisdiction to make such an order under section 190 of the Act. Though there was no such recital, it would have been open to the appellant to establish that fact by necessary evidence. In the absence of any such 'evidence we must hold that it has 905 not been established that the Chief Customs Authority made its order under section 190 of the Act with the consent of the respondent. This will not preclude the State from establishing by relevant evidence that the penalty was imposed under section 190 of the Act with the consent of the owner of the goods in an appropriate proceeding. In the result the order of the High Court is correct and the appeal is dismissed. Appeal dismissed.

The respondent imported goods of higher value than what was granted under his licence. The Collector of Customs ordered the goods to be confiscated under section 167(8) of the and in lieu of confiscation gave an option to the respondent to a fine. On appeal the Central Board of Revenue set aside the order of the Collector of Customs and instead of it imposed a penalty. The respondent did not pay the penalty and the Collector of Customs took proceedings under section 193 of the Act for the recovery of the penalty in pursuance of which a Magistrate issued warrants of attachment against the respondent holding that the Collector of Customs could validly realise the penalty under section 193 of the Act. The Sessions Judge dismissed the respondents application in revision but the High Court held that as the penalty was imposed by the Central Board of Revenue the Collector of Customs could not realise the amount of the penalty under section 193 of the Act and also held that the order of the Central Board of Revenue commuting the confiscation to penalty was not without jurisdiction. On appeal by special leave, Held, that the Central Board of Revenue which is the "Chief Customs Authority" cannot be called an "officer of Customs", and the order of the Chief Customs Authority imposing a penalty for the first time cannot be treated to be an order of the Collector of Customs within the meaning of section 193 of the Sea Customs Act, 1873, and as such the Collector of Customs could not realise the penalty imposed by the Central Board of Revenue. Rangaswamy vs Alagayammal, A.I.R. (1915) Mad. 1133, Kristnamachariar vs Mangammal, Mad. 91 and Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri, , held not applicable.

The appellants who were manufacturers of cigarettes and tobacco in the State of Bihar contested the levy of sales tax on sales effected by them during the financial years 1949 5o and 1950 51 on the ground that as a direct result of every sale effected by them the goods concerned were delivered outside the State of Bihar and were, therefore, exempted from tax liability under article 286(i)(a) of the Constitution. Both the Superintendent of sales tax and the Deputy Commissioner of sales tax, Bihar, overruled the objection of the appellants, and following a previous ruling of the Board of Revenue of Bengal in a case known as the Bengal Timber Case (61 of 1952) held the appellants liable to pay the tax. The appellants paid the tax demanded but filed an application in revision to the Board of Revenue, claiming a constitutional exemption from tax on every sale effected by them as a result of which goods were delivered outside the State of Bihar whether the delivery was for consumption in the State of first delivery or not. The Board passed the following order on the revision petition. " As regards the admitted despatches of the goods outside the State after the 26th January, 1950, when the Constitution came into force, the learned lower court has been guided by the decision of the Board in the Bengal Timber Case (No. 61 of 1952). But this ruling of the Board stands superseded by the subsequent decision of the Supreme Court in the United Motors Case According to the decision of the Supreme Court, no tax could be levied on despatches to the places outside the state after the 26th January, 1950, and on this point the petitions are allowed, and the sales tax officer directed to recalculate the amount of tax payable by the assessee ". The appellants taking the above order to be in their favour claimed refund of the tax already paid by them and the sales tax authorities contested the position and claimed that they were bound to refund the tax only on those sales wherein the goods were delivered outside the State for consumption in the State of first delivery. The department thereafter sought clarification of the above order. The Board refused to clarify or explain its order and passed an order saying that " no further clarification was really required in view of the specific reference to the judgment of the Supreme Court in the United Motors Case ". Thereafter as the authorities still refused to refund the balance of the tax the appellants filed two applications in the High Court for the issue of a writ of mandamus to compel the refund. The High Court held that the Board 's decision that sales in which the goods were delivered outside the State for consumption, not in the State of first delivery but in other States were also exempted from tax, was wrong and that the appellants were not entitled to a writ of mandamus for enforcing a wrong order. On appeal by special leave, Held, that the proper construction of the Board 's orders was that the sales tax officer was directed to decide the relief that 108 should be given to the assessee on the officers ' interpretation of the decision of this Court in the United Motors Case. The Board did not determine the effect of that judgment and did not decide that every sale in which the goods were delivered outside the State of Bihar was exempted from liability to tax. The principle that a subordinate tribunal should not refuse to carry out the directions of a superior tribunal was therefore not applicable to the instant case. Bhopal Sugar Mills vs Commissioner of Income tax, [1961] 1 S.C.R. 474, held inapplicable. The United Motors Case merely decided that sales in which goods were delivered outside the State for consumption in the State of first delivery would fall under the Explanation to article 286(1) of the Constitution and would therefore be exempted from tax liability, but it did not deal with other sales in which the goods thus delivered were for consumption, not in the State of first delivery but in other states. Such sales would on the order of the Board of Revenue which was binding on the appellant be liable to tax in accordance with the previous decision of the Board of Revenue in the Bengal Timber Case. State of Bombay vs United Motors (India) Ltd. and Ors., ; , explained and applied. Board of Revenue of the State in the Bengal Timber Case, 61 of 1952, referred to.

The appellant Federation entered into a contract with a Soda Company of Kenya, for supply of 5000 metric tonnes of soda ash dense and the consignment arrived at Bombay on 23.12.1981. The goods were cleared on payment of customs duty of Rs.32,15,904.21. The appellant on distribution of the goods to various members of the Federation, received complaints that the soda ash which had been supplied was of sub standard quality. When the sellers as well as their agents were approached, they sent a team of experts to examine the goods and on inspection the goods were found defective. As per agreement dated 9.2.1982, the sellers sent a credit note of US $ 2,40,000 as compensation on account of the defective goods. The amount remitted on account of the import made was only US $ 5,35,000 as against the earlier contracted amount of US $ 7,75,000. In view of such reduction, the appellant filed a refund application before the Customs Department to the tune of Rs.9.95,892 65. The Assistant Collector rejected the refund application as he was not satisfied to the extent of deterioration of the goods before clearance as provided by Section 22 of the . The appeal preferred was rejected by the Collector of Customs on the reasoning that the damage wad discovered after the goods were out of customs control. The further appeal to the Tribunal was rejected hold ing that the alleged inferior nature of goods was discovered after clearance. 514 Under Section 130E of the , present appeal was made to this Court, contending that the goods supplied were not in accordance with the contractual speci fication, the defects being inherent in nature resulted in diminution in the real value of the goods and what had been agreed upon by the foreign seller was reduction in price on account of the defects, and claimed that it would be enti tled to refund of customs duty under Section 22 of the Act. On the question, whether the appellant was entitled to the refund of customs duty on account of the compensation given by the seller to the appellant on supply of goods, dismissing the appeal, this Court, HELD: 1.01. When the value is assessed on the basis of the invoice and the goods are cleared, the implication is that no remission is allowed and no abatement has been occasioned. There is no express provision which enables the proper officer to make a re assessment for the purpose of remission on the ground that the goods at the time of their importation or at the time of the clearance was sub standard or damaged and the invoice price does not represent the real value. [520E F] 1.02. Any error in the assessment of the value by itself does not enable the importer to claim re assessment or refund. It has necessarily to be shown that on account of the damaged or deteriorated condition of the imported goods before or during the unloading of the goods in India, the duty to be charged on the goods was proportionate to the value of the damaged or deteriorated goods. [520G 521A] 1.03. The question of redetermining the value of the imported goods can arise only in a case where such damage or deterioration before the clearance is proved to the satis faction of the proper officer. When there had been no indi cation of any such condition and the duty has been assessed on the basis of the invoice value and duty is paid, the assessment would be binding. The importer on finding the goods cleared and distributed not to his entire satisfaction may have a claim in contract against the seller for provid ing sub standard, damaged or deteriorated goods for the value in the invoice, and it may be open to the buyer to realize from the seller such damages as he would in law be entitled to. That claim for damages cannot have any bearing to the assessment at the time of the clearance. The price at which the goods has been sold is represented by the invoice price and whatever amount is realized on subsequent agree ment is only by way of compensation as damages. It cannot be said that the damages thus received represents the differ ence in price that had been paid and that ought to have been 515 paid. When the seller had agreed to compensate the buyer for the quality of the goods imported, the buyer does not get the right to claim abatement of duty on the assumption that the real price was something less than what has been indi cated in the invoice. [521A D] 1.04. There is no material on record to show that there had been a re assessment of the value of the goods. What had been estimated is only quantum of damages sustained by the buyers and to that extent they had been compensated. That arrangement between the buyer and the seller cannot be linked with the assessment of duty and no claim for abate ment of duty under the provisions of Section 22 or a claim for refund under Section 27 could be legitimately enter tained. [523A B] Biggin & Co. Ltd. vs Premanite, LD., Berry Wiggins & L.D., ; Cehave NV vs Bremer, ; Ford Motor Company of India vs Secretary ' of State for India, [1937 8] L.R. 659. A. 32 and Vaccum Oil Co. vs Secretary of State for India, [1932] L.R. 59, IA 258, referred to. Halsbury 's Laws of England, para 574 at page 121, Vol. 12; referred to.

The respondents, manufacturers of P.V.C. Conveyor Belt ing, contended before the Customs, Excise and Gold (Control) Tribunal that for purposes of excise duty under the Central Excise Tariff this item fell under Item 68. The Revenue submitted that the commodity was governed by Item 22. The Tribunal recorded a finding of fact that P.V.C. compounding was done simultaneously with the weaving of the fabric from yarn and held that this item should be governed by the residuary Entry 68 for the purposes of excise duty. Dismissing the appeals by the Revenue, the Court, HELD: It is accepted that yarn is woven into fabric. Item 19 deals with cotton fabrics while Item 22 deals with man made fabrics. The Tribunal recorded a finding that P.V.C. compounding was done simultaneously with the weaving of the fabric from yarn, which clearly indicated that the process of manufacture was conversion from yarn to fabric as also the application of the P.V.C. Compound carried on at the same point. [1228F; 1227FG] In view of the higher percentage of P.V.C. Compound in the commodity, it becomes difficult to treat the ultimate goods as manmade fabrics for holding that it is covered by Item 22. Upon this analysis, the Tribunal was correct in holding that the goods were not covered by Item 22 and, therefore, the residuary Item 68 applied. [ 1228G ]

This Court by its order dated 18th April 1985 in Union of India vs Rajnikant Bros. (Civil Appeal No. 1423 of 1984) directed that save and except items which were specifically banned under the prevalent Import Policy at the time of import, parties would be entitled to import all other items whether 'canalised ' or 'uncanalised ' and in accordance with the relevant rules. The effect of this direction came to be considered in Raj Prakash Chemicals Ltd. vs Union of India, , and M/s. Indo Afghan Chamber of Commerce & Ors. vs Union of India, (AIR The effect has also been explained in Union of India vs M/s. Godrej Soaps Pvt. Ltd., (S.L.P.No. 8144 of 1986). The applicant was neither a party nor was served with any notice of the aforesaid proceedings. The respondents having not permitted clearance of its goods in view of the decisions in Prakash 's case and Indo Afghan Chamber of Commerce 's case the applicant filed petitions contending that it was not bound by the directions contained therein. Disposing of the petitions, the Court, ^ HELD: Decisions of this Court laying down the position in law, are laws binding on all. [782 G] 782 Whether importation of canalised items would be covered by the order was not adverted to in the first order dated 18th April, 1985. Use of the expression "Whether canalised or not" was intended to convey that both canalised and non canalised items would be covered within the ambit of the order. [783 G] The position has been clarified by the respondent 's letter dated June 18, 1986. The Government of India 's letter dated April 23, 1986 which is not in consonance with the subsequent direction, would not in any way affect the position or create any estoppel. Nor can such a letter be used as an argument that that was the Government 's understanding of the matter. [783 H: 784 A B]

Respondent firm owned a Steel Rolling Mill situate at Madras. The said mill was leased out to a partnership firm viz., M/s. Steel Industries and after the expiry of the lease period, the Respondent took back the possession of the Mill on 1.8.1962 and informed the Central Excise Authori ties, who advised the Respondent to take out a licence for which it applied on 30.11.1962 Respondent sold away the Rolling Mill on 8.4.1963. The Superintendent of Central Excise by his letter dated 13.10.1965 raised a demand of Rs.31,018.20 p. on the respondent on account of excise duty. The Respondent having informed the Department that the firm had manufactured only 775.455 metric tonnes of steel, the demand of excise duty was reduced to Rs.6,419.38 p. only. The Respondent, though pleaded that it was not liable to pay excise duty demanded, yet the Assistant Collector of Customs by his order dated 14.6.1967 confirmed the demand. The Respondent firm challenged the validity of the demand by filing a Writ Petition in the High Court. Respond ent contended before the High Court that (i) it was entitled to exemption of duty; (ii) that the demand for payment of excise duty was time barred and (iii) that Rules 10A under which the demand has been made are ultra rites as there was provision in the Act to enable the Government to frame rules for the recovery of duty short levied. The High Court allowed the Writ Petition and upheld the contention advanced by the Respondent holding that Rule 10A did not apply to cases where there has been no prior levy of excise duty in respect of the articles manufactured during the relevant period. Hence this appeal by the Department. 445 The question that arose for determination by this Court was whether Rule 10A of the Rules, as it stood at the rele vant time, was valid? Counsel for the appellant wile plead ing that the Rule was valid submitted that it was necessary to decide this question in view of the conflicting decisions creating difficulty for the Department in collecting short levies or escaped excise duty. Counsel referred to decisions reported in 1972(2) MLJ 476; ; ; ; and 1977(2) Tax L.R. 1680. Counsel for the Respondent urged that the Standing Counsel for the Central Government had conceded the ration ale of the decision in Haji J.A. Kateera sait vs Dy. Commer cial Tax Officer, Mettupalayam;, 18 STC 370 which held that Sub Rule (7) of Rule S of the Central Sales Tax (Madras) Rules 1957 was in excess of the rule making power and as such the Sub rule as a whole was invalid. In view of the said decision, the appellant would not be able to sustain the demand under Rule 10A; and it is no longer open to the appellant to challenge the validity of Rule 10A in the appeal. Allowing the appeal and remanding the matter to the High Court, Court, HELD: Chapter II of the Act deals with levy and collec tion of duty. Under Section 3 of the Act, duties specified in First Schedule to the Act were to be levied. Rule 10A provided the machinery for collection of tax from assessee after the goods had left the factory premises. This rule contemplated that the duty or deficiency in duty was payable on a written demand made by the proper officer in cases where either the rules did not make any specific provision for the collection of any duty or of any deficiency in duty, if the duty had for any reason been short levied. It was a residuary provision and it applied only when there was no other specific provision in the Rules. Where there had been no assessment at all there was no reason why claim and demand of the Respondent could not be said to be recoverable under Rule 10A. [449E; 448H; 449B C] The validity of the delegated legislation is generally a question of vires, that is, whether or not the enabling power has been exceeded or not. Rule 10A as it existed at the relevant time, was valid and not ultra vires the rule making power. Demand notice lawfully issued under the rule by the competent authority could not, therefore, be chal lenged on the ground of the Rule 10A itself being ultra vires. Whether these could be challenged on any other ground must necessarily depend on the facts 446 and circumstances of each case. [453E F] Kerala Polythene vs Superintendent Central & Excise, M/s. Chhotabhai Jethabhai Patel vs Union of India, Stateof Kerala vs K.M. Charie Abdullah & Co., [1965] 1 S.C.R.601. Any rule if it could be shown to have been made 'to carry into, effect the purposes of the Act ' would be within the rule making power. [452H; 453A] Citadel Fine Pharmaceuticals vs District Revenue Offi cer, Chingleput, ; M/s. Agarwal Brothers vs Union of India, ; N.B. Sanjane vs Elphin stone Spinning and Weaving Mills Company Ltd., ; Assistant Collector vs National Tobacco Co. Ltd., ; and D.R. Kohli vs Atul Products Ltd., ; , referred to.

The appellant, a partnership firm having 2 partners, carried, on business of importers and exporters, etc. The Cashier of the firm handed over a wooden case, to the Swiss Airways at Dum Dum for being sent to Hong Kong by air. According to the consignment note, the consignment was being sent by one R. of Karnani mansions, Calcutta, who was a fictitious person. The shipping bill showed that the consignment purported to contain food and dried vegetables and was sent to 1, of Hong Kong, also a fictitious person. After the consignment was accepted and when customs examined it for clearance, it was found that it contained Rs. 51,000 in Indian currency. On investigation, a search warrant was issued by the Presidency Magistrate and the office of the firm and the residence of partners were searched. In the course of search, accounts books and other documents were seized. Investigation revealed that the Cashier, had signed the consignment note as Rs, which, as the subsequent writings showed, were in his hand. Even the consignment note appears to have been typed on the type writer of the appellant firm. Thereafter, Customs authorities served a notice, on the appellant pointing out that exportation of Indian currency out of India was in contravention of section 8 (2) of the Foreign Exchange Regulations Act, 1947 read with Reserve Bank Notification dated 27 2 1951 as specified therein and it was asked to show cause and to produce within 4 days the permit, if any, of the Reserve Bank of India, failing which, it would be liable for prosecution under Section 23(1) read with section 8(2) of the Foreign Exchange Regulations Act. The appellant denied that the firm bad anything to do with the case. Apart from criminal prosecutions against the partners, a fine of Rs. 1,000 under section 167(3) of the Sea Customs Act with a further personal liability of Rs. 1,000 section 167(37) of the Act was imposed against the firm. It was further fined Rs. 51,000 section 167(8) of the Act read with section 23(1) of the Foreign Exchange Regulations Act. Apart from these, the currency notes of Rs. 51,000 which were seized, were also confiscated. This order was challenged before the single judge of the Calcutta High Court who issued a rule but later discharged it. An appeal against that order was also dismissed. In appeal to this Court, three points, raised before the Appellate Court were also reiterated : (1) Currency Notes are not 'goods ' and therefore, the provisions of section 167(3), (8) and (37) of the Sea Customs Act are not attracted. (2) A firm is not a legal entity and therefore, it cannot be a 'person ' within the meaning of any of the above provisions of law. (3) Even if a 'firm ' be a 'person, no penalty can be imposed on the firm or any of its members unless the members have consciously taken any step to violate the provisions of law; 8 6 even so, only the partner member against whom there is evidence of guilt can be held liable. Dismissing the appeal, HELD :P (i) section 23A of the Foreign Exchange Regulations Act, incorporates, by reference, the provisions of the Sea Customs Act by deeming the restrictions under section 8 of the Foreign Exchange Regulations Act, to be prohibiting and restricting under section 19 of the Sea Customs Act. The legislature can always incorporate by reference, the provisions of some other Act, if they are relevant for the purposes of the scheme and object of that Act. Restrictions specified in section 8 of the Foreign Exchange Regulations Act are deemed to be prohibitions and restrictions mentioned under section 19 of the Sea Customs Act. The prohibitions mentioned under section 8 are not necessarily confined to goods alone but must be deemed, for the purposes of Foreign Exchange Regulations Act, to include therein restrictions in respect of the articles specified in section 8 thereof, including currency notes as well. [94 B] (ii) Although there is no definition of the word 'person ' in either of. the Acts, the definition in section 2(42) of the or Section 2(3) of the Act of 1863 would be applicable to the present Acts. in both of which, person has been defined as including any Company or association, or body of individuals whether incorporated or not. Further, the explanation to section 23C clearly envisages that a company for the purposes of that Section is defined to mean any body corporate and includes a firm or other association of individuals and a Director in relation to a firm also means a partner of the firm. Therefore, for "he purposes of Foreign Exchange Regulations Act and Sea Customs Act. a registered partnership firm L is a 'legal entity '. [94G] (iii) From the evidence, it was clear that the appellant attempted to hoodwink the customs officials (currency notes secreted in a cavity), that the consigner and consignee were not shown as real persons, the charges and expenses incurred. in connection with the despatch were found in the entry in the books of account of the firm that the amount, sought to be sent was half a lakh of rupees which could hardly be within the mean ', of the Cashier and the High Court was right in holding that it was the firm which was interested in sending the currency notes out of India .,II a clandestine manner.[198 A] Radha Krishna Bliatia vs Union of India & Ors., Thomas Dana vs The State of Punjab, [1959] Supp. 1 S.C.R. 274 and Additional Collector of Custo is vs Sita Ram Agarwal, C.A. No. 492 of 1962 decided on 14 9 1962 referred to and distinguished.

Right from 1939, the demand of jute in the world market was rather lean and with a view to adjusting the production of the jute mills to the demand of the world market, various jute mills formed an Association styled as Indian Jute Mills Association and the appellant is one such member of the said Association. As per the objects of the Association a quinquenniel working time agreement was entered into between the members of the Association restricting the number of working hours per week, for which the mills shall be entitled to work their looms. The fourth working time Agreement was entered into between the members of the Association on 9th December, 1954 and it was to remain in force for a period of five years from 12th December 1954. As per the first clause of the fourth working time Agreement no signatory shall work more than forty five hours of work per week subject to alteration in accordance with the provisions of clauses 7(1)(2) and (3) and further subject inter alia to the provision of clause (10) and under that clause, a joint and several agreement could be made providing that throughout the duration of the working time agreement, members with registered complements of loom not exceeding 220 shall be entitled to work upto seventy two hours per week. Clause 6(a) enabled members to be registered as a "Group of Mills" if they happened to be under the control of the same managing agents or were combined by any arrangement or agreement and it was open to any member of the Group Mills so registered to utilise the allotment of hours of work per week of other members in the same group who were not fully utilising the hours of work allowable to them under the working time agreement, provided such transfer of hours of work was for a period not less than six months. Clause 6(b) further (J prescribed three other conditions precedent subject to which the allotment of hours of work transferred by one member to another could be utilised by the latter and two of them were: (i) All agreements to transfer shall, as a condition precedent to any rights being obtained by transferee, be submitted with an explanation to the Committee and Committee 's decision . whether the transfer shall be allowed shall be final and conclusive and (ii) If the Committee sanctions the transfer, it shall be a condition precedent to its utilisation that a certificate be issued and the transfer registered. This transaction of transfer of allotment of hours of work per week was commonly referred to as sale of looms hours by one member to another. The consequence of such 1371 transfer was that the hours of work per week transferred by a member were liable to be deducted from the working hours per week allowed to such member under the working time agreement and the member in whose favour such transfer was made entitled to utilise the number of working hours per week transferred to him in addition to the working hours per week allowed to him under the working time agreement. The assessee, under this clause purchased loom hours from four different jute manufacturing concerns which were signatories to the working time agreement, for the aggregate sum of Rs. 2,03,255/ during the year 1st August 1958 to 31st July 1959. In the course of the assessment year 1960 61 for which the relevant accounting year was the previous year 1st August 1958 to 31st July 1959, the assessee claimed this amount of Rs. 2,03,255/ as revenue expenditure on the ground that it was part of the cost of operating the looms which constituted the profit making apparatus of the assessee. claim was disallowed by the Income Tax officer, but on appeal, the Appellate Assistant Commissioner accepted the claim and allowed the deduction on the view that the assessee did not acquire any capital asset when it purchased the loom hours and the amount spent by it was incurred for running the business of working it with a view to producing day to day profits and it was part of operating cost or revenue cost of production. The Revenue preferred an appeal to the Tribunal, and, having lost before it, carried the matter before the High Court by a reference. The High Court, following the decision of the Supreme Court in Commissioner of Income Tax vs Maheshwari Devi Jute Mills Ltd., held that the amount paid by the assessee for purchase of the loom hours was in the nature of capital expenditure and was therefore not deductible under section 10(2) (xv) of the Income Tax Act. Hence the appeal by assessee by special leave. Allowing the appeal, the Court ^ HELD: 1. An expenditure incurred by an assessee can qualify for deduction under section 10(2)(xv) only if it is incurred wholly and exclusively for the purpose of his business, but even if it fulfills this requirement, it is nob enough; it must further be of revenue as distinguished from capital nature 2. Maheshwari Devi Jute Mills ' case was a converse case where the question was whether an amount received by the assessee for sale of loom hours was m the nature of capital receipt or revenue receipt and the Supreme Court took the view that it was in the nature of capital receipt and hence not taxable. The decision in Maheshwari Devi Jute Mills ' case cannot on this account be regarded as an authority for the proposition that payment made by an assessee for purchase of loom hours would be capital expenditure, because it is not a universally true proposition that what may be capital receipt in the hands of the payee must necessarily be capital expenditure in relation to the payer. The fact that a certain payment constitutes income or capital receipt in the hands of a recipient is not material in determining whether the payment is revenue or capital disbursement qua the payer. Whether it is capital expenditure or revenue expenditure would have to be determined having regard to the nature of the transaction and other relevant factors. [1378 G H, 1379 A D] H Race Course Betting Control Board vs Wild, 22 Tax Cases 182. quoted with approval. 1372 3. Again, Maheshwari Devi Jute Mills ' Case proceeded on the accepted basis that loom hours were a capital asset and the only issue debated was whether the transaction in question constituted sale of this asset or it represented exploitation of the asset by permitting its user by another while retaining ownership. No question was raised before the Court as to whether tho loom hours were an asset at all nor was any argument advanced as to what was the true nature of the transaction. This question is res integra and therefore this decision cannot be regarded as an authority for the proposition that The amount paid for purchase of loom hours was capital and not revenue expenditure. [1379 E, 1380 F] 4. It is quite clear from the terms of the working time agreement that the allotment of loom hours to different mills constituted merely a contractual restriction on the right of every mill under the general law to work its looms to their full capacity. If there had been no working time agreement, each mill would have been entitled to work its looms uninterruptedly for twenty four hours a day throughout the week, but that would have resulted in production of jute very much in excess of the demand in the world market, leading to unfair competition and precipitous fall in jute price and in the process, prejudicially affecting all the mills and therefore with a view to protecting the interest of the mills who were members of the Association, the working time agreement was entered into restricting the number of working hours per week for which each mill could work its looms. The allotment of working hours per week under the working time agreement was clearly not a right conferred on a mill, signatory to the working time agreement. It was rather a restriction voluntarily accepted by each still with a view to adjusting the production to the demand in the world market and this restriction could not possibly be regarded as an asset of such mill. This restriction necessarily had the effect of limiting the production of the mill and consequentially also the profit which the mill could otherwise make by working full looms hours. But a provision was made in clause 6(b) of the working time agreement that the whole or a part of the working hours per week could be transferred by one mill to another for a period of not less than six months and if such transfer was approved and registered by the Committee of the Association, the transferee mill would be entitled to utilise the number of working hours per week transferred to it in addition to the working hours per week allowed to it under the working time agreement, while the transferor mill could cease to be entitled to avail of the number of working hours per week so transferred and those would be liable to be deducted from the number of working hours per week otherwise allotted to it. The purchase of loom hours by a mill had therefore the effect of relating the restriction on the operation of looms to the extent of the number of working hours per week transferred to it, so that the transferer mill could work its looms for longer hours than permitted under the working time agreement and increase is profitability. The amount spent on purchase of looms hours thus represented consideration paid for being able to work the looms for a longer number of hours. Such payment for the purchase of loom hours cannot be regarded as expenditure on capital account. [1380 F H, 1381 A E] 6. The decided cases have, from time to time, evolved various tests for distinguishing between capital and revenue expenditure but no test is amount or conclusive. There is no all embracing formula which can provide a ready solution to the problem; no touchstone has been devised. Every case has to be decided on its own facts keeping in mind the broad picture of the whole 1373 Operation in respect of which the expenditure has been incurred. Two of these tests are: (a) The test of enduring benefit as laid down in British Insulated and . Helsby Cables Ltd. vs Atherton, 10 Tax Cases 155. Even this test must yield were there are special circumstances leading to a contrary decision There may be cases where expenditure, even if incurred for obtaining advantage of enduring benefit, may, none the less, be on revenue account and the test one during benefit may break down. It is not every advantage of enduring nature acquired by an assesses that brings the case within the principle laid down in this test. What is material to consider is the nature of the advantage in a commercial sense. that it is only where the advantage is in the capital field that the expenditure would be disavowable on an application of this test. If the advantage consists merely in facilitating the assesses 's trading operations or enabling the management and conduct of the assesses 's business to be carried on more efficiently or more profitably while leaving the filed capital untouched. the expenditure would be on revenue account, even though tho advantage may endure for an indefinite future. The test of enduring benefit in therefore not a certain or conclusive test and it cannot be applied blindly and mechanically without regard to the particular facts and circumstances off a given case. [1381 E G, 1382 A E] commissioner of Taxes vs Nchanga Consolidated Copper Mines Ltd., followed. (b) The test based on distinction between fixed and circulating capital as applied in John Smith and Sons vs Moore, 12 Tax Cases, 266. So long as tho expenditure in question can be clearly referred to the acquisition of an asset which falls within one or the other of these two categories such a test would be a critical one. But this test also sometimes breaks down because there are many forms of expenditure which do not fall easily within these two categories and not infrequently, the line of demarcation is difficult to draw and leads to subtle distinctions between profit that is made "out of" assets and profit that is made "upon" assets or "with" assets. Moreover, there may be cases where expenditure though referable to or in connection with fixed capital is nevertheless allowable as revenue expenditure e.g. expenditure incurred in preserving or maintaining capital assets. This test is therefore clearly not one of universal application. [1383 A D] Commissioner of Taxes vs Nchanga Consolidated Copper Mines LTD [1965]58 ITR 241; followed. It is true that if disbursement is made for acquisition of a source of profit or income, it would ordinarily be in the nature of capital expenditure But it cannot be said in the present case that the assesses acquired a source d profit or income when it purchased loom hours. The source of profit or income was the profit making apparatus and this remained untouched and unaltered, There was no enlargement of the permanent structure of which the income would be the produce or fruit. What the assesses acquired wag merely an advantage in the nature of relation of restriction on working hours imposed by the working time agreement, so that the assesses could operate its profit earning structure for a longer number of hours. Undoubtedly the profit earn 1374 ing structure of the assesses was enabled to produce more goods, but that was not because of any addition or augmentation in the profit making structure but because the profit making structure could be operated for longer working hours. The expenditure incurred for this purpose was primarily and essentially related to the operation or working of the looms which constituted the profit earning apparatus of the assesses. It was an expenditure for operating or working the looms for longer working hours with a view to producing a larger quantity of goods and earning more income and was therefore in the nature of revenue expenditure. [1384 A D] 7. When dealing with cases where the question is whether expenditure incurred by an assesses is capital or revenue expenditure, the question must be viewed in the larger context of business necessity or expediency. If the outgoing expenditure is so related to the carrying on or the conduct of the business that it may be regarded as an internal part of the profit earning process and not for acquisition of an asset or a right of a permanent character. the possession of which is a condition of the carrying on of the business, the expenditure may be regarded as revenue expenditure. [1384 H, 1385 A C Nelletroms ' Property Ltd. vs Federal Commr. Of Taxation, ; ; Robert Addis & Sons Collieries Ltd. vs Inland Revenue 8 Tax Case, 671 quoted with approval. Bombay Steam Navigation Co. P. Ltd. vs Commissioner of Income Tax, ; followed. In the instant case (a) the payment made by the assesses for the purchase of loom hours was expenditure laid out as part of the process of profit earning. It was an outlay of a business in order to carry it on and to earn profit out of the expense as an expense of carrying it on. It was part of the cost of operating the profit earning apparatus and was clearly in the nature of revenue expenditure; and [1385 D E (b) the payment of Rs. 2,03,255/ made by the assesses for purchase of loom hours represented Revenue expenditure and was allowable as a deduction under section 10(2) (xv) of the Income Tax Act. [1387 C D] Commissioner of Income Tax v Nchanga Consolidated Copper Mines ltd. ; Commissioner of Taxes vs Curron Company 45 Tax Cases 18; followed.

109 of 1961. Writ Petition under article 32 of the Constitution of India for enforcement of the Fundamental Rights. M. O. Setalvad, Attorney General of India, B. R. L. Iyengar and K. P. Bhat, for the petitioner. A. V. Viswanatha Sastri, R. Gopalakrishnan and T. M. Sen, for the respondents. April 12. The Judgment of the Court was delivered by DAS GUPTA, J. The petitioner, who is the proprietor of the Shaheen Motor Service, used to ply a motor bus for hire on the route Archalli to Saravanabelgola in Hassan District in the State of Mysore. A scheme under section 68 C of the of 1939 having been published by the Mysore Transport Undertaking, the petitioner as one of the persons affected thereby filed objections to the scheme before the State Government under section 68 D(1) of the Act. The State Government however after considering the objections a, id hearing the petitioner approved the scheme, subject to a slight modification with which we arc not concerned. This approval was given on December 22, 1959. In pursuance of this approved scheme the State Transport Undertaking the 2nd respondent before us made applications for permits but before the Regional Transport Authority could issue such permits the present petition was filed praying, in the first place, for a writ of certiorari to quash the scheme and some consequential directions, and secondly for a wait of 911 "prohibition" to the Regional Transport Authority, Hassan District, who is the third respondent before us "to refrain from dealing with the applications for permit made by the 2nd respondent unless and until they are duly published and notice thereof is given to the petitioner and he is allowed to make his representation thereon regarding their compliance or otherwise with the conditions of section 68 F(1) of Chapter IV A. After learned counsel for the petitioner had been heard, this Court by its order dated March 21, 1961, granted leave to the petitioner to amend the writ petition so as to confine it to the second prayer only and directed a rule to issue only in respect of this second prayer. The only question with which we are therefore now concerned is whether a writ should issue prohibiting, the Regional Transport Authority, Hassan District, from dealing with the applications for permits made by the State Transport Undertaking "unless and until they are duly published and notice thereof is given to the petitioner and he is allowed to make his representations thereon". The petitioners case as regards this prayer is that under the law no permit can be granted to the State Transport Undertaking until the applications for permit have been duly published and notice has been given to the petitioner of those applications. In support of this proposition learned counsel advanced two arguments firstly, that section 57(3) in Chapter IV of the Act, requires such prior publication with notice of the date before which representations in connection with the application may be submitted and that in consequence of section 68 B of Chapter IV A the above provisions of section 57(3) of Chapter IV have to be followed. The second argument is that the Regional Transport Authority acts in a quasi judicial capacity when dealing with applications for permits made under section 68 F and so the petitioner who will be affected by the issue of the permits is entitled to notice. Section 68 B on which reliance has been placed provides inter alia that the provisions of Chapter IV A 912 shall have effect "notwithstanding anything inconsistent therewith contained in Chapter IV". It says nothing positive as regards any of the provisions of Chapter IV being applicable to matters under Chapter IV A but provides negatively that if any question arises as regards any provisions of the Act in Chapter IV A and there is difficulty in applying it on the ground that there is conflict between it and some provisions of Chapter IV, the provisions of Chapter IV A will prevail. Mr. Iyengar has argued that it is implicit in this provision that if there is no such difficulty all the provisions of Chapter IV will apply to matters dealt with under Chapter IV A. This argument, in our opinion, is fallacious. All that section 68 B pre supposes is that there are some provisions in Chapter IV which may apply to matters under Chapter IV A; on that assumption it proceeds to say that if on a matter to which provisions of Chapter IV would prima facie apply there is a provision in Chapter IV A also which appears applicable the provision in Chapter IV A will prevail to the extent of its inconsistency with the corresponding provision in Chapter IV. As to what provisions in Chapter IV will apply or not section 68 B says nothing and provides no guidance either expres sly or by implication. To find out whether a particular provision in Chapter IV (not being inconsistent with any provisions in Chap. IV A) will apply or not to a matter under Chapter IV A, we have to examine the matter in question and then decide whether it is of such a nature that it attracts that particular provision of Chapter IV. What then is the matter dealt with under section 68 F(1) with which we are concerned in the present case? Section 68 F(1) comes into operation when a scheme has already been approved by the State Government under section 68 D(2). In order that the approved scheme may be implemented the State Transport Undertaking which is to run and operate. the Transport Service under the scheme must have a permit from the Regio nal Transport Authority. Section 68 F(1) provides that the State Transport Undertaking will have to apply for a permit (i) in pursuance of the approved 913 scheme and (ii) in the manner specified in Chapter IV. Once that is done, the sub section proceeds to say " 'A Regional Transport Authority shall issue such permit to the State Transport Undertaking", and this "notwithstanding anything to the contrary contained in Chapter IV. " It appears clear to us that the provisions of section 57(3) have nothing to do with these matters dealt with by section 68 F(1). Section 57(3) lays on the Regional Transport Authority certain duties when it considers an application for a permit. These conditions are (1) to make the application available for inspection at the office of the Authority, (2) to publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date and the time and place at which the application and any representa tions, received will be considered. Under section 68 F(1) as already mentioned the Regional Transport Authority has no option to refuse the grant of the permit provided it has been made in pursuance of the approved scheme and in the manner mentioned in Chap. The duty of the Regional Transport Authority on receipt of the application from the State Transport Undertaking for a permit is therefore to examine the application for itself to see whether it is in pursuance of an approved scheme and secondly whether it has been made in the manner laid down in Chapter IV. This is a duty which the Regional Transport Authority has to perform for itself and there is no question of its asking for assistance from the public or existing permit holders for Transport Services on the route. Neither the public in general nor the permit holder has any part to play in this matter. The provisions of section 57(3) for making the application made under Chapter IV, available for inspection, for publishing the application or a substance thereof with a notice of the date by which the representations may be submitted and the date, time and place when the representations will be considered are required to enable the Regional Transport Authority to come to a 115 914 correct conclusion as to whether the application should be granted or not. An application not made in the manner laid down in Chapter IV will not be con sidered by the Regional Transport Authority at all. But the mere fact that it has been made in the proper manner will not entitle the applicant to a permit. it is the duty of the Regional Transport Authority to decide on a consideration of all relevant matters whether the application should be allowed. Other operators and even the public have a legal right to make representations to persuade the Authority not to grant the permit on the merits of the case. It is for this reason that there was necessity to make the provisions in sub section 3 of section 57 so that the Regional Transport Authority may receive every assistance in coming to a proper conclusion. When however a scheme prepared and published under section 68 C has been approved and an application has been made in pursuance of the scheme and in the proper manner as specified in Chapter IV nothing more remains to be decided by the Regional Transport Authority. The nature of the matter dealt with under section 68 F(1) is thus such as does not and cannot attract any of the provisions of section 57(3). It may be mentioned here that in Srinivasa Reddy. & Or.3. vs The State of Mysore & Ors. (1) a question was raised whether section 57(3) applied or not to an application made under section 68 F(1). The Court considered it unnecessary then to go into the matter as on the facts of that case it was found that the application had not been made in the manner provided in Chapter IV and was actually in breach of section 57(2) of the Act and so no permit could be issued on such an application. The provision in section 57(2) which was applicable to applica tions under section 68 F is that an application for a permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such application on such dates. In that case the Court held that this provision in section 57(2) is in reality a manner of making the (1) ; 915 application and consequently it applied to applications made under section 68 F(1). The provisions of section 57(3) cannot however be said to have anything to do with the manner of making the application and the nature of the matter dealt with under section 68 F(1) is such that provisions of section 57(3) are not attracted, The next argument is that the Regional Transport Authority functions as a quasi judicial authority when dealing with an application made by the State Transport Undertaking under section 68 F(1). It is said that as under section 68 F(2) the Regional Transport Authority may refuse to entertain an application for renewal of any other permit or cancel an existing permit or modify in certain matters the terms of an existing permit, for the purpose of giving effect to the approved scheme there is a lis between the existing permit holders and the State Transport Undertaking when an application under section 68 F(1) is dealt with. It appears to us that when deciding what action to take under section 68 F(2) the authority is tied down by the terms and conditions of the approved scheme and his duty is merely to do what is necessary to give effect to the provisions of the scheme. , The refusal to entertain applications for renewal of permits or cancellation of permits or modification of terms of existing permits really flow from the scheme. The duty is therefore merely mechanical; and it will be incorrect to say that there is in these matters any lis between the existing operators and the State Transport Undertaking which is to be decided by the Regional Transport Authority. There is no justification therefore for saving that when taking action under section 68 F(2) the regional Transport Authority is exercising a quasi judicial function. Apart from this it has to be pointed out that action under section 68 F(2) is really independent of the issue of the permits under section 68 F(1). Once the scheme has been approved, action under section 68 F(1) flows from it and at the same time action under section 68 F(2) flows from the same scheme. The argument that the Regional Transport Authority should be held to be exercising quasi judicial function in dealing with applications for permits under section 68 F(1) 916 because of the action it may take under section 68 F(2) therefore fails. It was next said that when the Regional Transport Authority issues the permit it can attach to the permit conditions under section 48(3) of the Act. Section 48(3) authorises the Regional, Transport Authority if it decides to grant a stage carriage permit, to attach to the permit any of the conditions specified in the subsection. It has to be noticed that section 68 F(1) does not speak of the "grant" of a permit but provides that the Regional Transport Authority shall "issue" a permit. In any case, if the Regional Transport Authority has to decide what conditions to attach to such a permit, it is not possible to say that it is then exercising a quasi judicial function. For, in deciding that matter the Regional Transport Authority is to have regard to the interests of the public but there is no question because of that, of any lis between the State Transport Undertaking on the one hand and the public on the other. In our opinion, the Regional Transport Authority acts wholly in a ministerial capacity while dealing with an application of the State Transport Undertaking under section 68 F(1). The fact that on other occasions and in other matters the Regional Transport Authority has quasi judicial functions to perform cannot make its function under, section 68 F(1) a quasi judicial function. Our conclusion therefore is that the petitioner 's contention that no permit can be granted to the State Transport Undertaking until the applications for permit have been duly published and notices have been given to the petitioner of these applications is unsound Consequently, the petitioner is not entitled to any relief. The petition is dismissed with costs. Petition dismissed.

After a scheme 'Was published by the Mysore Transport Undertaking under section 68 C of the , and approved by the State Government the State Transport Undertaking made applications for permits under section 68 F(1) of the Act to the Regional Transport Authority but before the permits were granted the second respondent made an application for a Writ of Certiorari prohibiting the Regional Transport Authority from dealing with the second respondent 's application for permit unless and until they were duly published and notice was given to him for making representations. The contention on his behalf was that the publication of the applications with notice of the (late for submitting the representations was necessary under section 57(3) Ch. IV of the Act and that lie was entitled to notice as the Regional Transport Authority acted in a quasijudicial capacity while dealing with applications for permits. Held, that when a scheme. prepared and published under section 68 C has been approved and in application has been made in pursuance of the scheme and in the proper manner as specified in Ch. IV nothing more remains to be decided by the Regional 910 Transport Authority and it has no option to refuse the grant of the permit. The nature of the matter dealt under.s. 68 F(1) is such as does not attract the provisions of section 57(3) which lays down certain duties on the Regional Transport Authority when it considers an application for a permit. The provisions of section 57(3) have nothing to do with the matters dealt with by section 68 F(1). Srinivasa Reddy vs State of Mysore, ; , referred to. When taking action under, section 68 F(1) the Regional Transport Authority does not exercise any quasi judicial function and acts wholly in a ministerial capacity.

The petitioners challenged the constitutional validity of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, which extended the provisions of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956, to Vidarbha and Kutch. That Act was declared valid by this Court in Sri Ram Narain Medhi vs The State of Bombay, [1950] Supp. 1 S.C.R. 489, and one of the reason , for doing so was that the lands covered by that Act fell within the definition of the word 'estate ' contained in the Bombay Land Revenue Code, 1879. The lands in question in the present petitions were situated in Amraoti and Yeotmal and the existing law relating to land tenures in force in that area was the Madha Pradesh Land Revenue Code, 1954. This Code did not employ the word ,estate ' and it was contended by the petitioners that the impugned Act was not within the protection of article 31A of the Constitution. Held, that the contention must fail. Although the Madhya Pradesh Land Revenue Code, 1954, did not employ the word 'estate ', the relevant definition contained in sections 2(17) and 2(18) of impugned Act and sections 2(7), 2(20) of the Code read with sections 145 and I46 thereof leaves no manner of doubt that the lands in the possession of the petitioners were tenures and in substance ,in estate. Since the petitioners held the lards tinder the State and paid land revenue for them, the lands fell within the class of local equivalents of the word 'estate. ' as contemplated by article 31A(2)(a) of the Constitution.

The respondent corporation appointed an expert committee to go into the question as to the working of nationalised transport in the State. The Committee laid down the criteria for determining the order in which 331 areas and routes had to be selected for nationalisation and had drawn up a list of the remaining districts in which nationalisation should be successively taken up. Accordingly, Nellore would have been the next district to be taken up and the turn of Kurnool district would have come up after nationalisation of the routes in Nellore, Chittore and Cuddapah districts were completed. This report was submitted to the Corporation in February, 1961 and the Corporation accepted it and embodied the approval in its Administration Report dated March 24, 1962 which was published in April, 1962. After the General Election in 1962 the Chief Minister assumed office as Chief Minister on March 12, 1962. On April 19, 1962, he summoned a conference of the Corporation at which, he suggested that the nationalisation of bus routes in the Kurnool district should be taken up first. By its resolution dated 4 5 1962, the Corporation made an alteration in the order of the districts, successively to be taken up for nationalisation and selected the western half of the Kurnool as the area to be nationalised in the first instance. The appellants, motor transport operators whose routes were all in western half of the Kurnool districts filed objections to the Schemes before the Transport Minister. The Transport Minister approved the schemes. Thereafter, the Corporation applied to the Regional Transport Authority for permits. The appellants then challenged the validity of the schemes in the High Court and in support of that allegations were made in the affidavit that the Chief Minister was motivated by bias and personal ill will against the appellants, that he felt chagrined at the defeat of his partymen and supporters and desiring to wreak his vengeance against the motor transport operators of the western parts of Kurnool, his political opponents, instructed the Corporation to change the order in which the districts should be taken up for nationalisalion and that the corporation gave effect to these instructions and directions. These allegations were not denied by the Chief Minister, nor was an affidavit filed by any person who could claim to know personally about the truth about these allegations. The High Court repelled these allegations and dismissed the petition. On appeal by certificate the appellants mainly contended: (1) that the schemes did not in reality reflect the opinion of the Corporation as required by section 68 C of the Act, but that the schemes owed their origin to the direction of the Chief Minister who acted malafide in directing the Transport Undertaking to frame the impugned schemes; (2) that the approval of the schemes by the Transport Minister under section 68 D(3) must be held to be vitiated by the malafides of the Chief Minister; (3) that the impugned schemes did not conform to the statutory requirements of section 68 C and rule 4 of the Rules regarding the particulars to be embodied in the schemes; (4) that some of the routes included in the schemes were inter state routes and that under the proviso to section 68 D(3) it could not be deemed to be an approved scheme unless the previous approval of the Central Government had been ob tained and (5) that even when a transport undertaking applies for a stage carriage permit under section 68 F(1) it must comply with the provisions of r. 141 of the Rules. Held: (1) On the evidence placed in the present case it must be held that it was a result of the conference of the 19th April, 1962 and in 332 order to give effect to the wishes of the Chief Minister expressed there, that the impugned schemes were formulated by the Corporation and therefore, it would be vitiated by malafides notwithstanding the interposition of the semi autonomous corporation. Though the counter affidavits contained a denial of the allegation that the Corporation was acting at the behest of the Chief Minister, there was no explanation for the choice of the western portion of Kurnool district Therefore, the impugned schemes were vitiated by the fact that they were not in conformity with the requirements of section 68 C of the Act. (ii) There was nothing on the record to indicate that the Chief Minister influenced the Transport Minister. Besides, the Transport Minister stated on oath that in considering the objections under section 68 D(3) and approving the schemes he was uninfluenced by the Chief Minister. Therefore, it cannot be held that his approval of the schemes did not satisfy the requirements of the law. (iii) In the present case some of the variations between the maxima and minima in the number of the vehicles proposed to be operated on each route were such as to really contravene r. 4 of the Andhra Pradesh Motor Vehicles Rules. Dosa Satyanarayanamurthy vs The Andhra Pradesh State Transport Corporation, , referred to. (iv) The route which was proposed to be nationalised under the scheme admittedly lay wholly within the State. The right of the private operators to ply their vehicles beyond the State border was not affected by any of the schemes. Therefore, the proviso to section 68 D(3) was not attracted and consequently the schemes did not suffer from the defects alleged. (v) The High Court was right in holking that the Regional Transport Authority which is specifically mentioned in section 68 F(1) is empowered to issue the permit to the transport undertaking "notwithstanding anything to the contrary contained in Chapter IV" and that the section rendered the provisions of r. 141 of the Motor Vehicles Rules inapplicable to cases covered by section 68 F(1). No doubt, in a State where there is no Regional Transport Authority at all, but there is some other authority which functions as the Regional Transport Authority for the purposes of the Act, such an authority might be that which would be comprehended by section 68 F(1) but where as in Andhra Pradesh there is admittedly a Regional Transport Authority, it cannot be held that such authority is deprived of the power to issue a permit by reason of section 68 F(1) merely because the Regional Transport Authority of that area cannot grant permits under Chapter IV. 333

These appeals impugned the constitutionality of the Uttar Pradesh Transport Service (Development) Act, 1955 (U. P. IX Of 1955), passed by the State Legislature after obtaining the assent of the President, and the validity of the scheme of nationalisation framed and the notifications issued by the State Government under it. The appellants as permit holders under the , were plying buses on different routes in Uttar Pradesh along with buses owned by the State Government. The State Government issued a notification under section 3 Of the impugned Act directing that the said routes along with others should be exclusively served by the State buses, and followed up that notification by others under ss 4 and 8 of the Act. The appellants moved the High Court under article 226 of the Constitution challenging the validity of the said Act and the notifications thereunder. The High Court rejected their petitions and thereafter came into force the Motor Vehicles (Amendment) Act (100 Of 1956), inserting Ch. IVA into the Act, which provided for nationalisation of transport services. The contentions raised on behalf of the appellants were, (1) that the passing of the Amending Act made the impugned Act wholly void under article 254(1) Of the Constitution, (2) that the scheme framed under the impugned Act fell within the purview of section 68B of the Amending Act and ceased to be operative and (3) that even 'assuming that the impugned Act was valid in so far as the scheme was concerned, it violated article 31 as it stood before the Constitution (Fourth Amendment) Act, 1955. A further contention on the basis of the proviso to article 254(2) was that the impugned Act stood wholly repealed by the Amending Act, section 68B of the latter excluding the operation of the General Clauses Act. It was contended, inter alia, on behalf of the State that the amendment of article 31 by the Constitution (Fourth Amendment) Act, 1955, having removed, before the scheme under the impugned Act had 9 yet been framed, the constitutional limitation which that Article had imposed on the Legislature when it passed the impugned Act, had the effect of validating that Act passed by it at a time when it was subject to the limitation. Held, (per curiam), that the Uttar Pradesh Transport Service (Development) Act, 1955, did not, on the passing of the Motor Vehicles (Amendment) Act, 1956 (100 of 1956), become wholly void under article 254(1) Of the Constitution but continued to be a valid and subsisting law supporting the scheme already framed under the U.P. Act. Even assuming that the Amending Act had the effect, under article 254(2), of repealing the State Act, such repeal could not nullify the scheme already framed under that Act, for the provisions of section 6 of the General Clauses Act would operate to save it. Nor could it be said, having regard to the provisions of the impugned Act and particularly section II(5) thereof, that it offended article 31 of the Constitution as it stood before the Constitution (Fourth Amendment) Act, 1955, by failing to provide for the payment of adequate compensation. Per Das, C.J., and Sinha J. There was no reason why the doctrine of eclipse as explained in Bhikaji Narain Dhakras vs The State of Madhya Pradesh, ; , could not also apply to a post Constitution law that infringed a fundamental right conferred on citizens alone. Such a law, though shadowed and rendered ineffective by the fundamental right so far as the citizens were concerned, would remain effective so far as noncitizens were concerned. The moment the shadow was removed by a constitutional amendment, the law would apply to citizens without re enactment. John M. Wilkerson vs Charles A. Rahrer, ; ; ; and Bhikaji Nayain Dhakras vs The State of Madhya Pradesh, ; , referred to. The question whether a post Constitution law that infringed a fundamental right guaranteed to all persons, citizens or noncitizens ' would be subject to that doctrine should, however, be left open. Held, (per Bhagwati, Subba Rao and Wanchoo, jj.), that it was apparent from the provisions of articles 254, 246 and 13 of the Constitution, read together, that the power of Parliament and the State Legislature to make laws with regard to any of the matters enumerated in the relevant list in the Seventh Schedule was subject to the provisions of the Constitution including article 13. There was a clear distinction between the two clauses of article I3. Under cl. (1), pre Constitution law subsisted except to the extent of its inconsistency with the provisions of Part III whereas under Cl. (2) any post Constitution law contravening those provisions was a nullity from its inception to the extent of such contravention. The words "any law" in the second line of 2 Cl. (2) meant an. Act factually passed in spite of the prohibition contained therein, and did not pre suppose that the law made was not a nullity. That prohibition went to the root and limited the State 's power of legislation and law made in spite of it was a still born one. In construing the constitutional provisions relating to the powers of the legislature embodied in articles 245 and 13(2) of the Constitution, no distinction should be made as between an affirmative and a negative provision, for both are limitations on that power. K. C. Gajapati Narayan Deo vs The State of Orissa, ; , referred to. A distinction, well recognised in judicial decisions, had, however, to be made in judging the effect of law made in transgression of the limits fixed by articles 245 and I3(2), between an Act that was void from its inception and one that, though valid when made, was rendered unconstitutional later on. On that distinction was based the principle that an after acquired power could not validate a statute and a law validly made could take effect when the obstruction was removed. A review of the relevant authorities and judicial decisions clearly established, (1) that affirmative conferment of power to make laws subject wise and the negative prohibition from infringing any fundamental rights were but two,,aspects of want of legislative power, (2) that by expressly making the power to legislate on the entries in the Seventh Schedule subject to other provisions of the Constitution, that power was subjected to the limitations laid down in Part III of the Constitution, (3) that, therefore, a law in derogation or in excess of such power would be void ab initio either wholly or to the extent of the contravention and that (4) the doctrine of eclipse could be invoked only in the case of a law that was valid when made but was rendered invalid by a supervening constitutional inconsistency. Newberry vs United State, ; 65 L. Ed. 9I3; John M. Wilkerson vs Charyles A. Rahrer, (1891) 140 U. section 545; ; ; Carter vs Egg and Egg Pulp Marketing Board, ; ; Keshavan Madhava Menon vs The State of Bombay, ; ; Behram Khurshed Pesikaka vs The State Of Bombay, [1955) 1 S.C.R. 589; Saghir Ahmed vs The State of U. P. ; ; Ram Chandra Balai vs State of Orissa, and Pannalal Binjraj vs Union of India; , , referred to and discussed. The tests of repugnancy between two statutes, one passed by the Parliament and the other by the State Legislature, were, (1) whether there was a direct conflict between them, (2) whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature, and (3) whether both the laws occupied the same field. A comparison of the provisions of the two Acts indicated 11 that both were intended to operate in respect of the same subject matter and the same field but only in respect of the schemes initiated after the Amending Act had come into force, the latter Act having no retrospective effect. The State Act must, therefore, yield place to the Central Act to that extent and become void only in respect of schemes framed under the Central Act. Keshavan Madhava Menon vs The State of Bombay, [1951] S.C.R. 228, applied.

The respondent sued the State of Bihar for a declaration that the Bihar Land Reforms Act, 1950, was ultra vires, void and unconstitutional and for a permanent injunction restraining the State and its officers or agents from issuing any notification thereunder in respect of her estate or taking possession thereof and on a petition filed along with the plaint obtained an order of temporary injunction against the State in terms of her prayer, pending the hearing of the suit. More than a year thereafter, the State made an application under 0. 39, r. 4 of the Code for a discharge of the order of temporary injunction on the ground that the impugned Act had in another case been declarer valid by the Supreme Court. Before that application could, however, be heard, the State of Bihar, on May 19, 1952 issued a notification under section 3(1) of the Act, authenticated by the Additional Secretary to the Government, declaring that, amongst others, the respondent 's estate had vested in the State of Bihar under the provisions of the Act. Thereupon the respondent moved the trial Court for taking action against the State under 0. 39, r. 2(3) of the Code. The contention on behalf of the State was that in view of article 31 B of the Constitution the issue of the notification was lawful and could not constitute contempt of Court. The Subordinate judge held that this was no defence to the application by the respondent and directed attachment of the appellant 's property to the value of Rs. 5,000 and the High Court on appeal affirmed that decision. Held, that the courts below took the correct view of the matter and that the appeal must be dismissed. The procedure laid down by 0. 39, r. 2(3) of the Code of Civil Procedure is remedial and essentially one for the enforcement or execution of an order of temporary injunction passed under 0. 39, r. 2(1) and is available against the State although the provision for detention may not apply to it. It is wrong to say that it is either contrary to article 300 of the Constitution or hit by the rule that no action lies against the State in tort or for a wrong doing entailing punishment or compensation. District Board of Bhagalpur vs Province of Bihar, A.I.R. 1954 729 Pat. 529 and Tarafatullah vs section N. Maitra, A.I.R. 1952 Cal. gig, distinguished. There is also no basis for the contention that the State is not expressly or by necessary implication mentioned in 0. 39, r. 2(3). The word 'person ' used by it, properly construed, includes the defendant against whom the order of injunction is primarily issued as also the defendant 's agents, servants and workmen. Since the court 's power to issue an order of temporary injunction against the State under 0. 39, r. 2(1) cannot be in doubt, disobedience of such an order when issued necessarily attracts 0. 39, r. 2(3) of the Code. Director of Rationing & Distribution vs Corporation of Calcutta, ; , held inapplicable. Held, further, that when once an order is passed which the Court has jurisdiction to pass, it is the duty of the State no less than any private party to obey it so long as it stands, and the conduct of the State Government in the instant case in issuing the notification at a time when its application for vacating the injunction was still pending and the attitude taken up by it after the application under 0. 39, r. 2(3) was made and persisted in till the end must be disapproved.

The appellant and respondent No. 2 along with others applied for stage carriage permits for two routes and the Regional Transport Authority granted a permit for one route to the appellant and for the other route to the respondent No. 2. Both appealed to the Central Road Traffic Board but the appeals were dismissed. Neither the Regional Authority nor the Board recorded any finding as to which of them had the better facilities for transport operation or that they were of equal merit. They applied to the State Government under section 64 A of the Motor Vehicles Act of 1939 as amended by the Motor Vehicles (Madras Amendment) Act of 1948 and the State Government set aside the orders passed by the said subordi nate authorities and issued permits for both the routes to the respondent No. 2 on the ground that he had better facilities for operation and would serve the public better. Against this order of the State Government the appellant moved the High Court for a writ of certiorari and a single Judge issued the writ. On a Letters Patent appeal that decision was set aside. The appellant contended that the State Government had acted in excess of its powers under section 64 A of the Act in setting aside the orders of the subordinate authorities and that the section itself was invalid. Held, that the State Government was within its powers in passing the order it did and the appeal must be dismissed. That it was within the competence of the State Legislature to insert section 64 A into the Act and its legality could not be questioned and the clear intention of the legislation was to empower the State Government to decide the legality, regularity or propriety of any orders passed by the subordinate authorities in the interest of the general public. That the State Government was the final authority to decide which of the rival applicants had the better facilities for operation of the bus service and where it bad come to a decision in favour of an applicant, its decision could not be interfered with under article 226 of the Constitution merely because its view might be erroneous.

Rule 268 of the Madras Motor Vehicles Rules, 1940, as it originally stood did not empower the Transport Authority to alter from time to time the starting places and termini for motor vehicles. The rule was amended in 1950 so as to empower the Transport Authority to do so, and after giving notice to the appellant who was the owner of a bus stand in a municipality, which was being used for several years as the starting place and terminus for motor buses plying to and from the municipality, the Transport Authority passed a resolution changing the starting place and terminus for the convenience of the public. The appellant applied for a writ of certiorari contending that r. 268 as amended was ultra vires as it went beyond the rule making powers conferred by section 68 (2) (r) of the and was also repugnant to article 19 (1) (g) of the Constitution: Held, (i) that the fixing and alteration of bus stands was not a purpose foreign to the " control of transport vehicles ", the purpose for which rules could be made under section 68 (1), and the power to make rules prohibiting the picking up or setting down of passengers at specified places mentioned in section 68 (2) (r) necessarily included the power to alter the situation of bus stands, and r. 268 as amended did not therefore go beyond section 68 (2) (r) ; (ii) the restriction placed upon the use of the bus stand for the purpose of picking up or getting down passengers to or from outward journeys cannot be considered to be an unreasonable restriction on the right to carry on any profession, trade or business of the appellant, and r. 268 was not in any way repugnant to article 19 (1) (g) of the Constitution. The expression " duly notified stand " in the Madras means a stand duly notified by the Transport Authority. There is no warrant for the view that it means a stand 291 notified by the municipality. The provisions of section 270 (b), (c) and (e) do not affect the power of the Transport Authority to regulate traffic control or impose restrictions upon the licence of cart stands.

In order to promote all India and inter state tourist traffic, the Parliament amended the by introducing in it sec. 63(7) which enabled the State Transport Authority of every State to grant permits valid for the whole or any part of India, in respect of such number of tourist vehicles as may be specified by the Central Government. Later the Central Government notified that each State Transport Authority could issue 50 all India permits for tourist omnibuses. As each State had the right, within its territory, to levy a tax on a motor vehicle, it was found that unless tourist vehicles with all India permits were exempted from tax by other States than their home state the object of sec. 63(7) would be frustrated. Therefore, the Central Government made a request in this behalf to all the State Governments. In pursuance of that request the Government of Karnataka exempted tourist vehicles holding permits under sec. 63(7) from payment of tax, provided the tax payable to the State in which the vehicle was registered had already been paid and provided further that similar exemption from payment of tax was granted in respect of similar vehicles to the State of Karnataka. Many transport operators from big and comparatively prosperous States flocked to some small and comparatively poor and less advanced States and after getting all India permits from them started plying their vehicles in other States like Karnataka and Maharashtra more or less as regular stage carriages. Having found that the transport operators were misusing the all India permits and indulging in certain malpractices, the Government of Karnataka withdrew the exemption from payment of tax granted earlier. The petitioners, who were transport operators holding all India permits, challenged the withdrawal cf exemption as unconstitutional and bad in law. The petitioners submitted that sec. 63(7) of the was designed to promote all India and inter state tourist traffic and thus to advance trade, 625 commerce and inter course throughout the territory . Of India. By withdrawing the exemption, the object of sec. 63(7) was defeated and therefore, freedom of trade. Commerce and inter course throughout the territory of India, guaranteed by article 301 of the Constitution was impaired. Dismissing the petitions, ^ HELD: By withdrawing the exemption there is no impairment of the freedom under article 301. [637 B] Taxes of a compensatory and regulatory character are outside the expanse of article 301 of the Constitution. Regulatory measures and compensatory taxes far from impeding the free flow of trade and commerce, often promote such free flow of trade and commerce by creating agreeable conditions and providing appropriate services. All that is necessary to uphold a tax which purports to be or is claimed to be a compensatory tax is, the existence of a specific, identifiable object behind the levy and a nexus between subject and the object of a levy. Once the nexus between the levy and service is seen, the levy must be upheld unless the compensatory character is shown to be wholly or partly a mere mockery and in truth a design which is destructive of the freedom of inter state trade, commerce and inter course. [635 C D, 636 A] International Tourist Corporation vs State of Haryana, ; referred to. By virtue of the power given to them by Entries 56 or 57 of List II every one of the States has the right to make its own legislation to compensate it for the services, benefits and facilities provided by it for motor vehicles operating within the territory of the State. Taxes resulting from such legislative activity are by their very nativity and nature, cast and character, regulatory and compensatory and, are therefore, not within the vista of article 301, unless the tax is a mere pretext designed to injure the freedom of inter state trade, commerce and inter course. The nexus between the levy and the service is so patent in the case of such taxes that one need say no more about it. The Karnataka Motor Vehicles Taxation Act and the Motor Vehicles Taxation Acts of other States are without doubt regulatory and compensatory legislation outside the range of article 301 of the Constitution. [635 B D] `Taxes on vehicles . suitable for use on roads ' is a State legislative subject and it is for the State Legislature to impose a levy and to exempt from the levy. Entry 57 of the State List is subject to Entry 35 of the Concurrent List and, it is therefore open to the Parliament to lay down the principles on which taxes may be levied on mechanically propelled vehicles. But the Parliament while enacting sec. 63(7) of the refrained from indicating any such principles, either expressly or by necessary implication. The State 's power to tax and to exempt was left uninhibited. It may be that a State Legislation, plenary or subordinate, which exempts "non home state tourist vehicles" from tax would be advancing the object of sec. 63(71, but 626 the State Legislature are not obliged to fall in line line and to so arrange their tax laws as to advance the object of sec. 63(7), be it ever so desirable. The State is obliged neither to grant an exemption nor to perpetuate an exemption once granted. There is no question of impairing the freedom under article 301 by refusing to exempt or by withdrawing an exemption. [636 E 637 A]

305/1960. Petition under Article 32 of the Constitution of India for enforcement of Fundamental Rights. Petitioner in person. H. N. Sanyal, Additional Solicitor General of India pond R. H. Dhebar, for the respondents, 441 1961. January 12. The Judgment of the Court was delivered by SUBBA RAO, J. This is a; petition under article 32 of the Constitution for an order in the nature of habeas corpus claiming that the petitioner has justly served his sentence and should, therefore, be released. On February 10, 1949, the Judge, Special Court, Red Fort, Delhi, convicted the petitioner for offences under section 3, read with section 6, of the Explosive Substances Act, under section 4(b) and section 5 thereof, I and for murder under section 302, read with section 109, of the Indian Penal Code; for the first two offences he was sentenced to seven years ' rigorous imprisonment and five years rigorous imprisonment respectively and for the third offence to transportation for life and all the sentences were directed to run concurrently. After conviction he was imprisoned in jails in the State of Punjab till May 19, 1950, and thereafter he was transferred to Nasik Road Central Prison in the State of Bombay (now Maharashtra). According to the petitioner, he has earned the following remissions up to September 30, 1960: (a) Ordinary remission . 836 days (b) Special remission . 206 days (c) Physical training remission . 113 days (d) Literary remission . 108 days (e) Annual good conduct remission . 250 days (f) State remission . 1380 days The total of the remissions earned is 2,893 days; but the State in its counter affidavit state that the petitioner has earned up to the said date remission of 2,963 days. The figure given by the State may be accepted as correct for the purpose of this petition. If the amount of remissions thus earned was added to the term of imprisonment the petitioner has actually served, the aggregate would exceed 20 years, and even if only the State remission was added to it, it would exceed 15 years. The petitioner, claiming that under the relevant provisions governing his imprisonment his further detention in jail would be illegal, prays that he might be set at liberty forthwith. The State, while conceding that he has earned remissions 56 442 &mounting to 2,963 days, alleged in the counter affidavit that the remissions earned did not entitle him to be released and that under the rules the question of his release would be considered only after he completed 15 years ' actual imprisonment. The petitioner argued his case in person. He rejected the help of an advocate as amicus curiae to assist him. In the circumstances, his argument was based more on emotional plane than on legal basis. But as the liberty of a citizen is involved, we have gone through the relevant provisions and considered the possible contentions that may be raised on the basis of the said provisions. The first question that falls to be decided is whether, under the relevant statutory provisions, an accused who was sentenced to transportation for life, could legally be imprisoned in one of the jails in India; and if so, what was the term for which he could be so imprisoned. We shall briefly notice the relevant provisions of the Indian Penal Code before it was amended by the Code of Criminal Procedure (Amendment) Act XXVI of 1955. Section 53 of the Indian Penal Code set out six different punishments to which offenders were liable. The second of those punishments was transportation and the fourth was imprisonment which was of two descriptions, namely, rigorous and simple. The word " transportation " was not defined in the Indian Penal Code, but it was for life with two exceptions. Under section 55 of the Indian Penal Code, " In every case in which sentence of transportation for life shall have been passed, the Provincial Government of the Province within which the offender shall have been sentenced may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years. " Under section 58 thereof, in every case in which a sentence of transportation was passed, the offender, until he was transported, should be dealt with in the same manner as if sentenced to rigorous imprisonment and should be held to have been undergoing his sentence of transportation during the term of his imprisonment. It was averred on behalf of the 443 State that the petitioner 's sentence had not been commuted under section 55 of the Indian Penal Code or under section 402 (1) of the Code of Criminal Procedure to one of rigorous imprisonment. We have no reason for not accepting this statement. On that basis, a question arises whether the petitioner, who was sentenced to transportation, could be dealt with legally as if he were a person sentenced to rigorous imprisonment. This question was raised before the Judicial Committee of the Privy Council in Pandit Kishori Lal vs King Emperor(1). After considering the history of the sentence of transportation, the relevant provisions of the Indian Penal Code, the Code of Criminal Procedure and the Prisons Act, the Privy Council came to the conclusion that the said provisions made it plain that when a sentence of transportation had been passed it was no longer necessarily a sentence of transportation beyond the seas. It was observed at p. 9 thus: " 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, where he will be dealt with in the same manner as a prisoner sentenced to rigorous imprisonment. " In view of this weighty authority with which we agree, it is not necessary to consider the relevant provisions, particularly in view of section 53A of the Indian Penal Code which has been added by Act XXVI of 1955. Section 53A of the said Code reads: "(1). . (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, 1954, the offender shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the same term. (1) (1944) L.R. 72 I.A. I, 444 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 none. 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. If so, the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act. Though the Government of India stated before the Judicial Committee in the case cited supra that, having regard to section 57 of the Indian Penal Code, 20 years ' imprisonment was equivalent to a sentence of transportation for life, the Judicial Committee did not express its final opinion on that question. The Judicial Committee observed in that case thus at p. 10: " Assuming that the sentence is to be regarded as one of twenty years, and subject to remission for good conduct, he had not earned remission sufficient to entitle him to discharge at the time of his application, and it was therefore rightly dismissed, but in saying this, their Lordships are not to be taken as meaning that a life sentence must and in all cases be treated as one of not more than twenty years, or that the convict is necessarily entitled to remission. " Section 57 of the Indian Penal Code has no real bearing on the question raised before us. For calculating fractions of terms of punishment the section provides that transportation for life shall be regarded as equivalent to imprisonment for twenty years. It does not say that transportation for life shall be deemed to be transportation for twenty years for all purposes; nor does the amended section which substitutes the words imprisonment for life " for " transportation for life enable the drawing of any such all embracing fiction. A sentence of transportation for life or 445 imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person 's natural life. It is said that the Bombay rules governing the remission system substituted a definite period for life imprisonment and, therefore, if the aggregate of the term actually served exceeds the said period, the person would be entitled to be released. To appreciate this contention the relevant Bombay rules may be read. Release. Rule 934. " In a11 cases of premature releases, orders under Section 401, Criminal Procedure Code, will have to be issued by Government before the prisoners can actually be released from Jail. " Rule 937. (c) " When a life convict or a prisoner in whose case the State Government has passed an order forbidding his release without reference to it, has earned such remission as would entitle him to release but for the provisions of this rule, the Superintendent shall report accordingly to the State Government through the Inspector General in order that his case may be considered with reference to Section 401 of the Code of Criminal Procedure, 1898. " The Remission System: Rule 1419. (c) " A sentence of transportation for life shall ordinarily be taken as 15 Years ' actual imprisonment." Review of Sentences: Rule 1447. (2) " Notwith standing anything contained in rule 1419 no prisoner who has been sentenced to transportation for life or more than 14 years, imprisonment or to transportation and imprisonment or to transportation and imprisonment for terms exceeding in the aggregate 14 years shall be released on completion of his term of transportation or imprisonment or both, as the case may be, including all remissions unless a report with respect to such prisoner has been made under sub.rule (1) and orders of Government have been received thereon with regard to the date of his final release. " It is common case that the said rules were made under the , and that they have 446 statutory force. But the does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act. The rules, inter alia, provide for three types of remissions by way of rewards for good conduct, namely, (i) ordinary, (ii) special and (iii) State. For the working out of the said remissions under rule 1419(c), transportation for life is ordinarily to be taken as 15 years ' actual imprisonment. The rule cannot be construed as a statutory equation of 15 years ' actual imprisonment for transportation for life. The equation is only for a particular purpose, namely, for the purpose of " remission system " and not for all purposes. The word " ordinarily " in the rule also supports the said construction. The non obstante clause in sub rule (2) of rule 1447 reiterates that notwithstanding anything contained in rule 1419 no prisoner who has been sentenced to transportation for life shall be released on completion of his term unless orders of Government have been received on a report submitted to it. This also indicates that the period of 15 years ' actual imprisonment specified in the rule is only for the purpose of calculating the remission and that the completion of the term on that basis does not ipso facto confer any right upon the prisoner to release. The order of Government contemplated in rule 1447 in the case of a prisoner sentenced to transportation for life can only be an order under section 401 of the Code of Criminal Procedure, for in the case of a sentence of transportation for life the release of the prisoner can legally be effected only by remitting the entire balance of the sentence. Rules 934 and 937(c) provide for that contingency. Under the said rules the orders of an appropriate Government under section 401, Criminal Procedure Code, are a prerequisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a 447 prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The rules under the do not substitute a lesser sentence for a sentence of transportation for life. Briefly stated the legal position is this: Before Act XXVI of 1955 a sentence of transportation for life could be undergone by a prisoner by way of rigorous imprisonment for life in a designated prison in India. After the said Act, such a convict shall be dealt with in the same manner as one sentenced to rigorous imprisonment for the same term. Unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life, term in prison. The rules framed under the enable such a prisoner to earn remissions ordinary, special and State and the said remissions will be given credit towards his term of imprisonment. For the purpose of working out the remissions the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that particular purpose and not for any other purpose. As the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death. That is why the rules provide for a procedure to enable the appro priate Government to remit the sentence under section 401 of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned. The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release. 448 The petitioner made an impassioned appeal to us that if such a construction be accepted, he would be at the mercy of the appropriate Government and that the said Government, out of spite, might not remit the balance of his sentence, with the result that he would be deprived of the fruits of remissions earned by him for sustained good conduct, useful service and even donation of blood. The Constitution as well as the Code of Criminal Procedure confer the power to remit a sentence on the executive Government and it is in its exclusive province. We cannot assume that the appropriate Government will not exercise its jurisdiction in a reasonable manner. For the foregoing reasons we hold that the petitioner is under legal detention and the petition for habeas corpus is not maintainable. The petition is dismissed. Petition dismissed.

The petitioner was convicted in 1949 and sentenced to trans portation for life. He earned remission of 2963 days and adding this to the term of imprisonment actually served by the petitioner the aggregate exceeded 20 years. The petitioner contended that his further detention in jail was illegal and prayed for being set at liberty: Held, that the petitioner had not yet acquired any right to be released. A sentence of transportation for life could be undergone by a prisoner by way of rigorous imprisonment for life in a designated prison in India. Section 53A of the Indian Penal Code, introduced by the Code of Criminal Procedure (Amendment) Act, 1955, provided that any person sentenced to transportation for life before the Amendment Act would be treated as sentenced to rigorous imprisonment for life. A prisoner sentenced to life imprisonment was bound to serve the remainder of his life in prison unless the sentence was commuted or remitted by the appropriate authority. Such a sentence could not be equated with any fixed term. The rules framed under the Prisons Act entitled such a prisoner to earn remissions but such remissions were to be taken into account only towards the end of the term. The question of remissions was exclusively within the province of the appropriate Government. In the present case though the Government had made certain remissions under section 401 of the Code of Criminal Procedure, it had not remitted the entire sentence. Pandit Kishori Lal vs King Emperor, (1944) L.R. 72 I.A. , referred to.

The petitioner, a West German subject, was placed under pre ventive detention by an order of the West Bengal Government under section 3(1)(b) of the on the ground that he was a foreigner within the meaning of the and that it had become necessary to make arrangements for his expulsion from India and therefore he was required to be detained until the issue of an appropriate order from the Central Government. The questions for determination in the case were: (i) whether section 3(1)(b) of the was ultravires the Constitution inasmuch as it contravenes articles 14, 21 and 22 of the Constitution and whether it was beyond the legislative competence of Parliament to enact such a law; (ii)whether, in any event, the detention was invalid as it was made in bad faith. Held that the impugned portion of the and section 3(2)(c) of the on which it is based are not ultra vires the Constitution inasmuch as; (i)in view of Entry 9 and Entry 10 of the Union list of the Seventh Schedule to the Constitution, the language of which must be given the widest meaning, the legislative competence of Parliament to deal with the question of preventive detention of foreigners 1285 is clear and this covers not only section 3(1)(b) of the but also the , in so far as it deals with the powers of expulsion and the right of the Central Government to restrict the movements of foreigners in India and prescribe the place of their residence and the ambit of their movements in the land; (ii)the was a comprehensive Act dealing with preventive detention and was framed with the Limitations of articles 21 and 22 in view. Section 3(1)(b) of the was enacted to bring the unrestrained power given by section 4(1) of the into line with the provisions of the Constitution; (iii)section 3 (1) (b) of the is reasonably related to the purpose of the Act, namely preventive detention, inasmuch as the right to expel a foreigner conferred by section 3(2) of the on the Central Government and the right to make arrangements for expulsion include the right to make arrangements for preventing any breach or evasion of the order; and the confers the power to use the means of preventive detention as one of the methods of achieving this end; (iv)the State Government is competent to make an order of detention under the law in anticipation of an order of expulsion that is about to be made, or which may be made by the Central Government on the recommendation of the State Government which, though seized with certain powers of Government is not competent to make an order of expulsion itself. Unless a State Government has authority to act in anticipation of orders from the Centre it might be too late to act at all; (v)the impugned section does not offend article 14 of the Con stitution inasmuch as differentiation between foreigner and foreigner as envisaged in section 2(a) and section 3(2)(c) of the and section 3(1)(b) of the is based on a reasonable and rational classification. There is no individual discrimination, and reasons of State may make it desirable to classify foreigners into different groups On the question of good faith, held, that the circumstance of the case did not show bad faith on the part of the West Bengal Government. The is not governed by the provisions of the Extradition Act 1870. The two are distinct and neither impinges on the other. Even if there is a requisition and a good case for extradition, Government is not bound to accede to the request. It is given an unfettered right to refuse, vide section 3(1) of the Extradition Act, and has got an absolute discretion to choose the less cumbrous procedure of the when a foreigner is concerned. As the Government is given the right to choose, no question of want of good faith can arise merely because it exercises the right of choice which the law confers.

% The petitioners were convicted and sentenced by the General Court Martial under the and lodged in Civil Jails. They sought a set off of their pre trial detention against the sentence of imprisonment. The jail and army authorities rejected their claim. They moved this Court for relief by writ petitions. Dismissing the petitions, the Court, ^ HELD: The petitioners have been convicted and sentenced under the . The is a special enactment containing elaborate procedure for the trial of the persons covered thereunder. In view of the various provisions in the , the petitioners cannot call into aid section 428 of the Code of Criminal Procedure. They may be entitled to remissions as provided in the jail manuals but not a set off under sec. The benefit of section 428 cannot be claimed by a person convicted and sentenced by a Court Martial under the , as held by the Punjab and Haryana High Court in Bhagwan Singh vs The Asstt. Superintendent, The High Courts of Delhi and Madras have also held likewise. But in Subramonian vs O.C. Armoured Static Workshop, contrary view has been taken by the Kerala High Court which cannot be said to have laid down the law correctly. [42G H; 43A C]

The petitioner was detained under an order dated March 2, 1971 passed by the District Magistrate, 24 Pargana, West Bengal, under sub section (i) read with sub section (3) of section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970. The order stated 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 pre judicial to the security of the State or the maintenance of public order as provided in section 3(1). In the grounds of detention supplied to the petitioner three incidents of violence at railway stations in which the petitioner was alleged to have participated and used explosives were men tioned. In his representations against being detained the petitioner did not allege any mala fides against the administration but only denied that he took part in the violent activities. In 'support of the writ petition under article 32 of the Constitution challenging the order of its detention it was urged that while the impugned order mentioned his activities as being prejudicial to public order as well as security of the State, the instances given in the grounds of detention only mentioned activities pre judicial to public order. The detaining authority had thus taken into account extraneous and irrelevant matters in passing the order of detention. ' According to the appellant it is only matters referred to in sub c. (i) of c1. (a) of section 3(2) of the Act which will relate to the activities adversely affecting the security of the State, and none of these matters had been mentioned in the grounds of detention furnished to the petitioner. HELD : The contention of the petitioner that it is only sub cl. (1) of cl. (a) of section 3(2) which deals with matters adversely affecting the security of the State could not be accepted. In fact that very sub clause refers to the matters herein as affectingthe security of the State or the maintenance of public order. Thereforein this case the grounds of detention could not be held to be vague norcould the order of detention be held to be invalid on the ground thatthe petitioner must have been detained only to prevent him from actingin 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. Further the said grounds clearly bring the activities of the petitioner under section 3 of the . [523 H 524 E] Accordingly the detention of the petitioner must be held to be valid and the petition under article 32 must be dismissed.

The Punjab High Court has jurisdiction to issue a writ under article 226 of the Constitution to the Income tax Investigation Commission located in Delhi and investigating the case of the petitioner under 5 of the Taxation on Income (Investigation Commission) Act, 1947, although the petitioners were assessees within the U.P. State and their original assessments were made by the Income tax authorities of that State. Article 226 of the Constitution confers on all the High Courts new and very wide powers in the matter of issuing writs which they never possessed before. There are only two limitations placed upon the exercise of such powers by a High Court; one is that 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. The other is that the person or authority to whom 739 the High Court is empowered to issue writs "must be within those territories" and this ,implies that they must be amenable to its jurisdiction either by residence or location within those territories. The remedy provided in article 226 of the Constitution is a discretionary one and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. Ryots of Garabandho vs Zamindar of Parlakimedi (70 I.A. 129) and Election Commission v; Saka Venkata Subba Rao ; referred to.

The appellant, who was a returned candidate, filed a recrimination petition in the election petition filed by the first respondent and another. As a result of the recount to which all the parties had agreed, the High Court declared the first respondent as elected. Hence this appeal. Dismissing the appeal. ^ HELD: The case of Jabar Singh vs Genda Lal on which the appellant relies is of no assistance to him because the facts of the present case are clearly distinguishable from that case. In that case the returned candidate did not recriminate as provided under sec. 97 of the Representation of the People Act, 1951. In the instant case, the appellant had admittedly recriminated and in the recrimination petition one of the grounds taken related to the errors committed at the time of the counting of votes of the Ist respondent by the Returning Officer. The appellant had also agreed to the recounting of the votes secured by all the parties. [796 E G] Jabar Singh vs Genda Lal, ; , referred to and distinguished.

Allowing the petition the Court ^ HELD: Per Iyer J. (on behalf of Chinnappa Reddy J. and himself). The guarantee of human dignity forms part of an Constitutional culture and the positive provisions of Articles 14, 19 and 21 spring into action to disshackle any man since to manacle man is more than to mortify him; it is to dehumanize him and, therefore, to violate his very personhood, too often using the mask of 'dangerousness ' and security. Even a prisoner is a person not an animal, and an under trial prisoner is a fortiori so. Our nations founding document admits of no exception. Therefore, all measures authorised by the law must be taken by the Court to keep the stream of prison justice unsullied. [862 D F, 863 E F] Sunil Batra vs Delhi Administration and ors. ; ; followed . The Supreme Court is the functional sentinel on the qui vive where "habeas" justice is in jeopardy. If iron enters the soul of law and of the enforcing agents of law rather, if it is credibly alleged so the Supreme Court must fling aside forms of procedure and defend the complaining individual 's personal liberty under Articles 14 19 and 21 after due investigation. Access to human justice is the essence of Article 32. [864 A B] 3. Where personal freedom is at stake or torture is in store to read down the law is to write off the law and to rise to the remedial demand of the manacled man is to break human bondage. if within the reach of judicial process. [864 F G] 4. There cannot be a quasi caste system among prisoners in the egalitarian context of Article 14. In plain language, to say that the "better class under trial be not handcuffed without recording the reasons in the daily diary for considering the necessity of the use on such a prisoner while escort to and from court" means that ordinary Indian under trials shall be rentively handcuffed during transit between jail and court auld the better class prisoner 856 shall be so confined only if reasonably apprehended to be violent or rescued and is against the express provisions of Article 21. [863 D E, 865 G H] Maneka Gandhi vs Union of India [1978] 2 SCR 621 @ 647; applied. Vishwanath vs State Crl. Main No. 430 of 1978 decided on 6 4 79 (Delhi High Court), overruled. Though circumscribed by the constraints of lawful detention, the indwelling essence and inalienable attributes of man qua man are entitled to the great rights guaranteed by the Constitution. That is why in India, as in the similar jurisdiction in America, the broader horizons of habeas corpus spread out, beyond the orbit of release from illegal custody, into every trauma and torture on persons in legal custody, if the cruelty is contrary to law, degrades human dignity or defiles his personhood to a degree that violates Articles 21, 14 and 19 enlivened by the Preamble. [868 A B, 867 G H] 6. The collection of handcuff law, namely, Prisoners (Attendance in Courts) Act, 1955; Punjab Police Rules, 1934, (Vol. III) Rules 26: 22(i) (a) to (f); 26.21A, 27.12, Standing order 44, Instruction on handcuffs of November, 1977, and orders of April 1979, must meet the demands of Articles 14, 19 and 21. Irons forced on under trials in transit must conform to the humane imperatives of the triple Articles. Official cruelty, sans constitutionality degenerates into criminality. Rules, standing orders, Instructions and Circulars must bow before Part III of the Constitution. [872 B D] The Preamble sets the human tone and temper of the Founding Document and highlights justice, Equality and the dignity of the individual. Article 14 interdicts arbitrary treatment, discriminatory dealings and capricious cruelty. Article 19 prescribes restrictions on free movement unless in the interests of the general public. Article 21 is the sanctuary of human values, prescribes fair procedure and forbids barbarities, punitive or procedural. such is the apercu. [872 C E] Maneka Gandhi vs Union of India, [1978] 2 SCR 621 @ 647; Sunil Batra vs Delhi Administration, [1978] 4 S.C.C. 494 @ 545; reiterated. Handcuffing is prima facie inhuman and, therefore, unreasonable, is over harsh And at the first blush, arbitrary. Absent fair procedure and objective monitoring to inflict "irons" is to resort to zoological strategies repugnant to Article 21. Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonized. To prevent the escape of an under trial is in public interest, reasonable, just and cannot, by itself be castigated. But to bind a man hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our Constitutional culture. [872 F G] 8. Insurance against escape does not compulsorily required handcuffing. There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron In contraptions. Indeed, binding together either the hands or feet or both has not merely a preventive impact but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer. 857 The three components of "irons" forced on the human person are: to handcuff i.e., to hoop harshly to punish humiliatingly and to vulgarise the viewers also. Iron straps are insult and pain writ large, animalising victim and keepers. Since there are other ways of ensuring safety as a rule handcuffs or other fetters shall not be forced on the person of an under trial prisoner ordinarily. As necessarily implicit in Articles 14 and 19, when there is no compulsive need to fetter a person 's limbs it is sadistic, capricious, despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14 on the face. The animal freedom of movement, which even a detained is entitled to under Article 19, cannot be cut down cruelly by application of handcuffs or other hoops. lt will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safe keeping. [872 G H, 873 A E] 9. Once the Supreme Court make it a constitutional mandate and law that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort, the distinction between classes of prisoners become constitutionally obsolete. Apart from the fact that economic an i social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, a rich criminal or under trial is in no way different from a poor or pariah convict or under trial in the matter of security risk. An affluent in custody may be as dangerous or desperate as an indigent, if not more. He may be more prone to be rescued than an ordinary person. Therefore, it is arbitrary and irrational to classify prisoners for purposes of handcuffs, into 'B ' class and ordinary class. No one shall be fettered in any form based on superior class differential as the law heats them equally. It is brutalising to handcuff a person in public and so is unreasonable to do so. Of course, the police escort will find it comfortable to fetter their charges and be at ease, but that is not a relevant consideration. [873 E H] 10. The only circumstance which validates incapacitation by irons an extreme measure is that otherwise there is no other reasonable way of preventing his escape, in the given circumstances. Securing the prisoner being a necessity of judicial trial, the State must take steps in this behalf. But even here, the policeman 's easy assumption or scary apprehension or subjective satisfaction of likely escape if fetters are not fitted on the prisoner is not enough. The heavy deprivation of personal liberty must be justifiable as reasonable restriction in the circumstances. Ignominy, inhumanity and affliction, implicit in chains and shackles are permissible, as not unreasonable, only if every other less cruel means is fraught with risks or beyond availability. So it is that to be consistent with articles 14 an(l 19 handcuffs must be the last refuge, not the routine regimen. If a few more guards will suffice, then no handcuffs. If a close watch by armed policemen will do, then no handcuffs. If alternative measures may be provided, then no iron bondage. This is the legal norm. [874 A C] Functional compulsions of security must reach that dismal degree that no alternative will work except manacles. Our Fundamental Rights are heavily loaded in favour or personal liberty even in prison, and so, the traditional approaches without reverence for the worth of the human person are obsolete, although they die hard. Discipline can be exaggerated by prison 858 keepers; dangerousness can be physically worked up by escorts and sadistic disposition, where higher awareness of constitutional rights is absent, may overpower the finer values of dignity and humanity. [874 D E] Therefore, there must first be well grounded basis for drawing a strong inference that the prisoner is likely to jump jail or break out of custody or play the vanishing trick. The belief in this behalf must be based on antecedents which must be recorded and proneness to violence must be authentic Vague surmises or general averments that the under trial is a crook or desperado, rowdy or maniac, cannot suffice. In short, save in rare cases of concrete proof readily available of the dangerousness of the prisoner in transit the onus of proof of which is on him who puts the person under irons the police escort will be committing personal assault or mayhem if he handcuffs or fetters his charge. It is disgusting to see the mechanical way in which callous policemen, cavalier fashion, handcuff prisoner in their charge, indifferently keeping them company assured by the thought that the detainee is under 'iron ' restraint. [874 F H] 11. Even orders of superiors are no valid justification as constitutional rights cannot be kept in suspense by superior orders, unless there is material, sufficiently stringent, to satisfy a reasonable mind that dangerous and desperate is the prisoner who is being transported and further that by adding to the escort party or other strategy he cannot be kept under control. It is hard to imagine such situations. It is unconscionable, indeed outrageous, to make the strange classification between better class prisoners and ordinary prisoners in the matter of handcuffing. This elitist concept has no basic except that on the assumption the ordinary Indian is a sub citizen and freedoms under Part III of the Constitution are the privilege of the upper sector of society. [875 A C] Merely because a person is charged with a grave offence he cannot be handcuffed. He may be very quiet, well behaved, docile or even timid. Merely because the offence is serious, the inference of escape proneness or desperate character does not follow. Many other conditions mentioned in the Police Manual are totally incongruous and must fall as unlawful. Tangible testimony, documentary or other, or desperate behaviour, geared to making good his escape, along will be a valid ground for handcuffing and fettering, and even this may be avoided by increasing the strength of the escorts or taking the prisoners in well protested vans. And increase in the number of escorts, arming them if necessary special training for escorts police, transport of prisoners in protected vehicles, are easily available alternatives. [875 C E] 12. Even in cases where, in extreme circumstances handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reasons for doing so. otherwise under article 21 the procedure will be unfair and bad in law. Nor will mere recording of the reasons do, as that can be a mechanical process mindlessly made. The escorting officer, whenever he handcuffs a prisoner produced in court, must show the reasons so recorded to the Presiding Judge and get his approval. Otherwise, there is no control over possible arbitrariness in applying handcuffs and fetters. The minions of the police establishment must make good their security recipes by getting judicial approval. And, once the court directs that handcuffs shall 859 be off, no escorting authority can overrule judicial direction. This is implicit in article 21 which insists upon fairness, reasonableness and justice in the very procedure which authorises stringent deprivation of life and liberty. [875 G H, 876 A] Maneka Gandhi vs Union of India [1978] 2 SCR 621, and Sunil Batra vs Delhi Administration ; ; applied. 13. Punjab Police Manual, in so far as it puts the ordinary Indian beneath the better class breed (paragraphs 26.21A and 26.22 of Chapter XXVI) is untenable and arbitrary and Indian humans shall not be dischotomised and the common run discriminated against regarding handcuffs. The provisions in para 26.22 that every under trial who is accused of a non bailable offence punishable with more than 3 years prison term shall be routinely handcuffed is violative of articles 14, 19 and 21. So also para 26.22 (b) and (c). The nature of the accusation is not the criterion. The clear and present danger of escape breaking out of the police control is the determinant. And for this there must be clear material not qlib assumption record of reasons and judicial oversight and summary hearing and direction by the Court where the victim is produced. Para 26, 22(1)(d), (e) and (f) also hover perilously near unconstitutionality unless read down Handcuffs are not summary punishment vicariously imposed at police level, at once obnoxious and irreversible. Armed escorts, worth the salt, can overpower any unarmed under trial and extraguards can make up exceptional needs. In very special situations, the application of irons cannot be ruled out. The prisoner cannot be tortured because others will demonstrate or attempt his rescue. The plain law of under trial custody is thus contrary to unedifying escort practice. [876 C G] 14. The impossibility of easy recapture supplied the temptation to jump custody, not the nature of the offence or sentence. Likewise, the habitual or violent 'escape propensities ' proved by past conduct or present attempts are a surer guide to the prospects of ruling away on the sly or by use of force than the offence with which the person is charged or the sentence. Many a murderer, assuming him to be one, is otherwise a normal, well behaved, even docile, person and it rarely registers in his mind to run away or force his escape. It is an indifferent escort or incompetent guard, not the Section with which the accused is charged, that must give the clue to the few escapes that occur. To abscond is a difficult adventure. "Human rights" seriousness loses it valence where administrator 's convenience prevails over cultural values. There is no genetic criminal tribe as such among humans. A disarmed arrestee has no hope of escape from the law if recapture is a certainty. He heaves a sigh of relief if taken into custody as against the desperate evasions of the chasing and the haunting fear that he may be caught any time It is superstitious to practise the barbarous bigotry of handcuffs as a routine regimen an imperial heritage well preserved. The problem is to get rid of mind cuffs which make us callous to hand cuffing prisoner who may be a patient even in the hospital bed and tie him up with ropes to the legs of the cot. [877 A D, 878 A C] 15. The rule regarding a prisoner in transit between prison house and court house is freedom from handcuffs and the exception, under conditions of judicial supervision will be restraints with irons to be justified before or after. The judicial officers, before whom the prisoner is Produced shall 860 interrogate the prisoner, as a rule, whether he has been subjected to handcuffs or other 'irons ' treatment and, if he has been, the official concerned shall he asked to explain the action forthwith. [879 G H, 880 A B] Per Pathak J. (Concurring) 1. It is an axiom of criminal law that a person alleged to have committed an offence is liable to arrest. Sections 46 and 49 of the Code of Criminal Procedure define the parameters of the power envisaged in the Code in the matter of arrest. And section 46, in particular foreshadows the central principle controlling the power to impose restraint on the person of a prisoner while in continued custody. Restraint may be imposed where it is reasonably apprehended that the prisoner will attempt to escape, and it should not be more than is necessary to prevent him from escaping. Viewed in the light of the law laid down by this Court in Sunil Batra vs Delhi Administration and ors. ; , ; that a person in custody is not wholly denuded of his fundamental rights, the limitations flowing from that principle acquire a profound significance. [880 C F] The power to restrain, and the degree of restraint to be employed, are not for arbitrary exercise. An arbitrary exercise of that power infringes the fundamental rights of the person in custody. And a malicious use of that power can bring section 220 of the Indian Penal Code into play. Too often is it forgotten that if a police officer is vested with the power to restrain a person by handcuffing hum or otherwise there is a simultaneous restraint by the law on the police officer as to the exercise of that power. [880 F G] 2. Whether a person should be physically restrained and, if so, what should be the degree of restraint, is a matter which affects the person in custody so long as he remains in custody. Consistent with the fundamental rights of such person the restraint can be imposed, if at all, to a degree no greater than is necessary for preventing his escape. To prevent his escape is the object of imposing the restraint and that object at once defines that power. [880 H, 881 A] 3. Section 9(2)(e) of the Prisoners (Attendance in Court) Act, 1955 empowers the State Government to make rules providing for the escort of persons confined in a prison to and from Courts in which their attendance is required and for their custody during the period of such attendance. The Punjab Police Rules, 1934 contain Rule 26.22 which classifies those cases in which hand cuffs may be applied. The classification has been attempted somewhat broadly. But the classification attempted by some of the clauses of Rule 26.22, particularly (a) to (c) which presume that in every instance covered by any of these clauses the accused will attempt to escape cannot be sustained. [881 C E] The rule should be that the authority responsible for the prisoners custody should consider the case of each prisoner individually and decide whether the prisoner is a person who having regard to his circumstances, general conduct, behaviour and character will attempt to escape or disturb the peace by becoming violent. That is the basic criterion, and all provisions relating to the imposition of restraint must be guided by it. In the ultimate analysis it is that guiding principle which must determine in each individual case whether a restraint should be imposed and to what degree. [881 E G] 861 4. Rule 26.22 read with Rule 26.21 A of the Punjab Police Rules 1934 draw a distinction between "better class" under trial prisoners and "ordinary" under trial prisoners, as a basis for determining who should be handcuffed and who should not be. The social status of a person, his education and habit of life associated with a superior mode of living is intended to protect his dignity of person. But that dignity is a dignity which belongs to all, rich and poor, of high social status and low, literate and illiterate. It is the basic assumption that all individuals are entitled to enjoy that dignity that determines the rule that ordinarily no restraint should be imposed except in those cases where there is a reasonable fear of the prisoner attempting to escape or attempting violence. It is abhorrent to envisage a prisoner being handcuffed merely because it is assumed that he does not belong to "a better class", that he does not possess the basic dignity pertaining to every individual. Then there is need to guard against a misuse of the power from other motives. It is grossly objectionable that the power given by the law to impose a restraint, either by applying handcuffs or otherwise, should be seen as an opportunity for exposing the accused to public ridicule and humiliation. Nor is the power intended to be used vindictively or by way of punishment. Even Standing order 44 and the instructions on handcuffs of November 1977 operate some what in excess of the object to be observed by the imposition of handcuffs, having regard to the central principle that only he should be handcuffed who can be reasonably apprehended to attempt from escape or become violent. [881 G H. 882 A D] 5. Whether handcuffs or other restraint should be imposed on a prisoner is primarily a matter for the decision of the authority responsible for his custody. It is a judgment to be exercised with reference to each individual case. It is for that authority to exercise its discretion. The primary decision should not be that of any other The matter is one where the circumstances may change from one moment to another, and inevitably in some cases it may fall to the decision of the escorting authority midway to decide on imposing a restraint on the prisoner. The prior decision of an external authority can not be reasonably imposed on the exercise of that power. But there is room for imposing a supervisory regime over the exercise of that power. One sector of superviory jurisdiction could appropriately lie with the court trying the accused, and it would be desirable for the custodial authority to inform that court of the circumstances in which, and the justification for, imposing a restraint on the body of the accused. It should be for the court concerned to work out the modalities of the procedure requisite for the purpose of enforcing such control 882 E G] 6. In the present case, the question whether the petitioner should be handcuffed should be left to be dealt with by the Magistrate concerned before whom he is brought for trial in the cases instituted against him. [882 H, 883 A]

The petitioner, a convict under death sentence, through a letter to one of the Judges of this Court alleged that torture was practised upon another prisoner by a jail warder, to extract money from the victim through his visiting relations. The letter was converted into a habeas corpus proceeding. The Court issued notice to the State and the concerned officials. It also appointed amicus curiae and authorised them to visit the prison, meet the prisoner, see relevant documents and interview necessary witnesses so as to enable them to inform them selves about the surrounding circumstances and the scenario of events. The amicus curiae after visiting the jail and examining witnesses reported that the prisoner sustained serious anal injury because a rod was driven into that aperture to inflict inhuman torture and that as the bleeding had not stopped, he was removed to the jail hospital and later to the Irvin Hospital. It was also reported that the prisoner 's explanation for the anal rupture was an unfulfilled demand of the warder for money, and that attempts were made by the departmental officers to hush up the crime by overawing the prisoner and the jail doctor and offering a story that the injury was either due to a fall of self inflication or due to piles. Allowing the writ petition. ^ HELD:(Per Krishna Iyer and Chinnappa Reddy, JJ.) 1. (a) Prem Chand the prisoner, has been tortured illegally and the Superintendent cannot absolve himself from responsibility even though he may not be directly a party. Lack of vigilance is limited guilt. The primary guilt cannot be fixed because a criminal case is pending or is in the offing. The State shall take action against the investigating police for collusive dilatoriness and deviousness.[599 F] 558 (b) The Superintendent is directed to ensure that no corporal punishment or personal violence on Prem Chand shall be inflicted. No irons shall be forced on the person in vindictive spirit. [599 H] (c) Lawyers nominated by the District Magistrate, Sessions Judge, High Court or the Supreme Court will be given all facilities for interviews, visits and confidential communication with prisoners subject to discipline and security considerations. The lawyers so designated shall be bound to make periodical visits and record and report to the concerned courts, results which have relevance to legal grievances. [600 A B] (d) Within the next three months, Grievance Deposit Boxes shall be maintained by or under the orders of the District Magistrate and the Sessions Judge which will be opened as frequently as is deemed fit and suitable action taken on complaints made. Access to such boxes shall be afforded to all prisoners. [600 C] (e) District Magistrates and Sessions Judges shall, personally or through surrogates, visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances, shall make expeditious enquiries there into and take suitable remedial action. In appropriate cases reports shall be made to the High Court for the latter to initiate, if found necessary, habeas action. [600 D] (f) No solitary or punitive cell, no hard labour or dietary change as painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of the Sessions Judge and where such intimation, an account of emergency is difficult such information shall be given within two days of the action. [601 B C] 2. In our era of human rights ' consciousness the habeas writ has functional plurality and the constitutional regard for human decency and dignity is tested by this capability. [563 E] 3. Protection of the prisoner within his rights is part of the office of Article 32. [564 C] 4. It behoves the court to insist that, in the eye of law, prisoners are persons not animals, and to punish the deviant 'guardians ' of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials 'dressed in a little, brief authority '. when Part III is invoked by a convict. When a prisoner is traumatized, the Constitution suffers a shock. [564 D E] 5. The courts in America have, through the decisional process, brought the rule of law into the prison system pushing back, pro tanto, the 'hands off ' doctrine. The content of our constitutional liberties being no less, the dynamics of habeas writs there developed help the judicial process here. The full potential of articles 21, 19 & 14 after Maneka Gandhi has been unfolded by this Court in Hoskot and Batra. Today, human rights jurisprudence in India has a constitutional status and sweep. [573 A, 574 D] 6. Rulings of this Court have highlighted the fact that the framers of the Constitution have freed the powers under article 32 from the rigid restraints of 559 the traditional English writs. Flexible directives, even affirmative action moulded to grant relief, may realistically be issued and fall within its fertile width. [575 F] Dwarkanath vs income Tax officer ; referred to. Where injustice, verging on inhumanity, emerges from hacking human rights guaranteed in Part III and the victim beseeches the Court to intervene and relieve, the Court will be a functional futility as a constitutional instrumentality if it does not go into action until the wrong is righted. The Court is not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope. The court can issue writs to meet the new challenges. [576 D] 8. Affirmed in unmistakables terms that the court has jurisdiction under article 32 and so too under article 226, a clear power and, therefore, a public duty to give relief to sentence in prison setting. [576 F] 9. In Sunil Batra vs Delhi Administration this Court rejected the 'hands off ' doctrine and ruled that fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration. Our Constitutional culture has now crystallised in favour of prison justice and judicial jurisdiction. [576 H 577 A] 10. Where the rights of a prisoner, either under the Constitution or under other law, are violated the writ power of the court can and should run to his rescue. There is a warrant for this vigil. The court process casts the convict into the prison system and the deprivation of his freedom is not a blind penitentiary affliction but a belighted institutionalisation geared to a social good. The court has a continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration. [577 E F] 11. Whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods 'right, just and fair '. [578 E] 12. A prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through 'writ ' aid. The Indian human has a constant companion the court armed with the Constitution. [578 H] Maneka Gandhi vs Union of India ; N. H. Hoskot vs Maharashtra, ; , referred to. 13. Implicit in the power to deprive the sentence of his personal liberty, the Court has to ensure that no more and no less than is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary, if an influential convict is able to buy advantages and liberties to avoid or water down the deprivation implied in the sentence the Prison Establishment will be called to order for such adulteration or dilution of court sentences by executive palliation, if unwarranted by law. [579 B C] 14. The court has power and responsibility to intervene and protect the prisoner against mayhem, crude or subtle, and may use habeas corpus for 560 enforcing in prison humanism and forbiddance of harsher restraints and heavier severities than the sentence carries. [579 E] 15. Law in the books and in the courts is of no help unless it reaches the prisoner in understandable language and available form. There is therefore need to get ready a Prisoners ' Handbook in the regional language and make them freely available to the inmates. To know the law is the first step to be free from fear of unlaw. [582 C] 16(i) The most important right of a prisoner is to integrity of his physical person and mental personality. No prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of court. [584 D, 583 C] (ii) Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and more dreadful sometimes, transfer to a distant prison where visits or society of friends or relatives may be snapped, allotment of degrading labour, assignment to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgement is an infraction of liberty or life in its wider sense and cannot be sustained unless article 21 is satisfied. There must be a corrective legal procedure, fair and reasonable and effective. Such infraction will be arbitrary under Article 14, if it is dependent on unguided discretion, unreasonable under article 19 if it is irremediable and unappealable and unfair under article 21 if it violates natural justice. Some prisoners, for their own safety, may desire segregation. In such cases, written consent and immediate report to higher authority are the least, if abuse is to be tabooed. [584 F H, 586 G] (iii) Visit to prisoners by family and friends are a solace in insulation: and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity. Subject, of course, to search and discipline and other security criteria, the right to society of fellow men, parents and other family members cannot be denied in the light of article 19 and its sweep. , [586 H] 17. Prison power, absent judicial watch tower, may tend towards torture. The judges are guardians of prisoners ' rights because they have a duty to secure the execution of the sentences without excesses and to sustain the personal liberties of prisoners without violence on or violation of the inmates ' personality. [588 D, 590 C] 18. In a democracy, a wrong to some one is a wrong to every one and an unpunished criminal makes society vicariously guilty. [596 D] 19. When offences are alleged to have taken place within the prison, there should be no tinge or trace of departmental collusion or league between the police and the prison staff. [605 A] [Directives for which no specific time limit fixed except the urgency of their implementation: 1(i) The State shall take early steps to prepare in Hindi, a Prisoner 's Handbook and circulate copies to bring legal awareness home to the inmates. Periodical jail bulletins stating how improvements and habilitative programmes are brought into the prison may create a fellowship which will ease tensions. 561 A prisoners ' wall paper, which will freely ventilate grievances will also reduce stress. All these are implementary of section 61 of the . [601 D,E] (ii) The State shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations, especially those relating to work and wages, treatment with dignity, community contact and correctional strategies. [601 F] (iii) The needs rehabilitation and the Prison Manual total over haul. A correctional cum orientation course is necessitous for the prison staff inculcating the constitutional values, therapeutic approaches and tension free management. [601 H] (iv) The prisoners ' rights shall be protected by the court by its writ jurisdiction plus contempt power. To make this jurisdiction viable, free legal services to the prisoner programmes shall be promoted by professional organisations recognised by the court such as for e.g. Free Legal Aid (Supreme Court) Society. The District Bar shall, we recommend, keep 2 cell for prisoner relief. [602 A] (Per Pathak J. concurring) 1. The prisoner Prem Chand has been tortured while in custody in the Tihar Jail. [605 D] 2. The Superintendent of the jail to ensure that no punishment or personal violence is inflicted on Prem Chand by reason of the complaint made in regard to the torture. [605 F] 3. Pressing need for prison reform and provision for adequate facilities to prisoners, to enable them not only to be acquainted with their legal riots but also to record their complaints and grievances and to have confidential interviews periodically with lawyers nominated for the purpose by the District Magistrate or the court having jurisdiction. [605 G] 4. Imperative that District Magistrates and Sessions Judges should visit the prisons in their jurisdiction and afford effective opportunity to the prisoners for ventilating their grievances and where the matter lies within their powers, make expeditious enquiry and take suitable remedial action. [605 H] 5. Sessions Judge should be informed by the jail authorities of any punitive action taken against a prisoner within two days of such action. [606 A] 6. A statement by the Sessions Judge in regard to his visits, enquiries made and action then thereon shall be submitted periodically to the High Court to acquaint it with the conditions prevailing in the prisons within its jurisdiction. [606 B]

minal Appeal No. 168 of 1959. Appeal by special leave from the judgment and order dated September 10, 1958, of the Patna High Court in Criminal Appeal No. 580 of 1953. B. B. Tawakley and R. C. Prasad, for the appellant. A. K. Dutt and section P. Varma, for the respondent. April 18. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is against the order of the Patna High Court dismissing the appellant 's appeal against his conviction for offences under section 161, Indian Penal Code and a. 5(2) of the Prevention of Corruption Act, 1947 (Act 11 of 1947), hereinafter called the Act. The appellant was the Construction Engineer at Sindhri. R. B. Basu was a contractor living in Calcutta and carrying on the business of the company named and styled the Hindustan Engineering and Construction Company. The prosecution alleged, and the Courts below have found, that the appellant accepted the sum of Rs. 10,000 as illegal gratification from Basu at the Kelner 's Restaurant at Dhanbad Railway Station on July 18, 1951. The Courts disbelieved the appellant 's defence that he had taken the envelope containing this amount not knowing that it contained this amount, but knowing that it contained papers relating to Basu 's con. tracts. The contentions raised on behalf of the appellant are: (i)that the provisions regarding the presumption contained in section 4 of the Act are unconstitutional; (ii) that the case was tried by the Special Judge who had no jurisdiction to try it; (iii) that there had been no proper corroboration of the statement of Basu about the accused demanding the bribe and accepting the amount as illegal gratification. The Constitutionality of section 4 of the Act was sought to be questioned on the ground that it went against 52 the provisions of article 21 of the. Constitution which reads: "No person shall be deprived, of his life or personal liberty except;according to procedure established by law. " We do not consider this question to be a substantial question of law for the purpose of article 145(3), which lays down that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution shall be five, in view of it being held that the word 'law ' in article 21 refers to law made by the State ' and not to positive law. It has been held in A. K. Gopalan vs The State of Madras (1) that in article 21, the word law ' has been used in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice, and 'procedure established by law ' means procedure established by law made by the State, that is to say, by the Union Parliament or the Legislatures of the States, Section 4 has been enacted by Parliament and therefore it must be held that what it lays down is a procedure established by law. The appellant was tried by the Special Judge of Patna. The offence was committed at Dhanbad, in Manbhum District. The case was chalanned to the Magistrate at Dhanbad. On an application by the accused, the High Court transferred it to the Court of the Munsif Magistrate at Patna. Subsequent to this order of transfer, the Criminal Law Amendment Act, 1952 (Act XLVI of 1952) came into force on July 28, 1952. The case, thereafter, was forwarded to the Special Judge at Patna in view of section 10 of the Criminal Law Amendment Act. The contention for the appellant is that there was the Special Judge at Manbhum and flat he alone could have tried this case. Section 7 of the Criminal Law Amendment Act, reads: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law the offences specified in subjection (1) of section 6 shall be triable by special Judges only. (1) ; 53 (2) Every '.offence specified in sub section (1) of section 6 shall be tried by the special Judge for the area within which it was committed, or where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government. (3)When trying any case, a special Judge may also try any offence other than an offence specified in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial." Sub section (1) makes the offences under section 161, Indian Penal Code and section 5(2) of the Act triable by a; special Judge only. The appellant has been tried by a special Judge appointed under the Act. His grievance is not with respect to the competency of the Court which tried him, but is with respect to the trial Court having no territorial jurisdiction to try him, as sub section (2) of section 7 provides that such offences would be tried by the special Judge for the area in which the were committed. The offences were committed within the territorial jurisdiction of the special Judge at Manbhum and therefore could have been tried by him alone. It would therefore appear that the special Judge at Patna had no jurisdiction to try this case. Sub section (3) of section 8 of the Criminal Law Amendment Act reads: "Save as provided in sub section (1) or sub section (2), the provisions of the Code of Criminal Procedure, 1898 shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for the purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor. " It follows that the provisions of section 526 of the Criminal Procedure Code empowering the High Court to transfer any case from a criminal Court subordinate to it (1) ; 54 to any other Court competent to try it, apply to the case before any special Judge. If this case had been transferred to the Court of the Special Judge, Manbhum, on the coming into force of the Criminal Law Amendment Act, it would have been open to the High Court to transfer the case from that Court to the Court of the Special Judge, Patna. The case had been transferred from Dhanbad to Patna at the request of the appellant. The trial at Patna cannot be said to have prejudiced the appellant in any way. The mere omission of a formal forwarding of this case to the Special Judge at Manbhum and of a formal order of the High Court to transfer it to the Court of the Special Judge at Patna, have not, in our opinion, prejudiced the appellant in any way. When the case was taken up by the Special Judge, Patna, on October 23, 1952, the accused as well as the Public Prosecutor desired de novo trial. No objection to the jurisdiction of the Court to try the case was taken at that time. Such an objection appears to have been taken at the time of the arguments before the Special Judge and was repelled by him. Such an objection was not raised before the High Court when the appellant 's appeal was first heard in 1955 or in this Court when the State of Bihar appealed against the order of the High Court. All this indicates that the appellant did not feel prejudiced by the trial at Patna. In view of section 531 of the Code of Criminal Procedure, the order of the Special Judge, Patna, is not to be set aside on the ground of his having no territorial jurisdiction to try this case, when no failure. of justice has actually taken place. It is contended for the appellant that section 531 of the Code of Criminal Procedure is not applicable to this case in view of sub section (1) of section 7 and section 10 of the Criminal Law Amendment Act. We do not agree. The former provision simply lays down that such offences shall be triable by special Judges and this provision has not been offended against. Section 10 simply provides that the cases triable by a special Judge under section 7 and pending before a Magistrate immediately before the commencement of the Act shall be forwarded for trial to the 55 special Judge having jurisdiction over such cases. There is nothing in this section which leads to the non application of section 531 of the Criminal Procedure Code. We are therefore of opinion that the order of the special Judge convicting the appellant cannot be quashed merely on the ground that he had no territorial jurisdiction to try this case. The last contention for consideration is whether there had been proper corroboration of the statement of Basu about the accused demanding the bribe of Rs. 10,000 and accepting it on July 18, 1951, at the Kelner Refreshment Room, Dhanbad Railway Station. We may briefly indicate the salient facts deposed to by Basu in this connection. The appellant is said to have visited Calcutta in December 1950, to have gone to Basu 's house and to have asked him to pay a bribe of Rs. 10,000. There is no direct corroboration of this statement by the testimony of any other witness. Kanjilal, an employee of Basu, under in. structions of his master, met the appellant in May, 1951, enquired of him whether he would accept the amount he had demanded in December and had not been so far paid, and got the reply that the amount would be: acceptable. He conveyed this information to Basu. Nothing was done till over a month and then too, not to make the payment, but to inform the authorities. In June 1951, Basu informed Mr. K. N. Mookerjee, P. W. 3, the then Superintendent of Police, Special Police Establishment, about the accused 's demanding bribe and at his request delivered the letter, Exhibit 11/1, dated June 18, to him. He made mention in this letter about the demand made in December 1950, but made no reference to the appellant 's expression of readiness to accept the amount in the month of May. Mr. Mookerjee took steps for laying the trap and deputed Mr. section P. Mookerjee, P.W. 1. Kanjilal met the appellant on July 14 and arranged with him that he would go to Dhanbad railway station when Basu would also be reaching there and 'that the money would be paid there and that the date of that meeting would be communicated later. Basu was told of this arrangement at Calcutta. He, in his turn, informed the authorities. July 18 was fixed for the purpose. Kanjilal informed the appellant by telephone on July 16 that the meeting would be on the 18th and that Basu would be reaching Dhanbad by the Toofan Express at about 5 p.m. The trap arrangements were completed and the trap party reached Dhanbad by the Toofan Express on July 18. Kanjilal himself went to Sindhri on the morning of July 18 and confirmed the arrangement to the appellant. The appellant also reached Dhanbad railway station at about 5p.m. The members of the trap party took their seats at different tables in the corners of the Refreshment Room of Kellner 's Restaurant. Basu, with the appellant, reached there and occupied another table. Refreshments were taken. Thereafter, Basu talked over matters about the contract with the appellant, moved near him, took out the file from his satchel and then, after some conversation, took out the envelope containing the currency notes of the value of Rs. 10,000 and having its one long edge slit. This envelope was passed on to the appellant. Basu states that he made a statement at the time that there were Rs. 10,000, which he could, not pay to the appellant so far. The appellant took the envelope and put it in his trouser pocket. The trap party, after getting the signal that the bribe money had been paid, surrounded the appellant and got the envelope from him. , It was found to contain the very currency notes whose 'numbers had previously been noted by the Magistrate, Mr. Mahadevan. There is no verbal corroboration of Kanjilal 's statement about the message he conveyed to the appellant either in May or on the telephone or on the morning of the 18th of July. The Courts below have found corroboration of the statements of Basu from the circumstances that the demand of money in December 1950 was mentioned in June, 1951, to Mr. K. N. Mookerjee; that the trap must have been laid when Basu must have been 67 certain that the appellant would turn up at Dhanbad at the appointed time and that the appellant 's presence at Dhanbad railway station could not have been accidental but must have been the result of previous arrangement. No infirmity can be found in this reasoning. The appellant gave an explanation for his presence at the railway station that day. It has not been accepted by the Courts below. In fact, the learned counsel for the appellant did not press it for consideration at the second hearing of the appeal, on remand by this Court. No doubt, the trap arrangements must have been made when there was a practical certainty that the appellant would turn up at Dhanbad railway station. Basu is not expected to mention falsely in the month of June that the appellant made a demand of Rs. 10,000 in December 1950. Ordinarily, one is not expected to make a complaint of such a demand after such a long period of time. The interval of time seems to have been due possibly to a hope that matters may straighten out or that a lower sum might be acceptable as bribe to pass the pending bills of Basu. The omission of the trap witnesses to corroborate Basu 's statement at the time of the passing on of the envelope to the appellant, in forming the appellant of the envelope containing Rs. 10,000, is really surprising when the party consisted of four persons who had gone there for the purpose of being witnesses of the appellant 's accepting the bribe and who could therefore be expected to be alert to hear what passed on between the appellant and Basu. The question here is, what did the appellant expect the envelope to contain? It was no occasion for Basu to personally deliver any bills or papers concerning the contract business. Such papers could have been sent in the regular course of business to the appellant 's office. The appellant does not appear to have questioned Basu as to what the envelope contained, as he would have done, if he did not know for certain what it contained. The appellant 's statement that he understood the envelope to contain bills etc., is not consistent with his putting the envelope in his 8 58 pocket. The envolope is expected to be a fat one as it contained one hundred Rs. 100 currency notes. An envelope containing business papers is not expected to be put in the trouser pocket. One usually carries it in hand, or in one of the pockets of the coat or bush shirt one may be putting on. When it is held that the appellant must have gone to Dhanbad railway station by arrangement, it becomes a moot point, what the purpose of the arrangement was. Surely, it could not have been a mere delivering of certain bills and papers. As already mentioned, it could have been sent to Sindhri by post or through Kanjilal or any other messenger. The purpose of the meeting at Dhanbad railway station must have been different. The appellant has failed to mention any purpose which could be accepted as correct. It is true that the appellant was not specifically questioned, when examined under section 342, Criminal Procedure Code, with respect to his demanding Rs. 10,000 at Calcutta, Kanjilal 's visit to him in May and July and his telephonic call and the arrangement and about Basu 's statement at the time the envelope was passed on to him. But we are of opinion that this omission has not occasioned any failure of justice. The appellant fully knew what had been deposed to by witnesses and what had been the case against him. He denied the correctness of the main allegation that he received Rs. 10, 000 as bribe. We are therefore of opinion that the appellant knew when he took the envelope from Basu that he was getting Rs. 10,000 as bribe, which amount he had demanded, and that therefore the conviction of the appellant is correct. The appeal is therefore dismissed. Appeal dismissed.

The appellant accepted a sum of Rs. 10,000 from a con tractor. He was chalanned before a Magistrate at Dhanbad; but on an application by the appellant the High Court trans ferred the case to the Munsif Magistrate, Patna. Subsequently, the Criminal Law Amendment Act, 1952, came into force which made every offence under section 161 Indian Penal Code and section 5(2) Prevention of Corruption Act triable only by a Special judge for the area within which it was committed. The case of the appellant was forwarded to the Special judge at Patna who convicted him both under section 161 and section 5(2). The appellant contended: (1) that the Special judge at Patna had no jurisdiction to try the appellant as the offence was committed within the area of the Special judge at Dhanbad and (2) that the provisions regarding the presumption contained in section 4 of the Prevention of Corruption Act, 1947, offended article 21 of the Constitution. Held, that the order of conviction could not be quashed on the ground that the Special judge at Patna had no territorial jurisdiction to try the case as no failure of justice had been occasioned. Section 531 Code of Criminal Procedure was applicable to trials by Special judges. The High Court had also the power under section 526 of the Code to transfer a case from one Special judge to another, and the omission of a formal order transferring the case to the Special Judge at Patna had not prejudiced the appellant. Held, further that the procedure laid down by section 4 of the Prevention of Corruption Act, which was enacted by Parlia ment, laid down a procedure established by law. The question that section 4 offended article 21 of the Constitution was not a substantial question as to the interpretation of the Constitution within the meaning of article 145(3) and it was not necessary to refer it to a Bench of five judges. A. K. Gopalan vs The State of Madras, ; , followed.

The appellant was the manager of a Bidi counting and labelling factory. In 1951, the State of Madhya Pradesh fixed rates of minimum wages payable to workmen in accordance with the provisions of the . These rates were revised in the year 1956 and new rates were notified by the Government by a notification dated December 30, 1958 directing that these rates would come into force from January 1, 1959. The validity of this notification was successfully challenged by the appellant before the High Court. To meet the situation the Legislature enacted the Minimum Wages Act, 1961 giving effect to the impugned notification. On challenge ,of this Act by the appellant and other Bidi manufactories, the High Court allowed the applications and restrained the Government from giving effect to the impugned notification. There after, the Madhya Pradesh Ordinance No. 4 of 1962 was passed fixing rates of minimum wages retrospectively. The ordinance was later replaced by an Act, the Madhya Pradesh Minimum Wages Fixation Act, 1962. On challenge of the validity of this Act by the appellant, the High Court held the Act to be valid ,and disallowed the application. In this Court the validity of the Act was challenged on the ground (1) that in enacting the Act of 1962 the Legislature was not exercising its independent legislative power but only validating the notification dated December 30, 1958 which it was not competent to do, (2) that by giving retrospective effect to the: rates of wages fixed by this Act the State had put unreasonable restrictions on the appellant 's fundamental rights under article 19(l)(f) & (g) and (3) that by making the provisions of sections 20 and 22 of the Central Act of 1948 applicable to the wages now fixed the Act had contravened article 2b(1) of the Constitution. Held:(i) The contention that the Act was not independent legislation cannot be accepted. Section 2 of the Act merely says that the expressions used in this Act shall have the same meaning for the purpose of this Act as defined in the Minimum Wages Act of 1948. The definition of expressions used in an Act with reference to another Act is a well known device in legislative practice generally adopted for the sake of brevity. The definition would remain effective even after the other Act with reference to which the definition was given ceases to exist. This fact of defining expressions in an Act with reference to some other Act cannot therefore have the effect of making this Act dependent on such other Act. 821 It is clear from section 3 of the impugned Act that the legislature was fixing for itself the minimum rates of wages in certain ,scheduled employments. The fact that the rates mentioned in the Table appended to the Act happened to Le the same as the rates fixed elsewhere cannot reasonably justify a conclusion that the validation of the old rates was being affected. Independent legislation does not cease to be so, merely because its effect is the same as it would have been if a validating Act had been passed. (ii)The retrospective operation of legislation is a relevant circumstance in deciding its reasonableness. It is, however, not necessarily a decisive test. Section 3 of the Act does not make the new rates of wages payable on the 1st January 1959. The proviso to section 4 is a clear statement of the legislature 's intention that it is on the 21st June 1962 that the rates which had become enforceable under section 3 with effect from 1st January 1959 became payable. The appellant 's apprehension that he might be made liable for payment of compensation under section 20(3) or to prosecution under section 22 of the as a result of mere passing of the Act must therefore be held to be ground less. The contention therefore that sections 3 and 4 of the impugned Act impose unreasonable restrictions on the appellant 's fundamental rights must be rejected. Rai Ramkrishna vs State of Bihar, ; , applied. (iii)On a proper construction of sections 3 and 4 of the impugned Act, the attack on the validity of the section on the ground of a contravention of article 20(l) of the Constitution must also fail.

This appeal by special leave was directed against the order of the High Court asking the Income tax Appellate Tribunal under section 66(4) Of the Income tax Act to submit a supplementary ' statement of case on points, which were never raised by the parties nor decided by the Income tax Authorities or the Tribunal. The only question canvassed before them was whether certain cheques, which were received by the assessee at Bhavnagar having been cashed in British India, the monies in respect of them could be said to have been received in British India. The Tribunal held that the monies related back to the receipt of the cleques and were as such received at Bhavnagar. The question was whether the receipt of the cheques at Bhavnagar amounted to receipt of the sale proceeds at Bhavnagar. ' The High Court held that the mere receipt of the cheques by post at Bhavnagar was not conclusive in absence of a further finding as to whether the cheques were sent by post without any request, express or implied, having been made by the assessee and observed as follows " But we cannot shut out the necessary inquiry which even from our own point of view is necessary to be made in order that we should satisfactorily answer the question raised in the Reference. It must not be forgotten that under sec. 66(4) of the Income tax Act we have a right independently of the conduct of the parties to direct the Tribunal to state further facts so that we may properly exercise our advisory jurisdiction. " Held, that the High Court had misconceived its powers under section 66(4) of the Act and its decision must be set aside. Section 66(4) of the Indian Income tax Act, which must be read with sections 66(1) and 66(2) Of the Act, did not empower the High Court to raise a new question of law which did not arise out of the Tribunal 's order or direct the Tribunal to investigate new and further facts necessary to determine the new question which had not been referred to it under s 66(1) or section 66(2) of the Act and direct the Tribunal to submit supplementary statement of case. Such additions and alterations in the statement of case as section 66(4) of the Act empowered the High Court to direct, could 250 relate only to such facts as already formed part of the record but were not included by the Tribunal in the statement of the case. Craddock (H. M. Inspector of Taxes) vs Zevo Finance Co. Ltd., ; Commissioner of Income tax, West Bengal vs State Bank of India, ; Industrial Development and Investments Co., Ltd. vs Commissioner of Excess Profits Tax, Bombay, [1957] 31 I.T.R. 688; Vadilal Ichhachand vs Commissioner of Income tax, Bombay North, Kutch and Saurashtra, Ahmedabad, and Commissioner of Income tax vs Bhurangya Coal Co. [195S] , referred to. Commissioner of Income tax, Bihar & Orissa vs Visweshwar Singh, and Sir Sunder Singh Majithia vs Commissioner of Income tax, C. P. and U. P. [1942] 10 I.T.R. 457, considered.

These appeals by Special Leave and a petition for Special leave arose out of different judgments of the High Court. The main issue involved was whether the location of Revenue Mandal Headquarters in the State of Andhra Pradesh under section 3(5) of the Andhra Pradesh District (Formation) Act, 1974, was a purely governmental function, not amenable to the writ jurisdiction of the High Court. Writ Petitions were filed in the High Court by individuals and gram panchayats questioning the legality and propriety of the formation of certain Revenue Mandals and location of certain Mandal Headquarters notified in preliminary notification issued under sub section (5) of Section 3 of the Act. In some cases, the High Court declined to interfere with the location of Mandal Headquarters, holding that the government was the best judge of the situation, or on the ground that there was a breach of guidelines it directed the Government to reconsider the question of location of the Mandal Headquarters. In some cases, the High Court quashed the final notification for location of the Mandal Headquarters at a particular place, holding that there was a breach of guidelines based on the system of marking and also on the ground that there were no reasons disclosed for deviating from the preliminary notification for location of the Mandal Headquarters at another place. Allowing Civil Appeal Nos. 1980, 1982, 1985 and 1987 of 1986 and all other appeals and Special Leave Petitions directed against the judgments of the High Court, whereby the High Court had interfered with the location of the Mandal Headquarters, the Court, ^ HELD: It was difficult to sustain the interference by the High Court in some of cases with the location of the Mandal Headquarters and the quashing of the impugned notification on the ground that the Government had acted in breach of the guidelines in that one place or 695 the other was more centrally located or that location at the other place would promote general public convenience or that the Headquarters should be fixed at a particular place with a view to developing the areas surrounded by it or that merely because a particular person who was an influential Member of Legislative Assembly belonging to the party in opposition had the right of representation but failed to avail of it. The location of Headquarters by the Government by the issue of the final notification under sub s (5) of section 3 of the Act was on a consideration by the Cabinet Sub Committee of the proposals submitted by the Collectors concerned and the objections and suggestions received from the local authorities like Gram Panchayats and the general public, keeping in view the relevant factors. Even assuming that any breach of the guidelines for the location of the Mandal Headquarters was justiciable, the utmost that the High Court could have done was to quash the impugned notification in a particular case and direct the Government to reconsider the question. There was no warrant for the High Court to have gone further and direct the shifting of the Mandal Headquarters at a particular place. [711B E] The guidelines are merely in the nature of instructions issued by the State Government to the Collectors regulating the manner in which they should formulate their proposals for formation of a Revenue Mandal or for the location of its Headquarters keeping in view the broad guidelines laid down in Appendix I to the White Paper issued by the Government laying down the broad guidelines. The guidelines had no statutory force and they had also not been published in the Official Gazette. They were mere departmental instructions for the Collectors. The ultimate decision as to the formation of a Revenue Mandal or location of its Headquarters was with the Government. It was for that reason that the Government issued preliminary notification under sub s (5) of section 3 of the Act. Deviation from the guidelines in some of the aspects was usually for reasons of administrative convenience keeping in view the purpose and object of the Act i.e. to bring the administration nearer to the people. There was nothing on record to show that the decision of the Government in any of these cases was arbitrary or capricious or was one not reached in good faith or actuated with improper considerations or influenced by extraneous considerations. In a matter like this, conferment of discretion upon the Government in the matter of formation of a Revenue Mandal or location of its Headquarters in the nature of things necessarily leaves the Government with a choice in the use of the directions conferred upon it. [713A F] It was difficult to sustain the judgments of the High Court in the 696 cases where it had interfered with the location of Mandal Headquarters and quashed the impugned notifications on the ground that the Government had acted in breach of the guidelines in that one place or the other was more centrally located or that location at the other place would promote general public convenience or that the Headquarters should be fixed at a particular place with a view to developing the area surrounded by it. The location of Headquarters by the Government by the issue of the final notification under sub section (5) of Section 3 of the Act was on a consideration by the Cabinet Sub Committee of the proposals submitted by the Collectors concerned and the objections and suggestions received from the local authorities like the gram panchayats and the general public. Even assuming that the Government while accepting the recommendations of the Cabinet Sub Committee directed that the Mandal Headquarters should be at one place rather than at another place as recommended by the Collector concerned in a particular case, the High Court would not have issued a writ in the nature of mandamus to enforce the guidelines which were nothing more than administrative instructions not having any statutory force, which did not give rise to any legal right in favour of the writ petitioners. The petitions filed under Article 226 of the Constitutions before the High Court were dismissed. [723G H; 724A D] Gram Panchayat, Chinna Madur & Orr. vs The Government of Andhra Pradesh, [1986] 1 Andhra Weekly Reporter 362; C.J. Fernandez vs State of Mysore & Ors., ; ; Padfield vs Minister of Agriculture Fisheries & Food, ; ; Laker Airways Ltd. vs Department of Trade, at 705; Council of Civil Service Unions and Others vs Minister for the Civil Service, ; ; Secretary of State for Education and Science vs Tameside M.B.C.; , ; Breen vs Amalgamated Engineering Union, at 190; R.V. Criminal Injuries Compensation Board, explain, and Ridge vs Baldwin, ; , referred to.

Section 56 of the Bombay Police Act, 1951, is not unconstitutional and does not contravene the provisions of article 19 of the Constitution. Gurbachan Singh vs State of Bombay ( ; , followed. In order to attract the operation of the section the Officer concerned should be satisfied that the witnesses are not willing to come forward to give evidence in public, but it is not necessary to show that all the witnesses are unwilling to give evidence. The terms of the section do not justify any restricted meaning being given to the word "witnesses" and it is applicable to members of the police force and employees and officers of the Customs Department also. Gurbachan Singh vs State of Bombay ( ; , explained. Under the provisions of section 56 of the Bombay Police Act, 1951, an order of externment was passed against the petitioner by which he was directed to remove himself outside the limits of Greater Bombay and not to enter the said area for a period of two years without the prescribed permission; and subsequently he entered Greater Bombay in order to attend Court in a case pending against him in which a warrant of arrest had been issued. He was convicted for committing the breach of the externment order and he contended that his conviction was in itself an indication of the unreasonableness of the restriction. Held, that the restrictions cannot be said to be unreasonable, as the petitioner could have avoided the prosecution. and the conviction by obtaining the previous permission of the prescribed authority. Per JAGANNADHADAS J. If the matter were res integra should have felt difficulty in upholding the validity of section 56(b) of 534 the Bombay Police Act, 1951, in so far as it did not demarcate the application thereof to the more serious classes of offences falling within the specified Chapters. I.should also have felt difficulty in holding a provision to be reasonable which clothes the executive officers with an authority to extern a person for so long a period as two years.

In an appeal preferred by respondent No. 1 against orders reverting him from the post of Section Officer to a lower post and dismissing him from service, the State Gov ernment found that he had not been afforded a reasonable opportunity to defend himself at the inquiry, and set aside the order of dismissal directing the State Public Service Commission to reinstate him in the lower post and hold a fresh inquiry. The Commission having declined to comply with the order of the State Government, respondent No. 1 filed a writ petition, and the High Court directed the Commission to comply with the said order. In this petition for special leave to appeal, the Com mission contended (1) that since it was a Constitutional Authority being not subordinate to the State Government, the latter could not have heard the appeal filed against its order passed in a disciplinary proceeding; and (2) that in any event, the appeal should have been disposed of by the Governor himself and not by the Governor in accordance with the advice of the State Government. Dismissing the petition, HELD: The Commission may be a constitutional authority not subordinate to any other authority. But the orders passed by the Commission in disciplinary proceedings held against the members of its staff are subject to the appeal to the State Government under r. 69 of the Civil Service (Classification, Control and Appeal) Rules, 1930, read with Regulation 20 of the Uttar Pradesh Public Service Commission (Conditions of Service) Regulations, 1937 as amended in 1978. There is 834 no ground for thinking that the independence ,of the Commis sion would be affected by the State Government exercising the appellate power in disciplinary matters as provided by Regulation 20. [837H; 838A B] Hargovind Pant vs Dr. Raghukul Tilak & Ors., ; , referred to. Rule 69 of the Civil Service (Classification, Control and Appeal) Rules, 1930 is to the effect that the .State Government may, of its own motion or otherwise, call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by these rules, and inter alia, confirm, modify or reverse the order passed by such authority, or direct that a further enquiry be held in the case. Rule 69 A sets out the proce dure to be followed in filing a petition under rule 69. Rules 69 and 69 A are substantially applicable to the mem bers of the staff of the Commission by virtue of Regulation 28 of the Uttar Pradesh Public Service Staff Regulations, 1942, even though the Commission may not be an authority subordinate to the State Government because while applying r. 69 to the staff of the Commission the rule should be read with the necessary modification by substituting in the place of the words 'an authority subordinate to it ' the words 'the Uttar Pradesh Public Service Commission '. In any event by virtue of the amendment made to Regulation 20 of the Uttar Pradesh Public Service Commission (Conditions of Service) Regulations, 1937 in 1978 appeals against the orders of the Commission passed in respect of the gazetted ministerial officers other than the Under Secretary and the Assistant Secretary lie to the Governor. Respondent No.1 being a gazetted officer holding the post of a Section Officer was entitled to prefer an appeal under Regulation 20 to the Governor. [837C G] 2. It is no doubt true that Regulation 20 of the Uttar Pradesh Public Service Commission (Conditions of Service) Regulations, 1937 provides that appeals against the orders of the Commission shall be made to the Governor. But while exercising his powers under that Regulation the Governor has to act on the advice given by the State Government by virtue of article 163(1) of the Constitution. The function of hearing an appeal against an order passed by the Commission in a disciplinary proceeding held against any member of its staff is an executive function and not one of those functions which the Governor is required to exercise in its discretion under any of the provisions of the Constitution. The Gover nor has, therefore, to act on the advice of the State Gov ernment. [838C F] 835 Shamsher Sing vs State of Punjab, ; , referred to.

The election of the respondent, who was returned to the Lok Sabha in a bye election in 1981, was challenged by the appellant under section 80 of the Representation of the People Act, 1951, on a number of grounds, including the allegations of corrupt practice of undue influence, hiring and procuring of vehicles for carrying voters and obtaining the assistance of Government servants and incurring expenses at the elec tion in excess of the permissible limit. Upon a preliminary objection raised by the respondent the High Court struck off the pleadings as vague, general, unnecessary, frivolous and vexatious within the meaning of Order VI Rule 16 of the Code of Civil Procedure and rejected the petition under Order VII Rule 11 read with section 87 of the Act on the ground that it did not disclose any cause of action. In the appeal under section 116 A of the Act against the order of the High Court, it was contended for the appellant that the High Court had no jurisdiction to entertain prelim inary objections under Order VI Rule 16 or to reject the election petition under Order VII Rule 11 of the Code before the respondent had filed his written statement to the peti tion, which deprived him of the opportunity of amending the petition by supplying material facts and particulars, that allegations contained in various paragraphs of the petition constituted corrupt practices which disclosed cause of action within the meaning of section 100 of the Act and the High Court committed error in holding that the petition was detective, on the premise that it did not disclose any triable issue, and that the election petition disclosed primary facts regarding corrupt practice and 370 if there was absence of any particulars or details the High Court should have afforded opportunity to the appellant to amend the petition. The respondent was subsequently returned to the Lok Sabha in the general election held in 1984 and the validity of that election has been upheld in Azhar Hussain vs Rajiv Gandhi, ; and Bhagwati Prasad vs Rajiv Gandhi, ; The relief of setting aside the impugned election had thus become infructuous by lapse of time as the subsequent election could not be set aside on the grounds raised in the petition. But since section 98 read with section 99 of the Act mandates investigation of charges of corrupt practice, if any, raised against the returned candi date, and as proof thereof entails incurring of disqualifi cation from contesting subsequent election for a period of six years, the Court heard the appeal at length. On the questions: Whether the High Court had jurisdic tion to strike out pleadings under Order VI Rule 16 of the Code of Civil Procedure and to reject an election petition under Order VII Rule 11 of that Code at the preliminary stage, even though no written statement had been filed by the respondent, whether in the instant case in entertaining the preliminary objections and rejecting the election peti tion the High Court deprived the appellant of an opportunity to amend the petition and to make good the deficiencies by supplying necessary particulars and details of the corrupt practices alleged in the petition, and whether the various paragraphs of the said election petition disclosed any cause of action. Dismissing the appeal, HELD: 1.1 Right to contest election or to question the election by means of an election petition is neither common law nor fundamental right, instead it is a statutory right regulated by the statutory provisions of the Representation of the People Act, 1951, which is a complete and self con tained Code. Outside the statutory provisions, there is no right to dispute an election. The provisions of the Civil Procedure Code are applicable to the extent as permissible by section 87 of the Act. [387H 388B] 1.2. The scheme of the Act shows that an election can be questioned under the statute as provided by section 80 on the grounds as contained in section 100. The pleadings are regulated by section 83, which lays down a mandatory provision in providing that an election petition shall contain a COncise statement of material facts and set forth full particulars of 371 corrupt practices with exactitude. [388C] 1.3 Since allegations of corrupt practice are in the nature of criminal charges, it is necessary that each and every corrupt practice must be clearly and specifically pleaded and it should be complete in itself so that the returned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings the trial of the election petition cannot proceed for want of cause of action. [388DE] N.P. Ponnuswami vs Returning Officer, ; ; Jagan Nath vs Jaswant Singh, ; and Jyoti Basu vs Debi Ghosal, ; , referred to. 2.1 A combined reading of sections 81, 83, 86 and 87 of the Act makes it apparent that an election petition is liable to be dismissed in limine at the initial stage if it does not disclose any cause of action. Cause of action in questioning the validity of election must relate to the grounds speci fied in section 100 of the Act. If the allegations contained in the petition do not set out grounds of challenge as contem plated by section 100 and if the allegations do not conform to the requirement of sections 81 and 83 the pleadings are liable to be struck off under Order VI Rule 16 of the Code of Civil Procedure. If after striking out defective pleadings the Court finds that no cause of action remains to be tried it would be duty bound to reject the petition under Order VII Rule 11 of the Code. [382H, 386A C] Azhar Hussain vs Rajiv Gandhi, ; ; Bhag watii Prasad vs Rajiv Gandhi, ; ; Udhav Singh vs Madhay Rao Scindia, ; and Charan Lal Sahu to. 2.2 In the instant case, the appellant failed to plead complete details of corrupt practices which could constitute a cause of action as contemplated by section 100 of the Act. He also failed to give the material facts and other details of the alleged corrupt practices. The High Court, therefore, rightly exercised its power in rejecting the election peti tion under Order VII Rule 11 of the Code. [401G, 403G H] 3. I Order VI Rule 16 of the Civil Procedure Code per mits striking out of pleadings which are unnecessary, scan dalous, frivolous, or vexatious or which may tend to preju dice, embarrass or delay a fair trial at any stage of the proceedings. It does not admit of any exception that the respondent must file written statement before the 372 preliminary objections could be entertained. If, therefore, a preliminary objection is raised before commencement of the trial, the court is duty bound to consider the same. It need not wait for the filing of the written statement by the defendant and point out defects. Instead it can proceed to hear the preliminary objection and strike out the pleadings. [387BC, 386D, 383AB, CD] 3.2. The High Court, therefore, had jurisdiction in the instant case to strike out pleadings at the preliminary stage even though no written statement had been filed by the respondent. [382CD] K. Kamaraja Nadar vs Kunju Thevar & Ors., , referred to. Union of India vs Surjit Singh Atwal, ; , distinguished. Vidya Charan Shukla vs G.P. Tiwari & Ors., AIR 1963 MP 356 overruled. 4.1 The Court did not deprive the appellant of the opportunity to amend the petition and to make good the deficiencies by supplying the necessary particulars and details of the corrupt practices alleged in the petition. He was free to file amendment application, but at no stage did he express any desire to make any amendment application nor he made any application to that effect before the High Court. It was open to him to have made that application but he himself did not make any such application. [387DE] 4.2 The High Court was under no legal obligation to direct the appellant to amend pleadings or to suo moto grant time for the same. Moreover, the allegations of corrupt practice as required by Section 83 were not complete and did not furnish any cause of action. [387E] 5.1 The petition was drafted in a highly vague and general manner. Various paragraphs of the petition presented disjointed averments and it is difficult to make out as to what actually the petitioner intended to plead. [401H] 5.2 The allegations contained in paragraphs 1 to 7 contain narration of facts as to when the election took place and the petitioner 's desire to file his nomination paper and the obstruction raised by the authorities and the allegation that the police were shadowing the appellant do not make out any ground under section 100 of the Act. [388H] 5.3 The allegation in para 8 that food was given to the workers of the respondent at some places assuming to be true does not make out a 373 case of corrupt practice or any other ground of challenge under section 100 of the Act. A corrupt practice as contemplated by section 123(6) contemplates incurring or authorising expendi ture beyond the prescribed limit. The impugned allegation does not contain any averment that the respondent incurred or authorised expenditure beyond the prescribed limit. [389B D] 5.4 Paras 9 to 19 merely show that a number of vehicles were plying with party flags of the respondent in the con stituency on different dates which by itself do not consti tute any corrupt practice. The basic ingredients to make out a ground for challenging the election under section 100 of the Act in these paras were totally lacking. They, therefore, disclosed no cause of action. [389E G] 5.5 The allegations in paras 20 and 21 that the mother of the returned candidate, who was the Prime Minister, had toured the constituency alongwith him and in her speeches had appealed to the voters to vote for him do not constitute undue influence or any other corrupt practice. It is always open to a candidate or his supporters to appeal to the electors to vote for a particular candidate for the develop ment and progress of the area. This would be a legitimate appeal, [389H 390A] 5.6 The allegations in paras 22 to 26 of the petition relate to the relationship of the appellant with his agent. These do not make out any ground under section 100 of the Act. [390BC] 5.7 The statement in para 27 that the appellant as we11 as his election agent were being followed by police does not refer to any violation of law or rule or commission of any electoral offence by the returned candidate or his workers with his consent. [390C] 5.8 The allegation in para 28 that on the polling day a lady went to the polling booth alongwith a voter where he affixed stamp on ballot paper and returned with her does not amount to any corrupt practice with consent of the returned candidate unless it could be shown that it materially af fected the result of the election. [390D] 5.9 The allegation in para 29 that on the polling day drinking water and batashas were being distributed to the voters at the polling station does not show that it was being done with the consent of the respondent or that he spent money over it or that the said action influenced the voters or that it materially affected the result of the election. In the absence of such allegations it disclosed no cause of action. [390F] 374 5.10 The allegations in paras 31 to 35 that workers of the respondent helped voters to cast their votes in favour of the respondent, do not amount to any corrupt practice unless there was further allegation that it materially affected the result of the election. [390G] 5.11 The averments made in paras 37 and 38 contain narration of facts which have no bearing on any corrupt practice. [391A] 5.12 The allegations in paras 39 to 49 that neither the appellant nor his election agent had appointed any counting agents but a number of persons had acted as his counting agents in an unauthorised manner and that complaints made by him were not considered by the Returning Officer, even if assumed to be true do not make out any case of commission of corrupt practice. [391B] The High Court, was, therefore, justified in striking out all these paragraphs. 6.1 In order to constitute a corrupt practice as contem plated by sections 77 and 123(6) it is necessary to plead requi site facts showing authorisation or undertaking of reim bursement by the candidate or his election agent. A mere vague and general statement that the candidate and his workers with his consent spent money in election in excess of the permissible ceiling would not be sufficient to con stitute corrupt practice. [392G 393A] Rananjaya Singh vs Baijnath Singh, ; ; Smt. Indira Gandhi vs RaI Narain, and Kunwar Lal Gupta vs A.N Chawla, , referred to. 6.2 Any voluntary expense incurred by a political party, well wishers, sympathisers or association of persons does not fail within the mischief of section 123(6), instead only that expenditure which is incurred by the candidate himself or authorised by him is material for the purpose ors. [392B] Dr. P. Nalla Thampy Terah vs Union of India & Ors., [1985] Supp. SCC 189, referred to. 6.3 The allegations contained in various sub paras of para 50 merely allege that a number of vehicles were plying with the flags of the party to which the returned candidate belonged and food was served in connection with the election meetings, distribution of badges and 375 leaflets. There is no allegation that the returned candidate incurred or authorised incurring of expenditure for the aforesaid purposes. Unless the allegations are specific that the candidate or his election agent authorised the expenses before the money was actually spent and that the candidate or his election agent reimbursed or undertook to reimburse the same the necessary ingredient of corrupt practice would not be complete and it would provide no cause of action to plead corrupt practice. The High Court was justified in striking out the same. [393G 394A] 7.1 If some developmental activity was carried on in the constituency and if it was completed during the election period it could not amount to any gift or promise to the voters. [394G] 7.2 The allegation in para 53(1)(A) does not disclose any material fact or particular regarding the alleged cor rupt practice of making gift which may amount to bribery within the meaning of section 123(1)(A). It merely states that Amethi railway station was being constructed and during the election its work was speeded up which persuaded the voters to cast their votes in favour of the returned candidate. There is no allegation that ,he returned candidate or his workers with his consent made any gift, offer or promise to any elector to vote or refrain from voting at an election. [394EF] 8.1 A candidate, his workers and supporters have every right under the law to canvass for the success of a particu lar candidate saying that if elected he would work for the development of the constituency. Such a promise does not in any way interfere with the free exercise of electoral right of the electors. [395E] 8.2 The allegations in paras 53(1)(B) and (C) that the returned candidate, his mother and their workers with their consent made promise through newspapers, pamphlets and speeches that voters should cast their votes in favour of the respondent for the sake of progress and development of the constituency, merely amounts to a representation being made by the party leader and the returned candidate and his workers. Such a statement of promise is a legitimate one and it does not fail within the definition of bribery and undue influence under section 123(1)(A) or section 123(2). [395B, D] 8.3 Declaration of public policy or a promise of public action or promise to develop the constituency in general do not interfere with free exercise of electoral rights as the same do not constitute bribery or undue influence. [396B] 376 Shiv Kirpal Singh vs V.V. Giri, [1971] 2 SCR 197 and H.V. Kamath vs Ch. Nitiraj singh; , , referred to. 9.1 Hiring or procuring of a vehicle by a candidate or his agent or by any other person with his consent is the first essential ingredient of the corrupt practice under section 123(5), the second such ingredient is that the hiring or procuring of the vehicle must be for conveyance of the voters to and from the polling station, and the third that conveyance of electors is free from any charge. If any of the three ingredients is not pleaded to make out a case of corrupt practice under section 123(5) the charge must fail. [397E, 399C] 9.2 The allegations contained in para 30 and 53(1)(D) conspicuously do not contain any pleading regarding hiring and procuring of the vehicles by the returned candidate or any of his workers with his consent for conveyance of the voters to and from polling station free of cost. No particu lars of any kind have been ' specified. The paras, therefore, do not make out any charge of corrupt practice as contem plated by section 123(5) and the High Court was justified in striking out the same. [399G 400A] Joshbhai Chunnibhai Patel vs Anwar Beg A. Mirza, ; ; Ch. Razik Ram vs Ch. J.S. Chouhan & Ors., ; Balwant Singh vs Lakshmi Narain, ; ; Dadasaheb Dattatraya Pawar & Ors. vs Pandurang Raoji Jagtap & Ors., ; ; Dharmesh Prasad Verma vs Faiyazal Azam, ; ; Rajendra Singh Yadav vs Chandra Sen & Ors., AIR 1979 SC 882 and Balwan Singh vs Prakash Chand & Ors., ; , referred to. 10.1 In order to constitute a corrupt practice under section 123(7), it is essential to clothe the petition with a cause of action which would call for an answer from the returned candidate and it should, therefore, plead mode of assist ance, measure of assistance and all facts pertaining to the assistance. The pleading should further indicate the kind or form of assistance obtained and in what manner the assist ance was obtained or procured or attempted to be procured by the candidate. for promoting the prospect of his election. The petitioner must state with exactness the time of assist ance, the manner of assistance and the persons from whom assistance was obtained or procured by the candidate. [400DE] 10.2 The allegations in sub paras 1, 2 and 3 of para 53(1)(E) that though the appellant had not appointed any counting agent but still 377 certain persons acted as his counting agents and the return ing officer did not hold any inquiry into his complaint, in sub para 4 that there was fear psychosis and it looked as if the police and other government officials wanted to help the returned candidate, in sub para 5 of certain persons helping the voters to cast their votes on the polling day and that some persons cast votes 100 to 200 times and their signa tures were not obtained do not make out any charge of cor rupt practice within the provisions of section 123(7). [400FG] 11. The allegations in para 53(2) that the presiding officers did not perform their duties in accordance with law inasmuch as they failed in their duty to remove the posters and other propaganda material from the polling booth and that the election symbol of the returned candidate was displayed within 100 metres of the polling booth in viola tion of the rules do not make out any charge of corrupt practice. If at all, it could be a ground under section 100(1)(d)(iv) for setting aside election on the ground of its being materially affected but no such plea was raised. [401EF] 12. The allegation in para 52 that the returned candi date had polled cent per cent votes in his favour in certain villages of the constituency do not make out any corrupt practice or any ground of challenge under section 100 and it was rightly struck off by the High Court. [394B] 13. Order VI Rule 17 of the Code of Civil Procedure permits amendment of an election petition but the same is subject to the provisions of the Act. Section 81 prescribes a period of 45 days from the date of the election for pre senting election petition calling in question the election of the returned candidate. After the expiry of that period no election petition is maintainable and the High Court or this Court has no jurisdiction to extend the period of limitation. An order of amendment permitting a new ground to be raised beyond the time specified in section 81 would amount to contravention of these provisions and is beyond the ambit of section 87 of the Act. A new ground cannot, thus, be raised or inserted in an election petition by way of amendment after the expiry of the period of limitation. [402CD] In the instant case, the election petition was presented to the Registrar of the High Court on the last day of the limitation. The amendments claimed by him are not in the nature of supplying particulars instead those seek to raise new grounds of challenge. Various paras of the election petition which are sought to be amended do not disclose 378 any cause of action. Therefore, it is not permissible to allow amendment after expiry of the period of limitation. [402A, E] 14.1 Court should not undertake to decide an issue unless it is a living issue between the parties, for if an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time to engage itself in decid ing it. [380D] Sun Life Assurance Company of Canada vs Jervis, , referred to. 14.2 Election is the essence of democratic system and purity of elections must be maintained to ensure fair elec tion. Election petition is a necessary process to hold inquiry into corrupt practice to maintain the purity of election. But there should be some time limit for holding this inquiry. [381E] 14.3 Parliament should consider the desirability of amending the election law to prescribe time limit for in quiry into the allegations of corrupt practice or to devise means to ensure that valuable time of this Court is not consumed in election matters which by afflux of time are reduced to mere academic interest. [381D]

By an order dated 16th August 1969, the appellant was appointed by respondent 2 the Bihar School Examination Board as a Special Officer (Stores) for a period not exceeding six months in the pay scale of Rs. 300 20400 EB 20 500, with usual allowances. The services were, however, continued till 10th March, 1971, when it was intimated that the said post of Special Officer would be abolished with effect from 1st April 1971, and consequently his services were terminated. The appellant riled a suit and obtained an injunction against the abolition of the post and the termination of his services. In the suit, a compromise was arrived at between the Board and the appellant, whereby he was appointed as Section Officer in the General Cadre and his pay as Special Officer was to be protected. Pursuant to this compromise, the Board by order dated 20th March, 1972 appointed him on the vacant post of Section Officer, with a personal pay of Rs. 70 per month. Later, by an order dated 11.11.86, respondent No. 2 regularised the appointment from the date of his appointment as Special Officer viz. 16.8.69. However, respondent No. 5 promoted to one of the posts of Section officers on 27 8 70, contended that the seniority given to the appellant in the post of Section Officer w.e.f. 16 8 69, ie. from the date of his appointment as Special Officer was illegal. In the Seniority list of Section Officers prepared by respondent No. 2, the appellant was shown above respondent No. 5 and he was granted promotion to the post of Asstt. Secretary on 20th March, 1982, and to that of Deputy Secretary on 29.11.87. 12 Against the said list of seniority, respondent No. 5 filed a writ petition in the High Court, formally challenging the order of dt 11th Nov., 1986 in terms of which the inter se seniority list was prepared. The High Court held that the post of Special Officer occupied by the appellant was a temporary post, which was abolished, and therefore, he would have to rank below respondent No. section The appellant came to this Court. Allowing the Appeal, HELD: The approach of the High Court was not correct. The appellant was appointed in a higher post with a higher salary scale. He was in fact compulsorily transferred from that post to the post of Section Officer and after that transfer by the same order of 20th March, 1972, the post of Special Officer was abolished. The order is also capable of being interpreted as an order of amalgamation of the ex cadre post of a Special Officer with the cadre post of Section Officer. [15H G] The consequence of both the interpretations of the said order is the same, viz. that the appellant would get seniority from the date of his appointment as Special Officer. [15G] It is true that there is nothing on record except the order of 20th March, 1972, to show that in the temporary post of Special Officer which was created for the first time on 16th August, 1969, that the appointment of appellant was ever regularised and the appellant was appointed regularly to the same. However, on this aspect, we must go by the intention revealed in the resolutions and orders of the Board itself. The Board 's intention is clear. It treated the post as regular. The appellant was appointed to it in a substantive vacancy and in accordance with the condition governing it. There is accordingly nothing, which militates against the seniority given to the appellant. [16A D] The Direct Recruit Class II Engineering Officers ' Association and Ors. vs State of Maharashtra & Ors. , ; and State of Bihar& Ors. etc. vs Akhouri Sachindra Nath & Ors., [1991] Suppl. 1 SCC 334, referred to.

Appeal No. 3 of 1951. , Appeal from the Judgment and Order dated March 11, 1949, of the High Court of Judicature at Madras (Satyanarayana Rao and Viswanatha Sastri JJ.) in Original Side Appeal No. 3 of 1947, &rising out of the Judgment and Order dated November 15, 1946, of Clark J. and made in the exercise of the Ordinary Original Civil Jurisdiction of the High Court in Application No. 599 of 1946. M. C. Setalvad (Attorney General for India) (A. Balasubramanian, with him) for the appellant. N. Baja Gopala Iyengar for the respondent. December 9. The Judgment of Mehr Chand Mahajan, Das and Ghulam Hasan JJ. was delivered by Das J. Vivian Bose J. delivered a separate Judgment. DAS J. This appeal arises out of an application made by the Official Receiver representing Sha Mulchand & Company Ltd. (in liquidation) under section 38 of the Indian Companies Act for rectification of the register of the Jawahar Mills Ltd. Sha Mulchand & Company Ltd. (hereinafter referred to as " the Company") was incorporated in 354 1937 as a private limited company. At all material times it consisted of two members,. T. V. T. Govindaraju Chettiar and K. N. Sundara Ayyar. The Jawahar Mills Ltd. (hereinafter called " the Mills") was also incorporated in 1937 with an authorised capital of Rs. 10,00,000 divided into one lac shares of Rs. 10 each. The Company was the managing agent of the Mills from its inception and applied for and was allotted 5,000 ten rupee shares Nos. 1.5048 to 20047 on which Rs. 5 per share had been paid. The Company continued to act as the managing agent of the Mills till the 30th June, 1939, on which date it resigned the managing agency. Prior to the Company 's resignation the two members of the Company had entered into an agreement with one M. A. Palaniappa Chettiar, a partner of the incoming managing agency firm, up on certain terms which need not be referred to in greater detail. Within two months after the change of managing agents, the Mills made two calls, namely, one on the 22nd August, 1939, for Rs. 2 per share payable on the 1st October, 1939, and the other on the 1st October, 1939, for Rs. 3 payable, on the 1st December, 1939. The Company did not pay either of the calls. On the 23rd January, 1940, Govindaraju Chettiar was adjudged insolvent on the application of Sundara Ayyar. This insolvency of Govindaraju Chettiar was eventually annulled in 1944. During this period Govindaraju Chettiar, in law ', ceased to be a director of the Company, although it is alleged that he nevertheless continued to take part in the management of the Company. By a resolution of the Board of Directors of the Mills passed on the 12th August, 1940, the new managing agents were empowered to give notices to such persons as had not paid the allotment money and the call money within the date fixed and to intimate them that in default their shares would be ' forfeited. A notice was issued on the 16th September, 1940, and two copies thereof are said to have been sent to Sundara Ayyar and Govindaraju Chettiar. 355 No payment having been made, the 5,000 shares held by the Company were forfeited by a resolution of the Board of Directors of the Mills. The auditor of the Mills having pointed out that the purported forfeiture was irregular and illegal, this forfeiture was cancelled. By a resolution passed by circulation on the 26th February, 1941, the Board of Directors of the Mills resolved that a notice be sent to the Company informing it that it was in arrears with calls to the extent of Rs. 25,000, that the amount must be paid on or before the 31st March, 1941, and that, in default, its shares would be forfeited. A notice dated the 15th March, 1941, was accordingly addressed to the Company and sent by registered post with acknow ledgment due. It appears that the notice was actually posted on the 17th March, 1941, and was received by Govindaraju Chettiar on the 20th March, 1941. The Company did not pay the arrears of calls. On the 5th September, 1941, the Board of Directors of the Mills resolved that " the 5,000 shares Nos. 15048 20047 standing in the name of the Company have been forfeited. " On the 10th September, 1941, the Mills wrote a letter to the Company informing the latter that the Directors of the Mills bad at their meeting held on the 5th September, 1941, forfeited the 5,000 shares. There is no dispute that this letter which was sent by registered post was returned undelivered. On the 1st October, 1941, an entry was made in the share ledger of the Mills recording that the 5,000 shares of the Company had been forfeited. On the 16th November, 1941, these 5,000 shares were reallotted to 14 different persons and on the 17th November, 1941, a letter was sent to the Company intimating that the forfeited shares had been reallotted and calling upon the Company to send back to the Mills all the documents relating to the original allotment of the 5,000 shares to the Company. In the meantime on the 26th August, 1941, by an order made by the Registrar of Joint Stock Companies the Company was struck off the register of companies under section 247 356 of the Indian Companies Act. This order of 'the Registrar was published in the Official Gazette on the 9th September, 1941, i.e., four days after the shares were forfeited and one day before the notice intimating the fact of forfeiture was sent in a registered cover which was, however, returned undelivered. Under section 247 (5) of the Indian Companies Act the Company stood dissolved on and from the date of such publication. The Mills having come to know of the dissolution of the Company applied to the High Court (O.P. No. 10 of 1942) praying that the name of the Company be restored to the register of companies and that after such restoration was duly advertised the Company be wound up by the Court. A similar application was made on the 11th December, 1941, by the Income tax authorities (O.P. No. 11 of 1942). On the 23rd February, 1942, Sundara Ayyar filed an affidavit contending, amongst other things that the Directors of the Mills had no power to forfeit the shares. On the 2nd April, 1942, however, O.P. No. 10 of 1942 was compromised, and the Mills received Rs. 11,000 from Sundara Ayyar in full satisfaction of their claim against the Company. On the 25th June, 1942, O.P. No. 11 of 1942 was also compromised and Sundara Ayyar paid up the claim of the Income tax authorities. The two petitions for restoration of the Company were accordingly dropped. On the 27th June, 1942, Sundara Ayyar filed a suit against the Mills and others including Palaniappa Chettiar claiming a declaration that the forfeiture by the Mills of the 5,000 shares was illegal and inoperative and directing the Mills to pay to the plaintiff and the third defendant representing the estate of Govindaraju Chettiar the value of the forfeited shares with dividend or interest thereon and directing Palaniappa Chettiar to pay the plaintiff and the third defendant the sum of Rs. 25,000. This suit was dis missed on the 17th November, 1943, on the ground that Sundara Ayyar, who was only a member of the dissolved Company, had no locus standi and could 357 have no relief personally. Sundara Ayyar filed an appeal therefrom which was dismissed as against the Mills but the case was remanded to the trial Court for the trial of his claim as against the fourth defendant, Palaniappa Chettiar. During the pendency of Sundara Ayyar 's appeal he on the 12th August, 1944, filed O.P. No. 199 of 1944 for the restoration of the Company. On that application an order was made on the 16th February, 1945, that the name of the Company be restored to the register of companies, that the Company be deemed to have continued in existence as if its name had never been struck off, that such restoration be advertised and that the Company be wound up by the Court and the Official Receiver do forthwith take charge of the assets and liabilities of the Company. It was further ordered that the Official Receiver do recognise that as between the Mills and the Company, the Mills should be regarded as having been duly paid only Rs. 11,000 out of the total debt of Rs. 25,550 due ' to the Mills. By an order made on the 21st January, 1946, leave was given to the Official Receiver to take appropriate steps regarding the 5,000 shares purported to have been forfeited by the Mills. Accordingly on the 5th March, 1946, the Official Receiver, in the name of the Company, took out the present summons calling upon all parties concerned to show cause why the share register of the Mills should not be rectified by restoring the name of the Company to the said register in respect of 5,000 shares numbering 15048 20047 and why such other alternative or consequential relief should not be granted to the applicant as might be just and necessary in the circumstances of the case. The Mills contended, in opposition to that application, that the shares had been properly forfeited, that the Company was, on the principles of estoppel, acquiescence and laches, precluded from challenging the forfeiture, that the application was barred by limitation and that the shares having already been allotted to other persons, who had not been made 358 parties to the application, order for rectification of the register in respect of those shares could be made. The summons came up for hearing before Mr. Justice Clark. The learned Judge, by his judgment dated the 15th November, 1946, held that the notice dated the 15th March, 1941, which was posted on the 17th March, 1941, and delivered on the 20th March 1941, and on which the resolution of forfeiture passed on the 5th September, 1941, was founded, was not in conformity with the provisions of articles 29 and 30 of the articles of association of the Company which required 14 clear days ' notice. The learned judge further held that the plea of estoppel, acquiescence and laches was untenable, that article 49 of the Limitation Act did not apply either expressly or by way of analogy to the present application and that article 120, which prescribed a period of six years from the date when the right to sue accrued, would, by analogy, apply to the present proceedings and that so applied the present proceedings must be held to be within time. Having disposed of the controversy on the above points it remained to consider the form of the order which could properly be made on the application. It is quite clear that the specific shares having already been allotted to 14 different persons and those persons not being then before the Court, the Court could not then and there direct rectification of the register by restoring the name of the Company to the share register of the Mills in respect of those identical shares. There was nevertheless nothing to prevent the Court even at that stage to give notice of the application to the persons to whom the shares had been reallotted and/or those who were holding the shares at the time and after thus adding them as parties thereto to make the appropriate order of rectification and, if thought fit, to also award damages to the Company. There were, however, 16,000 shares of Rs. 10 each yet unissued. After discussing the matter with learned advocates on both sides to which, discussion a reference will be made hereafter the 359 learned Judge, in the belief that the advocates for the parties had agreed as to the form of the order, directed that the Mills do rectify their register by inserting the name of the applicant Company as owner of 5,000 shares out of the unissued shares of Rs. 10 each and that on such insertion the Company do on or before the 15th January, 1947, pay to the Mills Rs. 25,000, being the amount of calls in arrears. Pursuant to further directions given by the learned Judge on the 7th January, 1947, the Mills on the 10th January, 1947, received Rs. 25,000 and allotted 5,000 shares. Although the Mills thus acted upon the order they, nevertheless, on the 6th February, 1947, filed an appeal against the order. That appeal came up for hearing before a Bench consisting of Satyanarayana Rao and Viswanatha Sastri JJ. It was not disputed before the appeal Court that the forfeiture was invalid, but the contentions urged were that by reason of the irregularity the forfeiture was only voidable and not void and that as the forfeiture was only voidable it was open to the Company to waive or abandon its right to dispute the validity of the forfeiture and that in fact, by its conduct, it had done so, that the claim to rectify the register was barred by limitation and that in any event rectification was impossible because the shares were not available in specie, the same having been reallotted to other persons. The learned Judges by their judgment dated the 11th March 1949, held that the forfeiture was invalid, that the application was not barred by limitation for it was covered by article 120 of the Limitation Act. The learned Judges recognised that where a period of limitation was prescribed for a suit or a proceeding mere delay was no bar unless it was of such a character as would lead to an inference of abandonment of the right or unless it: was established that the person against whom the action or proceeding was instituted was actually prejudiced by reason of such delay. The learned Judges agreed with the 47 360 trial Court that no plea of acquiescence, waiver or estoppel had been established in the present case. The learned Judges, nevertheless, thought that the question of abandonment of the right and prejudice to the appellant by reason of the delay stood on a different footing. Then after referring to certain conduct on the part of Govindaraju Chettiar and Sundara Ayyar the learned Judges concluded that by reason of the long delay in reviving the Company and in taking proceedings under section 38 of the Indian Companies Act the Mills had been induced to put themselves in a situation in which it became impossible for them to restore the Company to the register in respect of those 5,000 shares and that in view of this conduct, if the applicants were Govindaraju Chettiar and Sundara Ayyar, it would have been a case in which relief would have been refused in the light of the principles which the learned Judges deduced from the judicial decisions referred to by them. Then referring to the decision in Smith, Stone & Knight vs Birmingham Corporation (1) and certain text books the learned Judges took the view that it was too late in the day to adhere to the strict formalism laid down in Salomon 's case (2) and that as the tendency of modern decisions was to lift the veil of corporate personality and disregard the corporate form, the conduct of its only two members had disentitled the company from claiming the relief of rectification. The learned Judges further held that there was no legal basis on which the form of the order could be supported. On reading the judgment of the trial Judge and after hearing the senior advocate appearing for the Mills the learned Judges felt unable to agree that the learned advocate had agreed to the substitution of, the 6,000 out of the unissued shares for the 5,000 forfeited shares. The resilt was that the appeal was allowed and the order of the trial Judge was set aside. The Company by its Official Receiver has now come up before this Court with leave granted by the High Court (1) (2) ; 361 under sections 109 and 110 of the Code of Civil Procedure. The appeal Court, it will be observed, reversed the decision of the trial Judge and decided the appeal against the Company on two grounds only, namely, (1) that the Company had by the conduct of its two members abandoned its right to challenge the forfeiture, and (2) that the form of the order could not be supported as one validly made under section 38 of the Indian Companies Act. The learned AttorneyGeneral, appearing in support of this appeal, has assailed the soundness of both these grounds. The learned Attorney General contends, not without considerable force, that having, in agreement with the trial Coury, held that no plea of acquiescence, waiver or estoppel had been established in this case, the appeal Court should not have allowed the Mills to raise the question of abandonment of right by the Company, inasmuch as no such plea of abandon ment had been raised either in the Mills ' affidavit in opposition to the Company 's application or in the Mills grounds of appeal before the High Court. Apart from this, the appeal Court permitted the Mills to make out a plea of abandonment of right by the Company ,as distinct from the pleas of waiver, acquiescence and estoppel and sought to derive support for this new plea from the well known cases of Prendergast vs Turton(1), Clark & Chapman vs Hart(2) and Jones vs North Vancouver Land and Improvement, Co.(3). A perusal of the relevant facts set out in the several reports and the respective judgments in the above cases will clearly indicate that apart from the fact that some of them related to collieries which were treated on a special footing, those cases were really cases relating to waiver or acquiescence or estoppel. Indeed in Clarke 's case (2) while Lord Chelms ford referred to the decision in Prendergast 's case(1) as a case of abandonment of right, Lord Wensleydale read it as an instance of acquiescence and estoppel. Unilateral act or conduct of a person, (1) ; (3) [1910] A.C. 317. (2) 6 H.L.C. 632; 10 E.R. I443. 362 that is to sky act or conduct of one person which is not relied upon by another person to his detriment, is nothing more than mere waiver, acquiescence or laches, while act or conduct of a person amounting to an abandonment of his right and inducing another person to change his position to his detriment certainly raises the bar of estoppel. Therefore, it is not intelligible how, having held that no plea of waiver, acquiescence or estoppel had been established in this case, the appeal Court could, nevertheless, proceed to give relief to the Mills on the plea of abandonment by the Company of its rights. If the facts on record were not sufficient to sustain the plea of waiver, acquiescence or estoppel, as hold by both the Courts, we are unable to see how a plea of abandonment of right which is an,aggravated, form of waiver, acquiescence or laches and akin to estoppel could be sustained on the self same facts. Further, whatever be the effect of mere waiver, acquiescence or laches on the part of a person on his claim to equitable remedy to enforce his rights under an executory contract, it is quite clear, on the authorities, that mere waiver, acquiescence or laches which does not amount to an abandon ment of his right or to an estoppel against him cannot disentitle that person from claiming relief in equity in respect of his executed and not merely executory interest. See per Lord Chelmsford in Clarke 's case (1) at page 657. Indeed, it has been held in The Garden Gully United Quartz Mining Company vs Hugh McLister(2) that mere laches does not disentitle the holder of shares to equitable relief against an invalid declaration of forfeiture. Sir BarnesPeacook in delivering the judgment of the Privy Council observed at pages 56 67 as follows: There is no evidence sufficient to induce their Lordships to hold that the conduct of the plaintiff did amount to an abandonment of his shares, or of his interest therein, or estop him from averring that he continued to be the proprietor of them. There certainly is no evidence to justify such a conclusion (1) ; 6 H.L.C. 632: (2) L. R.1 App. 39. 363 with regard to his conduct subsequent to the advertisement of the 30th of May, 1869. In this case, as 'In that of Prendergast vs Turton(1), the plaintiff 's interest was executed. In other words, he had a legal interest in his shares and did not require a declaration of trust or the assistance of a Court of Equity to create in him an interest in them. Mere laches would not, therefore, disentitle him to equitable relief:, Clarke and Chapman vs Hart(2). It was upon the ground of abandonment, and not upon that of mare laches, that Prendergast vs Turton(1) was decided. " Two things are thus clear, namely, (1) that abandonment of right is much more than mere waiver, acquiescence or laches and is something akin to estoppel if not estoppel itself, and (2) that mere waiver, acquiescence or laches which is short of abandonment of right or estoppel does not disentitle the holder of shares who has a vested interest in the shares from challenging the validity of the purported forfeiture of those shares. In view of the decision of the Courts below that no case of waiver, acquiescence, laches or estoppel has been established in this case it is impossible to hold that the principles deducible from the judicial decisions relied upon by the appeal Court have disentitled the Company to relief in this case. The matter does not rest even here. Assuming. , but not conceding, that the principle of piercing the veil of corporate personality referred to in Smith, Stone & Knight vs The Birmingham Corporation (3) can at all be applied to the facts of the present case so as to enable the Court to impute the acts or conduct of Govindaraju Chettiar and Sundara Ayyar to the Company, we have yet to inquire whether those acts or conduct do establish such abandonment of rights as would, according to the decisions, disentitle the plaintiff from questioning the validity of the purported declaration of forfeiture. There can be 'no question that the abandonment, if any, must be inferred from acts or conduct of the Company as such ' or, on the above principles, of its two members subsequent to (1) ; (3) (2) 6 H.L.C. 632: 10 E.R. I443. 364 the date of the forfeiture, for it is the right to challenge the forfeiture that is said to have been abandoned. 'In order to give rise to an estoppel against the Company, such acts or conduct amounting to abandonment must be anterior to the Mills ' changing its position to its detriment. The resolution for forfeiture was passed on the 6th September, 1941. The five thousand forfeited shares were allotted to 14 persons on the 16th November, 1941, and it is such ,allotment that made it impossible for the Mill& to give them back to the Company. In order, therefore, to sustain a plea of abandonment of right or estoppel, it must be shown that the Company or either of its two members had done some act and/or had been guilty of some conduct between the 6th September, 1941, and the 16th November, 1941. No such act or conduct during such period has been or can be pointed out. On being pressed advocate for the Mills refers us to the conduct of Sundara Ayyar in opposing O.P. No. 10 'of 1942 filed by the Mills and O.P. No. 11 of 1942 by the Income tax authorities for restoring the Company to the register of companies and it is submitted that such conduct indicates that Sundara Ayyar had accepted the validity of the forfeiture. This was long after the Mills had reallotted the forfeited shares. Further, a perusal of paragraph 9 of the affidavit in opposition filed by Sundara Ayyar in O.P. No. 10 of 1942 will clearly show that he not only did not accept the forfeiture as valid but actually repudiated such forfeiture as wholly beyond the competence of the Board of Directors of the Mills. The reason for opposing the restoration of the Company may well have been that Sundara Ayyar desired, at all cost, to avoid his eventual personal liability as a shareholder and director of the Company. In any case, Sundara Ayyar did make it clear that he challenged the validity of the purported forfeiture of shares by the Mills and in this respect this case falls clearly within the decision in Clarke 's case (1) relied upon by the appeal Court. The only other conduct of Sundara Ayyar relied on by learned advocate for the Mills in (1) ; 6 H.L.C. 632; 365 support of the appeal Court 's decision on this point is that Sundara Ayyar proceeded with his suit against Palaniappa Chettiar even after his suit as well as his appeal had been dismissed as against the Mills. In that suit Sundara. Ayyar sued the Mills as well as Govindaraju Chettiar and the Official Receiver of Salem representing the latter 's estate and Palaniappa Chettiar. In the plaint itself the validity of the forfeiture was challenged. The claim against Palani appa Chettiar was in the alternative and it was founded on the agreement of the 30th June, 1939. The suit was dismissed as against the Mills only on the technical ground that Sundara Ayyar had no locus standi to maintain the suit. The contention of the Company that the forfeiture was invalid and the claim for rectification of the share register of the Mills by restoring the name of the Company cannot possibly have been affected by this decision. Sundara Ayyar 's claim against Palaniappa Chettiar was based on the agreement of 1939 and it was formulated as an alternative personal claim. In view of the clear allegation in the plaint that the forfeiture was invalid and not binding on the Company, the continuation of the suit by Sundara Ayyar to enforce his personal claim against Palaniappa Chettiar cannot be regarded as an abandonment by Sundara Ayyar of the right of the Company. It must not be overlooked that the Company stood dissolved on that date and Sundara Ayyar had no authority to do anything on behalf of the Company. In our opinion there is no evidence of abandonment of the Company 's right to challenge the validity of the purported forfeiture. The second point on which the appeal Court decided the appeal against the Company was that the form of the order made by the trial Court could not be supported as one validly made under section 38 of the Indian Companies Act. It will be recalled that having disposed of all the points of controversy against the Mills and in favour of the Company the trial Judge had to consider the ' form of the order Which could properly be made in favour of the 366 Company. In the summons the Company had asked for rectification of the register by restoring the name of the Company to the register in respect of 5,000 shares numbering 15048 to 20047. It was agreed by learned advocates on both sides before the trial Court that it would, in the circumstances, be impossible to make an order for rectification with respect to those specific shares which, as already stated, had been reallotted to other persons who were not parties to the proceedings. The Mills had also reduced its capital by having the face value of the 84,000 shares which had been issued reduced by repaying to the shareholders Rs. 5 in respect of each of those shares. There were, however, 16,000 unissued shares of Rs. 10 each which were not affected by the reduction. While, therefore, it was clearly impossible for the Court to direct that the Company should be replaced on the register in respect of its original shares, the Court could, under section 38, give notice to the persons to whom the shares had been reallotted or those claiming under them and make them parties to the proceedings and then make an appropriate order for ' rectification and, if necessary, also direct the Mills to pay damages under that section. This being the situation learned advocate for the Mills had to decide upon his course of action. What happened in Court will appear from the following extract from the judgment of the trial Court: " It is agreed by both parties that the proper order will be for the applicant Company to be placed on the register in respect of 5,000 of the unissued rupees 10 shares and I order accordingly. In this case as the parties consent to the matter being disposed of, by allotting to the applicant unissued shares, there can, it seems to me, be no order for payment of the dividends. Counsel for the respondent Company leaves the solution of this difficulty to me. . . . . The suggestion of the applicant Company is that it is prepared to forego any claim to the accrued dividends if it is not required to pay interest on the outstanding call money. This seems to me to be a very 367 reasonable suggestion. . . I direct accordingly that on insertion of the name of the applicant Company as owner of 6,000of the unissued shares the applicant Company shall pay to the respondent company only Rs. 25,000 being the amount of calls in arrears. " The appeal Court, however, went behind this record of the proceedings that took place before the trial Court and heard the learned senior advocate as to what had happened in Court and after hearing the senior advocate for the Mills found itself unable to agree with the contention that the learned advocate for the Mills had agreed to the substitution of 5,000 unissued shares for the shares forfeited. No affidavit of the learned senior advocate was filed before the trial Court for the rectification of what is 'low alleged to have been wrongly recorded by the trial Judge, as suggested by the Privy Council in Madhu Sudan Chowdhri vs Musammat Chandrabati Chowdhrain (1) and other cases referred to in Timmalapalli Virabhadra Rao vs Sokalchand Chunilal & Others (2). While we do not consider it necessary or desirable to lay down any hard and fast rule, we certainly take the view that the course suggested by the Privy Council should ordinarily be taken. It. appears that at the time when the application was made for leave to appeal to the Federal Court an affidavit sworn by G. Vasantha Pai, the junior advocate for the Mills, was filed before the Court dealing with that application. Paragraph 5 of that affidavit runs as follows: "During the trial every question was argued on behalf of the respondent company and no point was given up. This will be clear from the fact that till we reached the penultimate paragraph of the judgment beginning 'It now remains to consider, etc. ' all the issues are dealt with by the learned Judge. The agreement was on the specific form of the order on the basis of his Lordship 's judgment and without prejudice to the respondent company 's rights. What (1) (2) 48 368 was agreed to was "Proper order" on the basis of his Lordship 's judgment which by then had been dictated. The respondent company no more consented to the order that the appellant consented to have his application dismissed when its counsel agreed that it was impossible to make an order in terms of the Judge 's summons. " The appeal Court understood the stand taken by the learned senior advocate as follows: " He seems to have &greed only as an alternative that if all his contentions were overruled and the learned Judge thought that notwithstanding the difficulty in the way of granting the relief for rectification the applicant company should be restored to the register, the only shares available being the 16,000 shares of Rs. 10 each unissued, the applicant company could be recognised as a shareholder in respect of 5,000 out of those shares. . . ." It is quite clear from the judgment of the trial Court, paragraph 5 of the junior advocate 's affidavit and the statement of the learned senior advocate as recorded by the appeal Court that the agreement was solely and simply as to the specific form of the order, without prejudice to the Mills ' right to challenge the correctness of the findings of the trial Court on the material issues. In other words, all that learned advocate for the Mills desired to guard himself against was that the agreement should not preclude the Mills from preferring an appeal against the decision of the learned Judge on the merits. The reservation was as to the right of appeal challenging the findings on the merits and the agreement was only as to the form of the order. This limited agreement certainly implied that the Mills agreed to be bound by the order only if the Mills failed in their appeal on the merits ' In short, the consent covered only the form of the order and nothing else so that if the Mills succeeded in their appeal the order would go, although advocate has agreed to its form but that if the Mills failed in their contention as to the correctness of the findings of the learned trial Court on the 369 different questions on merits it would no longer be open to them to challenge the order only on the ground of the form of the order. In our judgment the Mills cannot attack the form of the order to which their counsel consented. Learned advocate for the Mills has raised the question of limitation. He referred us to articles 48 and 49 of the Limitation Act but did not strongly press his objection founded on those articles. We agree with the trial Court and the Court of appeal that those two articles have no application to this case. A claim for the rectification of the register simpliciter does not necessarily involve a claim for the return of the share scrips and in this case there was, in fact, no prayer for the return of shares or the scrips and, therefore, these two articles can have no application. Learned advocate, however, strongly relies on article 181 of the Limitation Act. That article has, in a long series of decisions of most, if not all, of the High Courts, been held to govern only applications under the Code of Civil Procedure. It may be that there may be divergence of opinion even within the same High Court but the preponderating view undoubtedly is that the article applies only to applications under the Code. The following extract from the judgment of the Judicial Committee in Hansraj Gupta vs Official Liquidators, Dehra Dun Mussoorie Electric Tramway Company Limited (1) is apposite: " It is common ground that the only article in that schedule which could apply to such an application is article 181 : but a series of authorities commencing with Rai Manekbai vs Manekji Kavasji (2) have taken 'the view that article 181 only relates to applications under the Code of Civil Procedure, in which case no period of limitation has been prescribed for the application. But even if article 181 does apply to it, the period of limitation prescribed by that article is three years from the time when the right to apply accrued, which time would be not earlier than the (1) (1933) 60 I.A. 13 at p. 20. (2) 370 date of the winding up order, March 26, 1926. The application of the liquidators was made on March 26, 1928, well within the three years. The result is that from either point of view the application by the liquidators, if otherwise properly made under and within the provisions of section 186 of the Indian Companies Act, is not one which must be dismissed by reason of section 3 of the Indian Limitation Act. It is either an application made within time, or it is an application made for which no period of limitation is prescribed. The case may be a casus omissus. If it be so, then it is for others than their Lordships to remedy the defect. " Learned advocate for the Mills, however, points out that the reason for holding that article 181 was confined to applications under the Code was that the article should be construed ejusdem generis and that, as all the articles in the third division of the schedule to the Limitation Act related to applications under the Code, article 181, which Was the residuary article, must be limited to applications under the Code. That reasoning, it is pointed out, is no longer applicable because of the amendment of the Limitation Act by the introduction of the present articles 158 and 178. These articles are in the third division which governs applications but they do not relate to applications under the Code but to one under the Arbitration Act and, therefore, the old reasoning can no longer hold good. It is urged that it was precisely in view of this altered circumstance that in Asmatali Sharif vs Mujahar Ali Sardar(1) a Special Bench of the Calcutta High Court expressed the opinion that an application for pre emption by a non notified co sharer should be governed by article 181 of the Limitation Act. A perusal of that case, however, will show that the Special Bench did not finally decide that question in that case. In Hurdutrai Jagadish Prasad vs Official Assignee of Calcutta(2) a Division Bench of the Calcutta High Court consisting of Chief Justice Harries and Mr. Justice Mukherjea who had delivered (1) (2) 371 the judgment of the Special Bench clearly expressed the view that article 181 of, the Limitation Act applied only to applications under the Civil Procedure Code and did not apply to an application under section 56 of the Presidency Towns Insolvency Act Mukherjea J. who also delivered the judgment of the Division Bench explained the observations made by him in the Special Bench case by pointing out that the entire procedure for an application under section 26 (F) of the Bengal Tenancy Act was regulated by the Civil Procedure Code and, therefore, an application for pre emption was, as it were, an application made under the Civil Procedure Code. Subsequently in Sarvamangala Dasi vs Paritosh Kumar Das(1) G.N. Das J. who was also a member of the Special Bench in the first ' mentioned case expressed the opinion, while sitting singly, that article 181 was not confined to applications under the Code. His Lordship 's attention does not appear to have been drawn to the case of Hurdutrai Tagadish Prasad(2). It does not appear to us quite convincing, without further argument, that the mere amendment of articles 158 and 178 can ipso facto alter the meaning which, as a result of a long series of judicial decisions of the different High Courts in India, came to be attached to the language used in article 181. This long catena of decisions may well be said to have, as it were, added the words " under the Code " in the first column of that article. If those words had actually been used in that column then a subsequent amendment of articles 158 and 178 certainly would not have affected the meaning of that article. If, however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein. we are not of opinion, as at present advised, that the subsequent amendment of articles 158 and 178 must necessarily and automatically have the effect of altering the long acquired meaning of article 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available. We need (1) A.I.R. 1952 Cal. 689. (2) 372 not, however, on this occasion, pursue the matter further, for we are of the,opinion that even if article 181 does apply to the present application it may still be said to be within time. The period of limitation prescribed by that article is three years from the time when the right to apply accrues. " It is true that a further notice after the shares are forfeited, is not necessary to complete the forfeiture of the shares See Knight 's case(1)], but it is difficult to see how a person whose share is forfeited and whose name is struck out from the register can apply for rectification of the register until he comes to know of the forfeiture. The same terminus a quo is also prescribed in Article 120 of the Limitation Act. In O.R.M.O. M.SP. (Firm) vs Nagappa Chettiar(2) which was a suit to recover trust property from a person who had taken it, with notice of the trust, by a transaction which was a breach of trust, the Privy Council approved and applied the principles of the earlier Indian decisions referred to therein to the case before them and held that the time began to run under article 120 after the plaintiff came to know of the transaction which gave him the right to sue. On the same reasoning we are prepared to extend that principle to the present application under article 181. If article 181 applies then time began to run after the Company came to know of its right to sue. It is not alleged that the Company had any knowledge of the forfeiture between the 5th September, 1941, when the resolution of forfeiture was passed and the 9th September, 1941, when the Company became defunct. After the last mentioned date and up to the 16th February, 1945, the Company stood dissolved and no knowledge or notice can be imputed to the Company during this period. Therefore, the Company must be deemed to have come to know of its cause of action after it came to life again and the present application was certainly made well within three years after that event happened on the 16th February, 1945. If article 181 does not apply then the only article that can (1) (2) I.L.R. 373 apply by analogy is article 120 and the application is also within time. In either view this application cannot be thrown out as barred by limitation. The result, therefore, is that this appeal must succeed. We set aside the judgment and decree of the High Court in appeal and restore the order of the trial Court. The appellant will be entitled to the costs of the appeal in the High Court as well as in this Court. BOSE J. I agree with the conclusions of my learned brothers and also with their reasoning generally but lest it be inferred that I am assenting to a far wider proposition than is actually the case, I deem it advisable to clarify my position about abandonment and waiver. Though the usage of these words in cases of the present kind has the sanction of high authority, they are, in my opinion, inapt and mislead ing in this class of case. In order to appreciate this it will be necessary to hark back to first principles. In the first place, waiver and abandonment are in their primary context unilateral acts. Waiver is the intentional relinquishment of a right or privilege. Abandonment is the voluntary giving up of one 's rights and privileges or interest in property with the intention of never claiming them again. But except where statutory or other limitations intervene, unilateral acts never in themselves effect a change in legal status because it is fundamental that a man cannot by his unilateral action affect the rights and interests of another except on the basis of statutory or other authority. Rights and obligations are normally inter twined and a man cannot by abandonment per se of his rights and interests thereby rid himself of his own obligations or impose them on another. Thus, there can be no abandonment of a tenancy except on statutory grounds (as, for example, in the Central Provinces Tenancy Act, 1920) unless there is acceptance, express or implied, by the other side. It may, for example in a case of tenancy, be to the landlord 's interest to keep the tenancy alive and so also in the case 374 of shares of a company. It may be to the interests of the company and the general body of shareholders to refrain from forfeiture if, for example, the value of unpaid calls exceeds the market value of the shares. Such a position was envisaged in Garden Gully United Quartz Mining Co. vs Hugh McLister(1). So also with waiver. A long catena of illustrative cases will be found collected in B. B. Mitra 's Indian Limitation Act, Thirteenth Edition, pages 447 and 448. This fundamental concept brings about another repercussion. Unless other circumstances intervene, there is a locus paenitentiae in which a unilateral abandonment or waiver can be recalled. It would be otherwise if the unilateral act of abandonment in itself, and without the supervention of other matters, effected a change in legal status. In point of fact, it is otherwise when, as in the statutory example I have quoted, the law intervenes and determines the tenancy. It is, therefore, in my opinion, fundamental that abandonment and waiver do not in themselves unilaterally bring about a change in legal status. Something else must intervene, either a statutory mandate or an act of acceptance, express or implied, by another person, or, as Lord Chelmsford put it in Clarke & Chapman vs Hart(1), acts which are equivalent to an agreement or a licence, or an estoppel in cases where an estoppel can be raised. Next, there is, in my view, a fundamental difference between an executory interest and an executed one. In the former, it is necessary to resort to equitable reliefs to get enforced a right which is not at the date a vested right: cases of specific performance and declaration of a trust are examples, so also a prayer for relief from forfeiture. In cases of this kind, conduct which would disentitle a person to equitable relief is relevant. No hard and fast rule can or should be laid down as to what such conduct should consist of but among the varieties of conduct which Courts have considered sufficient in this class of case is conduct which amounts to laches (1) at 57 (2) (1858) 10 E.R. 1443 at 1452 and 1453. 375 or where there has been a standing by or acquiescence or waiver or abandonment of a right, particularly when this would prejudicially affect third parties. This sort of distinction is brought out by Lord Chelmsford in Clarke & Chapman vs Hart(1). The position is different when the interest is executed and the man has a vested interest in the right, that is to say, when he is the legal owner of the shares with the legal title to them residing in him. This legal title can only be destroyed in certain specified ways. It is in my view fundamental that the legal title to property, whether moveable or immoveable, cannot pass from one person to another except in legally recognised ways, and normally by the observance of certain recognised forms. Confining myself to the present case, one of the ways in which the title to shares can pass is by forfeiture; but in that case an exact procedure has to be followed. A second way is by transfer which imports agreement. There again there is a regular form of procedure which must be gone through. A third is by estoppel, though, when the position is analysed, it will be found that it is not the estoppel as such which brings about the change. The expressions abandonment, waiver and so forth, when used in a case like the present, are only synonyms for estoppel and despite hallowed usage to the contrary, I prefer to call a spade a spade and put the matter in its proper legal pigeon hole and call it by its proper legal name. These other terms are, in my view, loose and inaccurate and tend to confuse, when applied to cases of the present nature. A man who has a vested interest and in whom the legal title lies does not, and cannot, lose that title by mere laches, or mere standing by or even by saying that he has abandoned his right, unless there is something more, namely inducing another party by his words or conduct to believe the truth of that statement and to act upon it to his detriment, that is to say, unless there is an estoppel, pure and simple. It is only in such a case that the right can (1) ; at 1452 and 1453. 376 be lost by what is loosely called abandonment or waiver, but even then it is not the abandonment or waiver as such which deprives him of his title but the estoppel which prevents him from asserting that his interest in the shares has not been legally extinguished, that is to say, which prevents him from asserting that the legal forms which in law bring about the extinguishment of his interest and pass the title which resides in him to another, were not duly observed. Fazl Ali J. and I endeavoured to explain this in Dhiyan Singh vs Jugal Kishore (1). What happens is this. The person estopped is not allowed to deny the existence of facts, namely the actings of the parties and so forth which would in law bring about the change in legal status, namely the extinguishment of his own title and the transfer of it to another, for estoppel is no more than a rule of evidence which prevents a man from challenging the existence or non existence of a fact. Once the facts are ascertained, or by a fiction of law are deemed to exist, then it is those facts which bring about the alteration in legal status; it is not the estoppel as such nor is it the abandonment or waiver per se. I prefer therefore to adhere to what I conceive is the proper legal nomenclature. As I understand it, estoppel was the basis of the decision in Clarke & Chapman vs Hart (2). See Lord Wensleydale 's judgment at page 1458 and the Lord Chancellor 's at page 1453 ; so also. in Garden Gully United Quartz Mining Company vs Hugh McLister (3). That there is no sufficient ground for estoppel in this case is shown by the facts set out in the judgment of my learned brothers. I agree that the appeal must succeed. Appeal allowed. (1) [1952] S.C.R. 478 at 485. (3) 1 App.

A private limited company of which G and S were the only two members owned 5,000 shares in a Mill. The company did not pay the calls and the 5,000 shares held by them were forfeited on the 5th September, 1941, and re allotted to other persons on the 16th November. Notice of the forfeiture was sent to the company on the 10th September but this was returned undelivered. In the meantime the company was struck off the Register under section 247 of the Companies Act with effect from 9th September. On the application of S the company was restored to the Register and an Official Receiver was appointed on 16th February, 1945, to wind it up. On the 5th March, 1946, the Official Receiver took out a summons calling upon all parties to show cause why the share register of the Mills should not be rectified by restoring the name of the company to the register in respect of the 5,000 shares, as the forfeiture thereof was invalid. The trial Judge held that the forfeiture was invalid for want of sufficient notice, that the plea of estoppel, acquiescence and laches raised by the Mills was untenable, and that the application as governed by article 120 of the Limitation Act and was not time barred, and ordered that, as the advocates had agreed to such a course, 5,000 new shares may be issued to the company. The High Court on appeal found that the forfeiture was invalid, that the application was not time barred and that no acquiescence, waiver or estoppel had been established, but held that the company had, by the conduct of G and S and the long delay in reviving the company, abandoned its right to challenge the forfeiture and that there was also no legal basis on which the order passed by the trial Judge could be supported. On further appeal: Held, (i) if the facts on record were insufficient to sustain a plea of waiver, acquiescence or estoppel as held by both the lower Courts, a plea of abandonment of right which is an aggravated form of waiver, acquiescence or laches and akin to estoppel cannot be sustained on the same facts. 46 352 (ii) Whatever be the effect of mere waiver, acquiescence or laches on the part of a person on his claim to equitable remedy to enforce his rights under an executory contract, mere waiver, acquiescence or laches which does, not amount to an abandonment of his right or to an estoppel against him, cannot disentitle that person from claiming relief in equity in respect of his executed interests. Prendergast vs Turton ([18411 ; , Clarke and Chapman vs Hart ([1858] 6 H.L.C. 632), Jones vs North Vancouver Land and Improvement Co. ([1910] A.C. 317) explained. Garden Gully United Quartz Mining Company vs Hugh Mclister ([1875] 1 App. Cas. 39) relied on. (iii) There was no evidence in the case of any conduct on the part of S or G subsequent to the date of forfeiture and anterior to the Mills changing its position to its detriment, upon which a plea of abandonment of the right to challenge the forfeiture could be based. Smith, Stone and Knight vs Birmingham Corporation ([1939] 4 All E.R. 116) distinguished. (iv) On a proper construction of the statements made by the counsel, the form of the order to which the counsel had agreed could not be challenged by the Mills. (v) The application was not governed by articles 48 or 49 of the Limitation Act as a claim for rectification of the register simpliciter does not necessarily involve a claim for the return of the share scrips and there was no prayer in the ease for return of the scrips. (vi) Article 181 applies only to applications under the Civil Procedure Code, and even if the said article was applicable, time began to run under the article only from the date on which the company knew of the forfeiture of the shares; and as the company bad no knowledge until 9th September, 1941, when it became defunct, and the company came to life again only on 16th February, 1945, knowledge could not be imputed to the company before the latter date and the application was therefore not barred under article 181. (vii) If article 181 does not apply the only article that could apply was article 120 and even under that article the application was not barred. Hansraj Gupta vs Official Liquidators, Dehra Dun, Mussoorie Electric Tramway Co. ([1933] 60 I.A. 13), Hurdutrai Jagdish Prasad vs Official Assignee of Calcutta ([1948] 52 C.W.N. 343) approved. Asmatali Sharif vs Mujahar Ali Sardar ([1948] and Sarvamangal Dasi vs Paritosh Kumar Das (A.I.R. doubted. BOSE J. Waiver and abandonment are in their primary con text unilateral sets and except where statutory or other limitations intervene unilateral acts in themselves cannot effect a change in legal status. Consequently it is fundamental that 353 abandonment and waiver cannot unilaterally bring about a change in legal status in the absence of either a statutory mandate or an act of acceptance, express or implied by another person. There is also a fundamental difference between executed and executory interests in this connection. A man who has a vested interest and in whom the legal title lies does hot, and cannot, lose that title by mere laches, or mere standing by or even by saying that he has abandoned his right, unless there is something more, namely inducing another party by his words or conduct to believe the truth of that statement and to act upon it to his detriment, that is to say, unless there is an estoppel, pure and simple. It is only in such a case that the right can be lost by what is loosely called abandonment or waiver, but even then it is not the aban donment or waiver as such which deprives him of his title but the estoppel which prevents him from asserting that his interest in the shares has not been legally extinguished, that is to say, which prevents him from asserting that the legal forms which in law bring about the extinguishment of his interest and pass the title which resides in him to another, were not duly observed.

FACTS in these appeals the dispute relates to payment of compensation pursuant to acquisition of land of respondent-m/s. jaswant sugar mills ltd. and auction of part of the land of the company. the company preferred two writ petitions challenging the orders passed by the district magistrate, which were disposed of by the learned single judge of allahabad high court by a common judgment. by the said judgment,the high court directed the state government to pay the company the compensation on the basis of the compromise reached between the state government and the tenure holder company for acquisition of their land by meerut development authority. it is also directed that out of compensation paid by the meerut development authority (about rs.4.33 crores) an amount of rs.1.62 crores shall be deducted and the remaining amount shall be paid to the company. the high court by impugned judgment dated 27th april,2001 cancelled the auction sale and allowed the writ petition. in a review application preferred by auction purchaser,the high court by order dated 3rd september,2001 directed the respondents to refund the amount to the auction purchasers. the aforesaid judgment and orders are under challenge in c.a.nos.7122 of 2003,7123-7124 of 2003,7125 of 2003 and 7126-7129 of 2003. c.a.nos.6169-6171 of 2013 and c.a.nos.6172-6174 of 2013. during the pendency of the writ petition the state government issued a notification dated 14th august,1987 u/s.4 read with s.17(4) of the land acquisition act,1894 for the meerut development authority. it was followed by a notification dated 4th september,1987 issued u/s 6 of the acquisition act. the said notification included the land of m/s pootha farm,a constituent unit of the company. in the said case compensation amount of rs.4.33 crores was awarded by special land acquisition officer vide award dated 22nd february,1990 the company moved an application before the district collector,meerut stating therein that as on date there are no arrears/liability payable by the company,therefore,requested to remove the receiver. the district collector,meerut by order dated 18th december,1995,allowed the case no.30/1995 with observation that as on the date no recovery certificate was pending against the company. hence,the appointment of receiver was terminated with immediate effect. it was further ordered that a detailed list of the assets be prepared and signed by both the parties and the assets be transferred to the company. the high court by judgment and order dated 23rd february,2011 quashed the notice dated 22nd august,2005. with direction to the appellant to pay the compensation amount to the company. however,it was clarified that if the land,which have been acquired finally,does not fall within the ceiling limit of the company,then it will be open for the state to recover it after the finalisation of the ceiling proceedings,as per law. subsequently,impugned common judgment and order dated 1st. march,2011 was passed in writ petition no.31378/1996,etc.,with observation and directions as referred ARGUMENT the grievance of the appellant-state is that the high court while passing the impugned order has not noticed the liability incurred by the undertaking and the loan paid to the company. according to the appellant,the aforesaid issue has not been decided. on the other hand,learned counsel for the respondents made the following submissions: (i. no amount,whatsoever,is due and payable by the company to the state. till date,there has not been a single determination/adjudication by any court/authority of any dues against the company nor is there any claim pending before any authority or before any court,on date. furthermore,the state has not been able to produce any recovery certificate of any department showing any dues against the company. ii. the collector has no power to adjudicate the dues under the u.p.zamindari abolition and land revenue act and is merely a recovery agent to recover sums payable as arrears of land revenue,upon receipt of a valid recovery certificate. ISSUE the aforesaid orders have been challenged in c.a.no.7122 of 2003 (m/s. rudra estate pvt.ltd.&; anr.vs. jaswant sugar mills ltd.&; ors.),c.a.nos.7123-7124 of 2003,c.a.no.7125 of 2003 (shri munindra singh &; anr.vs. jaswant sugar mills ltd.&; ors. and c.a.nos.7126-7129 of 2003 (commissioner,meerut division,meerut vs. m/s jaswant sugar mills ltd. ANALYSIS it is not in dispute that the company was under heavy arrears as on 3rd january,1977. therefore,the district collector,meerut appointed the receiver. it is also not in dispute that labour and other dues were payable by the company apart from sale tax dues and the loan was given by the state government between 1977-1984 for payment of such dues. the order dated 20th february,1992 passed by the collector was also not under challenge,inspite of the same the high court declared the order dated 20th february,1992 as illegal. the parties only on the limited question as to why the amount which has been directed to be refunded to the auction purchasers-appellants herein should not bear reasonable interest. in a situation like in the present case,one cannot hold of any statute entitling the auction purchasers to claim interest,in case the auction got cancelled or set aside by the court of law. counsel for the parties also could not refer any of the clauses of auction prescribing interest on refund of amount in case of cancellation of auction or sale. the question arises as to whether in such a situation an auction purchaser can claim interest on equitable ground. in state of maharashtra and others vs. maimuma banu and others,(2003) 7 scc 448 2003 indlaw sc 625,the question arose as to whether interest was payable on rental compensation. in the present case, there was no mis-representation on the part of the auction purchasers; they deposited the total auction amount within the time stipulated. it has not been in dispute that the title of the land was also transferred in their favour. but for the reasons mentioned by the high court the sale has been cancelled. it has been ordered to refund amount in favour of the auction purchaser. appellant(s). there is no reason as to why on equitable grounds the appellants should not get interest on the said amount. taking into consideration the aforesaid factor while working out equities,it would,therefore,be appropriate to direct the state to pay interest at the rate of 6% on the amount to be refunded as per the high court's order with effect from 27th april,2001 and 3rd. september,2001,the day,the high court passed the impugned order.

The appellants one of whom was the owner and the other the manager of a colliery were convicted for contravening the provisions of the Mines Creche Rules, 1946, under which the owner of every mine employing women was required to construct creches for the use of the women employees and also to appoint a "Creche in charge" for the supervision of the creches. Their contentions mainly were (1) that the Mines Creche Rules, 1946 stood repealed as the Mines Act, 1923 itself under which those rules were framed were repealed by the Mines Act of 1952 and (2) that the said rules having been framed under section 30(bb) of the Mines Act, 1923, could not be deemed to be rules made under the corresponding section 58(d) of the 1952 Act the requirements of which were different from those of section 30(bb) of the 1923 Act. On behalf of the manager a further contention was raised that he was not liable for the Contravention of r. 7(1) under which he 37 had no duty to perform and no question of his omission to appoint a creche in charge arose. Held, per Sinha, C. J., section K. Das, Das Gupta and Ayyangar, JJ., that the regulations framed tinder section 30 of the Mines Act, 1923, survived the repeal of that Act. Criminal Appeals Nos. go to 106 of 1959, followed. The Mines Creche Rules, 1946, framed under section 30(bb) of the Mines Act of 1923 covered a part of the ground that was covered by the provisions of section 58(d) of the Mines Act of 1952, and to the extent the provisions of the two enactments overlap each other these rules would continue to be in force by virtue of section 24 of the and operate as rules under the 1952 Act. Contravention of r. 7 of the Mines Creche Rules, 1946, was in law contravention of a rule under section 58(d) of the 1952 Act within the meaning of section 73 of the Act. Under section 18(1) of the , the manager, the agent and the owner are responsible for observance of the Mines Creche Rules which form part of the conditions of employment of female labour engaged in "mining operations" and under subS. (2) of section 18 each of them shall be deemed to be guilty of the contravention of any rule by "any person whosoever", unless he proves that he took all reasonable means to prevent such contravention. The manager in the present case not having proved that he took all reasonable means to prevent the contravention of r. 7 by the owner even though the rule in terms laid no duty on him, must be deemed to be guilty of the contravention. State Government, M. P. vs Deodatta Diddi, A.I.R. (1956) Nag. 71, held inapplicable. G. D. Bhattar vs State, A.I.R. (1957) Cal. 483, the view making the manager liable to be approved. Per Mudholkar, J. In the mining industry a "mining operation", as contemplated under section 18 of the , is understood to mean an operation undertaken for the purpose of mining minerals and cannot be extended to mean "management of mines" such as employment of labour and providing amenities to employees etc. The manager of a mine cannot be made vicariously liable for the omission of the owner to carry out his own duty under r. 7(1) of the Mines Creche Rules. Sub section (2) of section 18 would also absolve the manager from vicarious liability if he could show "that he had taken all reasonable means by publishing and to the best of his power enforcing those provisions to prevent such contravention". But there is nothing in the Act or the rules which empowers the manager to enforce the performance by the owner of his duty under sub r. (1) of r. 7 of the Mines Creche Rules and the manager was therefore not liable for the breach of that rule.

The appellant and its workmen, represented by their unio.n called the Indoxco Labour Union, Jamshedpur, made a joint application to the Government referring certain disputes to the Industrial Tribunal. The application stated that the number of workmen employed in the undertaking affected were those employed in the company 's factory at Jamshedput, and that the same number were likely to be affected by the disputes. The Government referred the disputes to the Industrial Tribunal, and the notification also stated that the disputes were between the management of the appellant company 's factory at Jamshedpur and their workmen represented by Indoxco Labour Union. Two of the demands were (1) payment of overtime to office staff should be 1 1/2 times the ordinary rate .and (2) the union representatives should be allowed special leave to attend law courts for matters connected with the workers and the management, to attend the annual conventions of their federation, to attend to Executive Committee meetings of the union federation and the conventions of the central organisation i.e., INTUC. The union at a general meeting, held prior to the reference, had passed a resolution changing the name of the union to Indian Oxygen Workers Union and making the workmen of all the establishments of the Appellant company in Bihar eligible for its membership. By a letter the union informed the appellant company at Jamshedpur of this amendment. The Tribunal held that (i) the award in this case was to apply to all of the workmen and could not be restricted to the workman working at Jamshedpur; (ii) 11/2 times the ordinary wages 'for overtime work exceeding 39 hours but not exceeding 48 hours per week should be paid; and if the overtime exceeded 48 hours per week, the company would be liable to pay double the ordinary rate of wages; and (iii) the appellant company had been allowing without loss of pay the representatives of the workmen to attend proceedings before conciliation officers and Industrial Tribunals, and that this concession was sufficient; therefore the Tribunal rejected the demand for special Leave with pay to attend the law courts; but held the union 's representatives were to be given special leave to attend (a) meetings of its executive committee, (b) meetings of the federation of the union, (c) the annual convention of that federation when held at Jamshedpur and (d) the convention of the INTUC. In appeal to this Court, HELD: (i) The award was operative only in respect of the workmen of the appellant company 's factory at Jamshedpur and not the workmen of its other establishments. [561 C D] The agreement by which the parties agreed to refer the said disputes for adjudication was between the management of the appellant company 's factory at Jamshedpur. and the wo 'rkmen employed in that factory and represented by their said union, the Indoxco Labour Union. Under the notification of the Government also 'the disputes referred to the Tribunal 551 were those set out in the said agreement. Even assuming that the Indoxco Labour Union validly amended its constitution so as to extend its membership to the company 's other workmen in its other establishments, inasmuch as the disputes referred to. the Tribunal were only those set out in the said agreement, any award made by the Tribunal in respect of those disputes must necessarily be confined to the disputes refered to it, the parties to those disputes and the parties who had agreed to refer those disputes for adjudication. There is nothing to show in that notification that other workmen of the company had raised similar demands. or that there were any disputes existing or apprehended which were included in that reference. [555 D G] The Union did not produce any evidence to show that the amendments purported to have been carried out by the resolution were sent to the Registrar as provided in sections 6(g), 28(3), 29 and 30(3) of the Trade Union Act and regulation 9 of the Central Trade Union Regulation, nor did it produce any communication of the Registrar notifying the fact of his having registered the said amendments. The only evidence it produced was its letter to the appellant company which indicated that the Registrar notified to the union of his having registered the said amendments. The Tribunal 's conclusion, therefore, that the union 'section constitution, was duly amended or that the Indian Oxygen Workers Union represented the workmen of the company 's factory at Jamshedpur and that consequently it made no difference that the name of Indoxco Labour Union as representing the workmen concerned was mentioned in the said agreement and the said statement and not that of the Indian Oxygen Workers Union is erroneous and cannot be sustained. Any award, therefore, made by the Tribunal in these circumstances can operate only in respect of the workmen of the appellant company 's factory at Jamshedpur and the Tribunal 's extension of that award to workmen in the company 's other establishments was clearly without jurisdiction. [557 D G] The Associated Cement Companies Ltd. vs Their Workmen, ; a 'nd Ramnagar Cane and Sugar Co. Ltd. vs Jatin Chakravorty, , distinguished. (ii) Under the conditions of service of the co.mpany, the total hours of work per week were 39 hours. The Bihar Shops and Establishments Act fixes the maximum number of hours of work allowable thereunder, i.e. 48 hours a week, and provides for double the rate of ordinary wages for work done over and above 48 hours. But no reliance can be placed on the provisions of that Act for the company 's contention that it cannot be called upon to. pay for overtime work anything more than its ordinary rate of wages if the workmen do work beyond 39 hours but not exceeding 49 hours a week. Any workman asked 'to work beyond 39 hours would obviously be working overtime and the company in fairness would be expected to pay him compensation for such overtime work. If the company pays at the ordinary rate of wages for work done beyond 39 hours but not exceeding 48 hours work a week, it would be paying no extra compensation at all for the work done beyond the agreed hours of work. The company would thus be indirectly increasing the hours of work and consequently altering its condition of service. [558 C F] If after taking into consideration the fact of the comparatively higher scale of wages prevailing in the appellant company, the Tribunal fixed the rate for overtime work at 11/2 times the ordinary rate of wages, it is impossible to say that the Tribunal erred in doing so or acted unjustly. (iii) The demand for special leave must be disallowed. 552 The appellant company. has been allowing those,of its workmen who are the union 's representatives to attend without loss of pay proceedings before conciliation officers and industrial tribunals. In conceding the demand of the union for more leave the Tribunal does not appear to have considered the adverse effect on the company 's production if furthern absenteeism were to be allowed especially when the crying need of the country 's economy is more and more production. In awarding this demand the Tribunal also did not specify on how many ' occasions the executive committee meetings of the union and other meetings would be held when the company would be obliged to give special leave with pay to the union 's representatives. Similarly, there is no knowing how many delegates the union would send to attend the conventions of the federation and the INTUC. The Tribunal could not in the very nature of things specify or limit the number of such meetings for such an attempt would amount to interference in the administration of the union and its autonomy. Its order must of necessity, therefore, have to be indefinite with the result that the appellant company would not know before hand on how many occasions and to how many of its workmen it would be called upon to grant special leave. Further, in case there are more than one union in the company 's establishment, the representatives of all such unions would also have to be given such leave to attend the aforesaid meetings. In considering such a demand, the question as to why the meetings of the executive committee of the union cannot be 'held outside the hours of work should be considered. It was said that it may not be possible always to do so if an emergency arises. But emergencies are not of regular occurrence and if there be one, the representatives can certainly sacrifice one of their earned leave. Similarly the meetings of the federation and the annual conventions of the INTUC too can be artended by the union 's delegates by availing themselves of their earned leave. [559 D E; 560 C H] J. K. Cotton and Spinning and Weaving Mills vs Badri Malt, [19641 3 S.C.R. 724, referred to.

In the year 1943 the Divisional Superintendent, East Indian Railway placed certain purchase orders with the appellant for the supply of foodgrains for the employees of the East Indian Railway. The orders were not expressed to be made in the name of the Governor General and were not "executed on behalf of the Governor General as required by section 175 (3) of the Government of India Act, 1935. They were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant. Some deliveries of foodgrain s were made under these orders and were accepted and paid for by the Railway Administration. But the Railway Administration declined to accept further deliveries of foodgrains. The appellant sold the balance of foodgrains under the purchase orders and filed a suit to recover the difference between the price realised by sale and the contract price. The respondent resisted the suit inter alia on the ground that the contracts were not binding on it. Held, that the contracts were not binding on the respondent and it was not liable for damages for breach of the contracts. Under s 175 (3) of the Government of India Act, 1935, as it stood at the relevant time, the contracts had: (a) to be expressed to be made by the Governor General, (b) to be executed on behalf of the Governor General and (F) to be executed by officers duly appointed in that behalf and in such mariner as the Governor General directed or authorised. The 881 authority to a person to execute contracts may be conferred not only by rules expressly trained and by formal notifications issued in this behalf but may also be specially conferred. The evidence in the case showed that such authority was specially conferred upon the Divisional Superintendent. But the contracts were not expressed to be made by the Governor General and were not executed on his behalf The provisions of section 175(3) were mandatory. The object of enacting these provisions was that the State should not be saddled with liability for unauthorised contracts and hence it was provided that the contracts trust show on their face that they were made by the Governor General and executed on his behalf in the manner prescribed by the person authorised. State of Bihar vs M/s. Karam Chand Thapar and Bros., Ltd. ; , followed. Liverpool Borough Bank vs Turner, ; , Municipal Corporation of Bombay vs Secretary of State, I. L. R. , Kessoram Poddar and Co., vs Secretary of State for India, I. L. R. section C. Mitra and Co., vs Governor General of India in Council, I.L.R. , Secretary of State vs Yadavgir Dharamgir, I. L. R. , Secretary of State vs G.T. Sarin and Co., 1. L. R. , U. I '. Government vs Lal Nanhoo Mal Gupta, A. 1. R. (1960) All. 420, and Devi Prasad Sri Krishna Prasad Ltd. vs Secretary of State, I. L. R. (1941) All. 741, referred to. section K. Sen vs Provincial P. W. D., State of Bihar, A. 1. R. (1960) Pat., Chatturbhui Vithaldas Jasani vs Moreshwar Prashram, ; ,J. K. Gas Plant Mfg., Co. (Rampur) Ltd. vs King Emperor, , Moreshwar Pangarkar vs State of Bombay, ; , State of Bombay vs Purshottam Jog Naik, ; and State of U.P. vs Manbodhan Lal Srivastava, (1958) section C. R. 533, distinguished.

An assessment order was passed in respect of the turn over of the appellant firm for the year 1975 76 by the Sales Tax Officer on 7.2.1979. Thereafter, the Sales Tax Officer issued a notice under s.21 of the Uttar Pradesh Sales Tax Act, 1948, proposing to make a reassessment on the ground that the mandi cess and arhat (commission) had escaped assessment and directed the appellant to appear along with its account books on 18.1. The Sales Tax Officer passed the order under s.21 on the same date holding that the appellant was not liable to pay any more tax. In the year 1982 the appellant filed four applications under s.22 for rectification of the mistakes in the assess ment orders for assessment years 1975 76, 1976 77, 1977 78 and 1978 79 on the ground that the turnover in respect of purchases made on behalf of Ex U.P. principals had been wrongly assessed to sales tax. All the four applications were rejected by the Sales Tax Officer on merits. The appellant preferred appeals and the Appellate Au thority allowed the appeals relating to the assessment orders for the assessment years 1976 77, 1977 78 and 1978 79 on merits but dismissed the appeal in respect of the assess ment order for the assessment year 1975 76 on the ground that the application for rectification had been filed beyond three years from the date of the original order of assess ment and was thus barred by limitation. The appellant filed second appeal before the Sales Tax Tribunal in respect of the assessment year 1975 76. The Department also preferred second appeals in respect of the orders of assessment for assessment years 1976 77, 1977 78 and 1978 79. The Tribunal allowed the appeal 141 of the appellant holding that the rectification application made in respect of the assessment order for the assessment year 1975 76 was within limitation as the original order dated 7.2.1979 had ceased to exist on the re opening of the assessment and the final order had been passed on 18.1. 1980 within three years from the date of the application for rectification which had been filed on 4.11.1982. However, the appeals of the Department were dismissed. Out of the four revision applications filed by the Department, the High Court dismissed three applications and allowed the revision application in respect of the applica tion for rectification of the assessment order for the assessment year 1975 76 holding that the application for rectification had been filed beyond three years from the date of the original order dated 7.2. 1979 and that the order dated 18. 1. 1980 had no effect on the question of limitation. In the appeal to this Court, on behalf of the appellant it was contended that on the issue of the notice under s.21 of the Act original assessment order ceased to be in force and that the only order of assessment in respect of assess ment year 1975 76 which should be taken into consideration for all purposes including the application for rectification of mistake is the order dated 18.1. On behalf of the State it was contended that since no order of reassessment had actually been passed in the in stant case on 18.1. 1980 but only an order discharging the notice issued under s.21 of the Act had been passed the original order of assessment passed on 7.2. 1979 continued to remain in force. Allowing the appeal, HELD: 1. The judgment of the High Court is set aside and the decision of the Tribunal restored. [150G] 2. Section 21 of the Uttar Pradesh Sales Tax Act, 1948, authorises the assessing authority to make an order of assessment or reassessment. It says that if the assessing authority has reason to believe that the whole or any part of the turnover of a dealer, for any assessment year or part thereof, has escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is assessable under the Act, or any deduc tions or exemptions have been wrongly allowed in respect thereof, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider neces 142 sary assess or reassess the dealer or tax according to law. [149G H;150A B] 3. Section 21 of the Act does not require the assessing authority to pass an order deciding whether it is necessary to proceed with the inquiry under that section or not before passing an order of assessment or reassessment under that section. The only order which the assessing authority is required to make under s.21 after a notice is issued to the dealer under that section is an order of assessment or reassessment. [150C D] 4. Once a notice is issued for ,purposes of making reassessment the earlier proceedings become re opened and the initial order of assessment ceases to be operative. The effect of the re opening of the assessment is to vacate or set aside the initial order of assessment and to substitute in its place the order mode on reassessment and that the result of the re opening of the assessment is that a fresh order for reassessment would have to he made in respect of all matters including those matters in respect of which there is no allegation of the turnover escaping assessment. [148H;149A B] 5. Once an assessment order hod been rectified and it was sought to make a further rectification of that order the period of limitation for making such further rectification would commence not from the date of the original assessment order but from the date of the earlier rectification order. [148G H] Deputy Commissioner of Commercial Taxes vs H.R. Sri Ramulu; , ; Shinde Brothers etc. vs Deputy Commissioner, Raichur, A.I.R. 1967 S.C. 15 12; Commissioner of Income tax, Excess Profits Tax, Hyderabad, Andhra Pradesh V. Jagan Mohan Rao & Others, ; Commis sioner of Sales Tax, Madhya Pradesh vs M/s. H.M. Esufali, H.M. Abdulali, Siyaganj, Indore, ; and International Cotton Corporation (P) Ltd. vs Commercial Tax Officer, HubIi & Ors., [1975] 2 S.C.R. 345, followed. The order dated 18.1. 1980 is an order of reassess ment notwithstanding the fact that a regular order of reas sessment has not been passed. The order passed on 18.1. 1980 should be construed as a fresh order of assessment passed under s.21 of the Act and the initial order of assessment dated 7.2.1979 should be deemed to be the order passed again on 18.1.1980. [149E F] 7. If the assessee is able to show any error apparent on the record from the order of assessment dated 7.2. 1979 the appellant is entitled to 143 succeed in its application for rectification provided it is made within the prescribed time, i.e., three years from the date of the order passed under s.21 of the Act. [149E F] Deputy Commissioner of Commercial Taxes vs H.R. Sri Ramulu, ; , referred to. It should be held that the assessing authority had adopted the earlier order dated 7.2.1979 as the order of assessment passed at the conclusion of the proceedings under s.21 of the Act. The period of limitation for the applica tion for rectification should, therefore, be calculated from the date of the order under s.21 of the Act, i.e. 18.1.1980. [150F]

The respondent applied for registration of the trade name "Lakshmandhara" in relation to the medicinal preparation manufactured by him at Kanpur since 1923. It was admitted that the respondent 's product was mainly sold in the State of Uttar Pradesh. The appellant opposed the registration on the ground that it had an exclusive proprietary interest in the trade mark "Amritdhara" in relation to a similar medicinal preparation which had acquired considerable repu tation since 1903 and that the respondent 's trade name "Lakshmandhara" was likely to deceive and cause confusion and therefore the registration was prohibited by section 8 of the Trade Marks Act. The Registrar of Trade Marks held that there was sufficient similarity between "Amritdhar 'a ' and "Lakshamandhara" so as to cause confusion and it was likely to deceive the public, but the acquiescence of the appellant in the use of the trade name "Lakshmandhara" by the respondent in the relation to his product for a long period to the knowledge of the appellant was special circumstance under section 10(2) entitling the respondent to have his name registered along with the appellant 's trade name. He, however, confined the registration to sales with the State of Uttar Pradesh. Both the appellant and the respondent appealed to the High Court which allowed the respondent 's appeal holding that the words "Amrit" and "dhara" were common words in the Hindi language as also the words "Lakshman" and "dhara" and that there was no possibility of any Indian confusing the two ideas. The High Court further held there had been honest concurrent user by the respondent. ,, On the question of acquiescence it held against the respondent. On appeal by special leave. Held, that the question whether a trade name is likely to deceive or cause confusion by its resemblance to another al. ready registered is a matter of first impression and one for decision in each case and has to be decided by taking an over. all view of all the circumstances. The standard of comparison to be adopted in judging the resemblance is from the point of 485 view of a man of average intelligence and imperfect recollection. Pianotist Co. 's Application, , referred to. Corn Products Refining Co., vs Shangrila Food Product8 Ltd., , referred to. Held, further, that the two names as a whole should be considered for comparison and not merely the component words thereof separately. William Bailey (Birmingham) Ltd. '8 application, (1935) 52 R. P. C. 137, referred to. Held, also, that in the present case the similarity in the two name in respect of the same description of goods was likely to deceive or cause confusion; but the facts found by the Registrar established the plea of acquiescence so a to bring the case within sub s.(2) of section 10, and the Registrar was right in imposing the limitation which he imposed.

A textile mill in Madhya Pradesh employed about a thousand workers. The mill was owned by a firm, the appellant in the Second Appeal. A fire broke out in the Mill doing appreciable damage to some of the machines. From a letter of the Insurance company, the extent of the damage caused, was ascertained to be about Rs. 37,420/ . In terms of the last notice given by the employers the mills did not commence work but instead, the management transferred the mills to the company which had been incorporated on 8th December 1959. From the facts it was clear, that the damage to the machinery was insignificant as against the total assets transferred to the company and the damage was not such that it was not possible to run the mills at all. Respondents 2 to 346 in the Second Appeal applied under section 33C(2) of the Industrial Disputes Act to the Labour Court claiming lay off compensation for the period they remained idle. The Labour Court held that there had been a lay off within the meaning of section 2(K KK) of Industrial Disputes Act and except 'badli ' workers the employees were entitled to compensation for the full period of 18 months. The appellants in both the appeals, filed writ petitions before the High Court for quashing the order of the Labour Court and the High Court raised several issues and ultimately remanded the matters back to the Labour Court for recording fresh evidence as to whether the applicants presented themselves for work at the appointed time at least once a day within the meaning of section 25E(ii). On the application of the appellants the High Court granted certificates under article 133 (1) (a) of the Constitution. The point urged by the appellants was that if a claim is made on the basis of a lay off and the employer contends that there was no lay off but closure it is open to a labour court to entertain an application under section 33C(2). It is more so when the dispute was not between a solitary workman on the one hand and the employer on the other but a whole body of workmen ranged against their employer who was faced with numerous applications before the labour court for computation of benefit in terms of money. Dismissing the appeals, HELD : (i) From the facts and circumstances of the Case, it was clear that the business of the company was continuing. They, in fact, continued to employ several employees and their notices say that some portion of the mills would continue to work. The Labour Court 's jurisdiction could not be ousted by a mere plea denying the workmen 's claim to the computation of benefit in terms of money. The Labour Court must go into the matter and come to a decision as to whether there was really a closure or a lay off. If it took the view that there was a lay off, it would be acting within its jurisdiction if it awarded compensation in terms of the provisions in Ch. The High Court is right in upholding the decision of the Court. [591 E H] 581 (ii) Section 33C(2) takes within the purview, rases of workmen who claim that the benefits to which they were entitled should be computed in terms of money, even though the right to the benefit on which their claim is based, is disputed by their employers. In other words, the Labour Court may enquire into all such acts or disputes which are incidental to the main dispute, [588 C D] (iii) Section 25C provides for the measure of compensation to be awarded in cases of lay off of workers. The claim to compensation of every workman who is laid off is one which arises under the statute itself and section 25C, provides for a benefit to the workman which is capable of being computed in terms of money under section 33C(2), of the Act. The scheme of the Act is that an individual workman can approach a labour court for computation of compensation in terms of section 25C of the Act and he is not concerned to see whether other co workers will adopt the same course or not. The fact that a number of workers make claims of identical nature cannot make any difference to the individual workman who prefers the claim, The mere fact that a large number of persons makes a claim, of the same nature against the employer does not change the nature of the dispute so as to take it out of the pale of section 7 of the Act and render the dispute one which can only be dealt with by an industrial tribunal. [588 E H] Central Bank of India Ltd. vs P. section Rajagopalan, ; , followed. , Mining Engineer vs Rameshwar, [1968] 1 S.C.R. 140, U.P. Electric Supply Co. vs R. K. Shukla, ; , Ramkrishna Ramnath vs Presiding Officer, Nagpur, and Sawatram Mills vs Baliram, [1966] 1 S.C.R. 764, referred to and distinguished.

No. 108 of 1961. Writ Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights. 2 M. C. Setalvad, Attorney General of India, Rameshwar Nath, section N. Andley and P. L. Vohra, for the petitioner. C. K. Daphtary, Solicitor General of India, K. L. Misra, Advocate General, U.P., K. B. Asthana and C. P. Lal, for the respondents. April 17. The Judgment of the Court was delivered by VENKATARAMA AIYAR, J. The petitioner is a company incorporated under the Indian Companies Act, its registered office being at Kanpur in the State of Uttar Pradesh, and it is carrying on business in the manufacture and sale of jute goods. By a notification dated March 31, 1956, the State of Uttar Pradesh imposed a tax of one anna in the rupee on the sale proceeds of jute. Previously thereto, the tax payable on sale of jute was six pies in the rupee. This notification having been struck down by the High Court of Allahabad as unauthorised and inoperative, the State legislature enacted the U. P. Sales Tax (Validation) Act,. 1958 (U. P. Act XV of 1958), hereinafter referred to as the Validation Act, validating the said notification as from March 31, 1956. In this petition filed under article 32 of the Constitution, the petitioner contends that notwithstanding the Validation Act, the notification in question continues to be void and inoperative, because it has not in fact been validated, and because the Act itself is ultra vires. The impugned notification was, it may be mentioned, superseded by a fresh notification on August 1, 1956, and the present dispute relates only to the tax on sales effected between April 1, 1956, and July 31, 1956. If the Validation Act is intro vires, the tax payable by the petitioner would, in accordance with the impugned notification, be Rs. 1,26,529 3 0, whereas if the said Act is ultra vires, the tax would be reduced by half Though the point for decision is a simple one lying within a narrow compass, to reach it one has to wade through a perfect morass of statutes, notifications and judicial pronouncements. We begin with what has 4 been termed the "Principal Act" by which sales tax was imposed in the Province. That is the U. P. Sales Tax Act No. XV of 1948, and that came into force on April 1, 1948. There were subsequent amendments to it in 1948, 1950 and 1952, but they are not material for the present discussion. It is sufficient to refer to section 3 A as it stood on March 31, 1956, when the notification in question was issued. This section ran as follows: "3 A. Single point taxation (1) Notwithstanding anything contained in Section 3, the State Government may by notification in the official Gazette declare that the turnover in respect of any goods or class of goods shall not be liable to tax except at such single point in the series of sales by successive dealers as the State Government may specify. (2) If the State Government makes a declaration under sub section (1) of this section, it may further declare that the turnover of the dealer, who is liable to pay tax on the sale of such goods, shall in respect of such sales, be taxed at such rate as may be specified not exceeding one anna per rupee if the sale relates to goods specified below: (i) Motor vehicles including motor cars, motor taxi cabs, motor cycles and cycle combinations, motor scooters, motorettes, motor omnibuses, motor vans and motor lorries. Chassis of motor vehicles. Articles including rubber and other tires and tubes and batteries adapted for use as motor part and accessories of motor vehicles, not being such arti cles as are ordinarily also used for other purposes than as parts of accessories of motor vehicles. (ii) Refrigerators and air conditioning plants. (iii) (a) Wireless reception instruments, apparatus and component parts thereof, including all electrical valves, accumulators, amplifiers and loudspeakers which are not specially designed for purposes other than wireless reception. (b) Radiogramophones. (iv) Cinematographic, photographic and other cameras. projectors and enlargers and films, plates, papers and cloth required for use therewith. 5 (v) Scents and perfumes, and nine pies per rupee if it relates to any other goods. " It was under this provision that the U. P. Government had issued a notification on June 8, 1948, imposing a tax of six pies in the rupee on the sale of jute. In exercise of the power conferred by article 213(1) of the Constitution, the Governor of Uttar Pradesh issued on March 31, 1956, Ordinance No. IX of 1956, and that was published in the Official Gazette on the same date. Under this Ordinance the whole of subsection (2) of section 3 A as it then stood was deleted and the following substituted: "(2) If the State Government makes a declaration under subsection (1), it may further declare that the turnover in respect of such goods shall be liable to tax at such rate not exceeding one anna per rupee as may be specified. " The effect of this provision was to exact one ceiling rate of one anna per rupee on the sale proceeds for all goods leaving it to the State to fix within the ceiling such rates of tax for such goods as it might determine. On the same date, the Government published the following notification No. ST. 905/X on which the entire controversy has arisen. "In exercise of the power conferred by section 3 A of the U. P. Sales Tax Act, 1948, as amended from time to time, and in supersession of all previous notifications on the subject, the Governor of Uttar Pradesh is hereby pleased to declare that the turnover in respect of the goods specified in the List below shall not with effect from April 1, 1956, be liable to tax except (a) in the case of goods imported from outside, Uttar Pradesh at the point of sale by importer; and (b) in the case of goods manufactured in Uttar Pradesh, at the point of sale by the manufacturer; and the Governor is further pleased to declare that such turnover shall with effect from the said date be taxed at the rate of one anna per rupee. List 18. Jute goods" 6 In due course, the U. P. Sales Tax Ordinance No. IX of 1956 was replaced by the U. P. Sales Tax (Amendment) Act XIX of 1956, and that came into force on May 28, 1956. It merely reproduces the terms of the Ordinance No. IX of 1956 with this modification which is consequential, that the amended section including section 3 A shall "be deemed to have effect on and from the first day of April, 1956". If notification No. ST. 905/X dated March 31,1956, is valid there is no question that the petitioner would be liable to pay sales tax for the period in question at the rate of one anna per rupee on the sale proceeds. One of the dealers who had been assessed to sales tax in accordance with this notification filed an application under article 226 in the High Court of Allahabad calling in question its validity and this proved successful, the court holding that there was no power in the State to issue the impugned notification under section 3 A on March 31, 1956, as that section was itself to come into force only on April 1, 1956, vide Adarsh Bhandar vs Sales Tax Officer (1). The correctness of this decision is not under challenge in these proceedings. We do not therefore desire to express any opinion on it. With a view to remove the defect pointed out in Adarsh Bhandar vs Sales Tax Officer (1), the State legislature passed the U. P. Sales Tax (Amendment) Act XXIV of 1957. That Act received the assent of the President on August 31, 1957, and was published on September 3, 1957. It runs, so far as is material, as follows: "For sub section (2) of Section I of the U. P. Sales Tax (Amendment) Act, 1956, the following shall be and be deemed to have always been substituted: 'This Section, so much of Section 3, as relates to the substitution of the second proviso to sub section (1) of Section 3 of the U. P. Sales Tax Act, 1948 (hereinafter called the principal Act) and section 4 shall have effect on and from the 31st day of March, 1956 '. " (1) A.I.R. 1957 All. 475. 7 The result of this amendment was that section 3 A was given retrospectively operation from March 31, 1956, instead of April 1, 1956, as originally enacted. The intention behind the legislation is obvious. If the impugned notification was, as held in Adarsh Bhandar vs Sales Tax Officer (1), invalid, because it was issued before section 3 A was in operation, that objection could no longer hold good as that section would now operate from a point of time anterior to the issue of the notification. If the State thought that this legislation would give a quietus to the controversy, they were sadly mistaken. After the Amendment Act of 1957 came into force, another dealer who was sought to be assessed pursuant to the notification dated March 31, 1956, filed a petition under article 226 before the Allahabad High Court and raised the contention that as the Amendment Act merely amended section 3 A and did not in terms validate the impugned notification, no proceedings could validly be taken under that notification and that therefore the proposed levy was illegal. This contention was again upheld by a Full Bench in Firm Bangali Mal vs Sales Tax Officer (2), which held that there was a difference between the existence of a power and its actual exercise, that while by reason of Act XXIV of 1957, a power had been conferred on Government to issue a notification on March 31, 1956, the notification actually issued on that date could not be referred to that power, that it was in exercise of the power supposed to have been conferred by section 3 A as it stood on March 31, 1956, and that in consequence the impugned notification was not saved by the new Act. This decision set the legislature again on the move and that brings us to what may be said to be the final round in the game. The State legislature enacted a fresh legislation for the purpose of effectuating the impugned notification. That was U. P. Sales Tax Validation Act XV of 1958. It received the assent of the President on May 3, 1958, and was published in the Official Gazette on May 6, 1958. The preamble to the Act states that "it is expedient to provide for (1) A.I.R. 1957 All. 475. (2) A.I.R. 1958 All, 478. 8 the validation of certain notifications issued under the U. P. Sales Tax Act, 1948, (U. P. Act XV of 1948) and any action taken in pursuance thereof". Section 3 of the Act which deals with the present matter runs as follows: "3. Validation of certain notifications and action taken in pursuance thereof. (1) Notwithstanding any judgment, decree or order of any court, the notifications specified in Part A, Part B and Part C of the Schedule shall be deemed to have been issued in exercise of the powers conferred respectively by section 3, section 3 A and section 4 of the U. P. Sales Tax Act, 1948, as if the said sections were in force on the date on which the notifications were issued in the form in which they were in force immediately before the commencement of this Act and all the said notifications shall be valid and shall be deemed always to have been valid and shall continue in force until amended, varied or rescinded by any notification issued under any of the said section. (2) Anything done or any action taken (including any order made, proceeding taken, direction issued, jurisdiction exercised, assessment made or tax levied or collected) purporting to have been done or taken in pursuance of any of the notifications specified in the Schedule shall be deemed to be and to have been validly and lawfully done or taken." In Part B are set out the notifications issued in exercise of the powers conferred by section 3A of the U.P. Sales Tax Act, 1948, and one of them is the impugned notification No. ST. 905/X. If this legislation is valid, the impugned notification stands validated and the petitioner would be liable to pay tax in accordance therewith. But the petitioner contends that the Validation Act has not brought about any change in the situation and that the notification dated March 31, 1956, continues to be null and void now as before the Act. Two grounds have been urged in support of this contention that on its true construction the Act does not in fact validate the impugned notification and that it is not a 9 law which the State legislature was competent to enact and it is therefore a nullity. We must now examine these contentions. As regards the first contention, the argument in support of it is that the words, "in the form in which they were in force immediately before the commencement of this Act" in section 3 must, in their setting, be read as qualifying the word, "notifications" and not the word "sections", and in that view the notification in question is subject to the same infirmity which attached to it when it was published on March 31., 1956. We are wholly unable to appreciate this contention. The object of the legislation as stated in the long title and in the preamble to the Act was to validate the impugned notification in relation to the amended section. Schedule B to the Act expressly mentions that notification. And if we are now to accede to the contention of the petitioner, we must hold that though the legislature set about avowedly to validate the notification dated March 31, 1956, it failed to achieve that object. A construction which will lead to such a result must, if that is possible, be avoided. The words, "in the form in which they were in force immediately before the commencement of this Act", no doubt occur after the word, "notifications". But then the words, "in the form" can have no reference to the impugned notification, because it had never changed form, whereas they were quite appropriate to section 3A, because it had been amended. It should further be noted that the Validation Act was published both in Hindi and in English, and both of them were authorised versions. The words in the Hindi version make it clear beyond all doubt that the words, "in the form in which they were in force immediately before the commencement of this Act" qualify the word "sections" and not the word "notifications". That is the view expressed by a Bench of the Allahabad High Court in H. L. M. Biri Works vs Sales Tax Officer (1), on a comparison of the two versions, and we are in agreement with it. There would have been no scope for this argument if transposing the 'words, the section read, "as if the said (1) A.I.R. 1959 All. 2 10 sections were, in the form in which they were in force immediately before the commencement of this Act, in force on the date on which the notifications were issued. " But even in its present setting that is the meaning of the section, and the impugned notification must be held to be within the saving of the Validation Act. We now proceed to examine the second contention of the petitioner that the validation Act is itself invalid as being ultra vires the powers of the State legislature under the Constitution. The argument of the learned Attorney General in support of this contention may thus be stated. The State legislature derives its authority to enact a law with respect to tax on the sale of goods under entry 54 in List II of the Seventh Schedule to the Constitution. It has been held that a sale for the purpose of the entry must be what in law is recognised as sale. Likewise, a law imposing tax on sales of goods must, to be intra vires, possess certain well defined characteristics associated with such laws. In The Province of Madras vs Boddu Paidanna and Sons (1) it has been held that sales tax is a tax on the occasion of sale. In the present case, the sales sought to be taxed took place between April 1, 1956 and July 31, 1956, whereas the Validation Act, by force of which the tax becomes payable, came into force in 1958. It is therefore not a tax on the occasion of sale. Moreover a sales tax is an indirect tax which can be passed on by the seller to the purchaser. The Sales Tax Acts passed by the legislatures of several States provide for the seller collecting the tax from the purchaser as does the U. P. Sales Tax Act XV of 1948, vide section 8A. That could be done only if the tax was levied before the sale took place. Therefore by the very nature of it there could be no retrospective legislation in respect of sales tax. And finally it is argued that the imposition of a tax retrospectively would be inconsistent with the provisions of the U.P. Sales Tax Act, 1948, and could not have been contemplated by that Act. Such for example are the provisions of section 8A which provide for the registration of dealers for (1) 11 the assessment years, the deposit into Treasury of sales tax collected from the purchasers in certain contingencies, section 14 of the Act which imposes penalty for non registration under section 8A, and rule 63 which provides for the deposit of the sales tax collected under section 8A(4) within thirty days of the expiry of the month in which the amount is charged. It is accordingly contended that whether we have regard to the true features of the sales tax legislation or the provisions of the U.P. Sales Tax Act, the Validation Act could not be held to be one with respect to sales tax, that it is therefore not within entry 54, and as there is no other entry in List II or List III of the Seventh Schedule to the Constitution, under which the legislation could be justified, it must be held to be ultra vires. So ran the argument. The point for decision., stating it succinctly, is whether the Validation Act is within the ambit of entry 54 in List II of the Seventh Schedule to the Constitution. That entry confers on the States authority to enact a law with respect to tax on sales of goods. Now what is the extent of that authority? There must be in fact a sale as recognised by law. It is only then that a tax could be imposed. But if the transaction sought to be taxed is not a sale, a law which seeks to tax it, treating it as a, sale, would be ultra vires. Thus in The Sales Tax Officer vs Messrs. Budh Prakash Jai Prakash (1) a tax on agreement to sell was held to be not authorised by the entry, and in The State of Madras vs Gannon Dunkerley & Co., (Madras) Ltd. (2), a tax on the supply of materials in a contract for the construction of works simpliciter, on the footing of a sale was held to be outside the entry, and the legislation which imposed such a tax was struck down as ultra vires. But where the transaction is one of sale of goods as known to law, the power of the State to impose a tax thereon is plenary and unrestricted subject only to any limitation which the Constitution might impose, and in the exercise of that power, it will be competent to the legislature to impose a tax (1) ; (2) ; 12 on sales,which had taken, place prior to the enactment of the legislation. But it is urged on the strength of certain observations in The Province of Madras vs Boddu Paidanna and Sons (1) that a sales tax is a tax on the occasion of sale, and that therefore it could not be imposed with retrospective operation. This contention is, in our judgment, wholly without substance. Now, the point for decision in that case was whether a tax imposed by a Provincial legislature on the sale of oil by a person who manufactured it was bad on the ground that it was in essence an excise duty. While a sales tax could be imposed by a Provincial legislature, an excise duty could be imposed only by the Federal legislature. In holding that the tax in question was a sales tax and not an excise duty, the court observed as follows: "The duties of excise which the Constitution Act assigns exclusively to the Central Legislature are, according to the Central Provinces Case, duties levied upon the manufacturer or producer in respect of the manufacture or production of the commodity taxed. The tax on the sale of goods, which the Act assigns exclusively to the Provincial Legislatures, is a tax levied on the occasion of the sale of the goods. Plainly a tax levied on the first sale must in the nature of things be a tax on the sale by the manu facturer or producer; but it is levied upon him qua seller and not qua manufacturer or producer." (P. 101). In the context, the words, "on the occasion of the sale" have reference to the character of the transaction and not to the point of time at which the duty becomes leviable, and they have no bearing on the question as to when such a tax could be imposed. And then it is argued that a sales tax being an indirect tax, the seller who pays that tax has the right to pass it on to the consumer, that a law which imposes a sales tax long after the sales had taken place deprives him of that right, that retrospective operation is, in consequence, an incident inconsistent with the true character of a sales tax law, and that the Validation Act is therefore not a law in respect of tax on the (1) 13 sale of goods, as recognised, and it is ultra vires entry 54. We see no force in this contention. It is no doubt true that a sales tax is, according to accepted notions, intended to be passed on to the buyer, and provisions authorising and regulating the collection of sales tax by the seller from the purchaser are a usual feature of sales tax legislation. But it is not an essential characteristic of a sales tax that the seller must have the right to pass it on to the consumer, nor is the power of the legislature to impose a tax on sales conditional on its making a provision for sellers to collect the tax from the purchasers. Whether a law should be enacted, imposing a sales tax, or validating the imposition of sales tax, when the seller is not in a position to pass it on to the consumer, is a matter of policy and does not affect the competence of the legislature. This question is concluded by the decision of this Court in The Tata Iron & Steel Co., Ltd. vs The State of Bihar (1). The following observations of Das, C. J., bearing on this question might be quoted: " Under the 1947 Act the primary liability to pay the sales tax, so far as the State is concerned, is on the seller. Indeed before the amendment of the 1947 Act by the amending Act the sellers had no authority to collect the sales tax as such from the purchaser. The seller could undoubtedly have put up the price so as to include the sales tax, which he would have to pay but he could not realise any sales tax as such from the purchaser. That circum stance could not prevent the sales tax imposed on the seller to be any the less sales tax on the sale of goods. The circumstance that the 1947 Act, after the amendment, permitted the seller who was a registered dealer to collect the sales tax as a tax from the purchaser does not do away with the primary liability of the seller to pay the sales tax. This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and some times by reason of competition with other registered dealers he may find it profitable to sell his goods (1) ; 14 and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. The buyer is under no liability to pay sales tax in addition to the agreed sale price unless the contract specifically provides otherwise. See Love vs Norman Wright (Builders) Ltd. If that be the true view of sales tax then the Bihar Legislature acting within its own legislative field had the powers of a sovereign legislature and could make its law prospectively as well as retrospectively." (pp. 1378 1379). The decision of this Court in Buchirajalingam vs State of Hyderabad (1) is also to the same effect. The power of a legislature to enact a law with reference to a topic entrusted to it, is, as already stated, unqualified subject only to any limitation imposed by the Constitution. In the exercise of such a power, it will be competent for the legislature to enact a law, which is either prospective or retrospective. In The Union of India vs Madan Gopal(2) it was held by this Court that the power to impose tax on income under entry 82 of List I in Schedule VII to the Constitution, comprehended the power to impose income tax with retrospective operation even for a period prior to the Constitution. The position will be the same as regards laws imposing tax on sale of goods. In M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh (3), this Court had occasion to consider the validity of a law enacted by Parliament giving retrospective operation to laws passed by the State legislatures imposing a tax on certain sales in the course of inter State trade. One of the contentions raised against the validity of this legislation was that, having regard to the terms of article 286(2), the retrospective legislation was not within the competence of Parliament. In rejecting this contention, the Court observed: (1) A.I. R. , 759 60. (2) ; (3) ; 15 "Article 286(2) merely provides that no law of a State shall impose tax on inter State sales 'except in so far as Parliament may by law otherwise provide '. It places no restrictions on the nature of the law to be passed by Parliament. On the other hand, the words 'in so far as ' clearly leave it to Parliament to decide on the form and nature of the law to be enacted by it. What is material to observe is that the power conferred on Parliament under article 286(2) is a legislative power, and such a power conferred on a Sovereign Legislature carries with it authority to enact a law either prospectively or retrospectively, unless there can be found in the Constitution itself a limitation on that power." (p. 1460). And it was held that the law was within the competence of the legislature. We must therefore hold that the Validation Act is not ultra vires the powers of the legislature under entry 54, for the reason that it operates retrospectively. It was finally urged on the basis of sections 8 A, 14 and rule 23 of the U. P. Sales Tax Act that they contemplated only a prospective legislation and that those sections would be impossible of compliance under the present legislation. This is a consideration which is wholly foreign to the present question. The point which we have got to decide is whether the Validation Act is ultra vires. That has to be determined solely on the construction of entry 54 in List II in the Seventh Schedule, and any other provisions of the Constitution bearing on the question. Even assuming that the provisions of the U. P. Sales Tax Act XV of 1948 contemplate a levy of tax in future, that does not affect the power of the legislature under entry 54 to enact a law with retrospective operation. It can only result in those provisions being unenforceable as regards the levy under the impugned notification. Dealing with a similar contention in M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh (1), this Court observed: "It is also contended that under the Sales Tax (1) ; 16 Acts, the levy of tax is annual and the rules contemplate submission of quarterly returns and payment of taxes every quarter on the admitted turnover, and that a conditional legislation under which payment of tax will become enforceable in fururo would be inconsistent with the scheme of the Act and the rules. But this argument, when examined, comes to no more than this that the existing rules do not provide a machinery for the levy and the collection of taxes which might become payable in future, when Parliament lifts the ban. Assuming that is the true position, that does not affect the factum of the imposition, which is the only point with which we are now concerned. That the States will have to frame rules for realising the tax which becomes now payable is not a ground for holding that there is, in fact, no imposition of tax." (p. 1454). None of the grounds urged by the petitioner in support of the contention that the Validation Act is ultra vires can be sustained. In the result we must hold that the Validation Act is intra vires, and the impugned notification dated March 31, 1956, stands validated by it. This petition must therefore be dismissed with costs. Petition dismissed.

In exercise of the power conferred by section 3A(2) of the U.P. Sales Tax Act, 1948, which enabled the State Government, by notification, to fix the rate of the tax to be levied on the sales of goods specified in the section not exceeding nine pies per rupee, the Government issued at notification dated June 8, 1948 imposing a tax of six pies in the rupee on sales of jute. On March 31, 1956, the Governor of Uttar Pradesh issued an Ordinance, inter alia, amending section 3A(2) of the Act, the effect of which was to enact one ceiling rate of one anna per rupee on the sale proceeds for all goods leaving it to the State to fix within the ceiling such rates of tax for such goods as it might determine. On the same date the Government issued a notification by which sales on jute were liable to pay sales tax at the rate of one anna per rupee on the sale proceeds. The Ordinance was replaced by U.P. Sales Tax (Amendment) Act, 1956, under which the amended section shall "be deemed to have effect on and from April 1, 1956". One of the dealers who had been assessed to sales tax in accordance with the notification filed an application under article 226 of the Constitution of India, calling in question its validity, and the High Court of Allahabad held that there was no power in the State to issue the notification under section 3A(2) on March 31, 1956, as that section was itself to come into force only on April 1, 1956. With a view to remove the defect pointed out in said decision, the State Legislature passed the U.P. Sales Tax (Amendment) Act, 957, but this in turn having been declared by the Allahabad High Court not being effective in saving the notification, the legislature ultimately enacted the U.P. Sales Tax (Validation) Act, 1958. Section 3 of this Act provided that notwithstanding any judgment of any court the notification dated March 31, 1956, shall be deemed to have been issued in exercise of the powers conferred by section 3A of the U.P. Sales Tax Act, 1948, as if the said section was in force on the date on 2 which the notification was issued in the form in which it was in force immediately before the commencement of this Act. The petitioner who was carrying on business in the manufacture and sale of jute goods filed an application under article 32 of the Constitution and contended that the Validation Act of 1958, had not brought about any change in the situation on the grounds (1) that the words "in the form in which it was in force immediately before the commencement of this Act" in section 3 must be read as qualifying the word "notification" and not the word "section" and in that view the notification in question was subject to the same infirmity which attached to it when it was published on March 31, 1956, and (2) that the State Legislature was not competent to enact a law imposing sales tax retrospectively and therefore the Validation Act was ultra vires. Held: (1) that on its proper construction, the words "in the form in which it was in force immediately before the commencement of this Act" in section 3 of the U.P. Sales Tax (Validation) Act, 1958, qualify the word "section" and not the word "notification", and that on that view the impugned notification was within the saving clause of the Validation Act. H. L. M. Biri Works vs Sales Tax Officer, A.I.R. 1959 All. 208, approved. (2) that the power of a legislature to enact a law with re ference to a topic entrusted to it is unqualified and that in the exercise of such a power it will be competent for the legislature to enact a law which is either prospective or retrospective. Accordingly, the Validation Act is not ultra vires the powers of the legislature under entry 54 in List II of the Seventh Schedule to the Constitution, for the reason that it operates retrospectively. The fact that the seller is not in a position to pass the sales tax on to the consumer does not affect the competence of the legislature to enact a law imposing a sales tax retrospectively as that is a matter of policy. The Province of Madras vs Boddu Paidanna and Sons, [1942] F.C.R. go, explained. The Tata Iron & Steel Co., Ltd. vs The State of Bihar, ; , Buchirajalingam vs State of Bihar, A.I.R. 1958 S.C. 756 and M.P.V. Sundararamier & Co. vs The State of Andhya Pradesh, ; , followed. The Union of India vs Madan Gopal Kabra, ; , relied on.

The appellants, who are owners of Small Scale Industrial Units, employ mechanised process for decortication of retted coconut husks. The respondent State issued a notification in July 1973, under r. 114(2) of the Defence of India Rules,, 1971, imposing a total ban on the use of machinery for defibring husks in the district of Trivandrum, Quilon and Alleppey. The appellants, who were affected by the notification, challenged the validity of the notification. The High Court dismissed the petition. In appeal to this Court, it was contended : (1) that section 3(2)(21) of the Defence of India Act does not authorise r. 114; (2) that the formation of opinion by the State Government for the exercise of power under the rule is a justiciable issue, that the court should call for the material on which, the opinion had been formed, and examine it to find out whether a reasonable man or authority could have come to the conclusion that for securing equitable distribution and availability of retted husks at fair prices a regulation or prohibition of the manufacture of fibre by mechanical process was necessary; (3) that the reasons given in the notification imposing a total ban on the use of machinery were not justified; (4) that there was no application of the mind by the authority to any genuine materials or relevant considerations while exercising the power; (5) that section 38 of the Defence of India Act requires that, consonant with the purpose of ensuring the public safety, defence of India and Civil defence, there should be minimum interference by an authority or person, acting in pursuance of the Act with the ordinary avocations of life and enjoyment of property; (6) that the notification offended article 14; and (7) that it violated article 301, of the Constitution. Dismissing the appeal, HELD : (1) Rule 114 is in complete consonance with the powers conferred, under section 3(2)(21). [102 B] (2) Where powers are conferred on public authorities to exercise the same when "they are satisfied" or when "it appears to them," or when "in their opinion" a certain State of affairs exists, or when powers enable public authorities to take "such action as they think fit" in relation to a subject matter, the courts will not readily defer to the conclusiveness of an executive authority 's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated. Administrative decisions in exercise of powers conferred in subjective terms are to be made in good faith and on relevant considerations. The courts can inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the court 's opinion of what is reasonable to the criterion of what a reasonable body might have decided; and courts will find out whether conditions precedent to the formation of the opinion have a factual basis. But the onus of establishing unreasonableness rests upon the person challenging the validity of the acts. [99 C D. E G] (3) The Committee appointed by the State Government in connection with, the revision of minimum wages in the coir industry reported that when unemployment is acute in the State it is not practicable to encourage mechanisation for fibre production till alternative sources of employment are developed, and 94 recommended that the Government might appoint a separate committee to study the various problems resulting from mechanisation in the industry. Accordingly, a study group was appointed and that group reported that coir industry brings employment or partial employment to an area where there is chronic unemployment and under employment, and hence, any kind of mechanisation is bound to cause displacement of people. The study group therefore suggested a composite plan by which the coir industry should be woven into the pattern of area development or regional development which will bring prosperity not only to the coir industry but also to many other ancillary industries and avocations, that the pace of mechanisation should be such that none should be thrown out of employment, and that for those who are displaced alternative work is to be found in the general development that is envisaged. The State Government found that out of 414 mechanised units in the State, 282 units were in the three districts of Trivandrum, Quilon and Alleppey and that the balance were in the remaining eight districts of the State, and that the use of machinery for the purpose of extraction of fibre from husks in regions other than Trivandrum, Quilon and Alleppey districts had not affected the supply of and availability at fair prices of husks for extraction of fibre in the traditional sector. The Government therefore, was of the 'opinion that it was necessary to prohibit the use of machinery only in those three districts, but that it was not necessary to prohibit the use of machinery for the production of fibre in the other eight districts. [100 F 101 H] (4) It is a matter of policy for the State Government to decide to what extent there should be interference in relation to enjoyment of property. Public interest is of paramount consideration and in, the present case the steps taken were in the larger interests of labour engaged in the coir industry. The notification was based on a consideration of relevant and useful material. 'The opinion of the State Government could not be said to have been based on any matter extraneous to the scope and purpose of the relevant provisions of the statute. The materials supporting the subjective satisfaction indicate that there were reasonable grounds for believing that the prescribed state of affairs existed and a course of action was reasonably necessary for the given purpose of equitable distribution of coconut husks at fair prices. [102 C H] (5) The Government took notice of section 38 of the Defence of India Act and was satisfied about the public interest. Further, the notification does not interfere with the avocations and enjoyment of property any more than is necessary for the purposes of equitable distribution of husks at fair prices 'to the traditional sector. [103 A B] (6) The classification, in the circumstances, of the districts. is reasonable and bears a nexus to the objects sought to be achieved by the impugned notification. [103 D] (7) The Defence of India Act has been passed by Parliament and the Rules under the Act have legislative sanction. The restrictions imposed by them are in the interest of general public and are authorised under Article 302, Therefore, there is no violation of article 301. [103E G] Sadhu Singh vs Delhi Administration ; , Rohtas Industries vs section D. Agarwala ; , and Liversidge v Anderson ; , 228 229, referred to. ARGUMENTS For the appellants : The Notification Annexure A, is justiciable. The court is not deprived of jurisdiction to examine the validity of the order. The grounds mentioned in Annexure A notification are irrelevant and there is no real and proximate connection between the ground given and the object which the Government has in view. The State Government never applied its mind to the matter and the Notification is malafide in the sense that the statutory power has been exercised for some indirect purpose not connected with the object of the statute or the mischief it seeks to remedy. (1) Jaichand Lall Sethia vs State of Bengal [1966] Suppl. S.C.R. 464. 95 It is open to court to enquire whether grounds really existed which would have created that satisfaction on which alone the order could have been made in the mind of a reasonable person. Though the satisfaction of the Government is subjective and its power is discretionary its exercise depends upon the honest formation of an opinion that in order to secure equitable distribution and availability at fair prices of husks for use for production of fibre in the traditional sector it is necessary to ban production of fibre by machines. The existence of these circumstances is a condition precedent and must be demonstrable. It is therefore open to the Court to examine the existence of such circumstances. The Barium Chemicals Ltd. vs The Company Law Board , 357, Rhotas Industries Ltd. vs section D. Agarwala ; Rose Clutnis vs Papddo Poullous , Ridge vs Baldwin , 73. There has been no application of the mind to all the relevant factors justifying total ban being imposed with reference to reliable data and materials in issuing the Notification and therefore the action is mala fide. The action is not an action which is genuinely intended to implement the intention of the Defence of India Act or the rules and is not based on any enquiry or investigation or data made available to the Govt. before such action was taken. Nor was it made after any consultation or after reference to materials published by expert bodies like the State Planning Commission, the Coir Board, the Coir Advisory Committee appointed from time to time, nor based upon literature of a reliable nature published by such bodies aforesaid. That being so, the notification is ultra vires the Defence of India Act and the rules and for a purpose extraneous to the intention of the Defence of India Act. The purpose for which the notification has been issued is served by the Coconut Husks Control Order, dated 29 9 1973 and the notifications issued under the Order. The above Order was issued by the Central Government in exercise of the powers conferred by section 3 of the Essential Commodities Act, Act (10 of 1953). Two Notifications fixing the fair prices of the retted coconut husks were issued by the special officer for coir (Licensing Officer) constituted under cl. 4 of the Kerala Coconut Husks Control Order 1973. There is no material before the Government to conclude that the price of coconut husks increased only because of mechanisation. On the basis of section 38, Defence of India Act, the notification is beyond the needs of the situation. It is obligatory on the Government to have examined the several alternative remedies to make available husks to the traditional sector without banning manufacture of fibre by machines. The notification contravenes article 301 of the Constitution which guarantees that trade, commerce and inter course throughout the territory of India shall be free. District Collector of Hyderabad vs M/s. Ibrahim & Co. Article 301 guarantees freedom of trade not only from geographical barriers but also from restrictions imposed on an individual to carry on trade or business, other than a regulatory measure. ; (233). It is not open to the Parliament to delegate the power under article 302. The law passed under article 302 has to be in the interest of the public. There is nothing in the Defence of India Act to indicate that Parliament has imposed restrictions in the interest of public within the meaning of the Article. If there is no provision in the Act, the power under article 302 cannot be delegated by rules to the Central Government or the State Government. 96 VII. The Notification banning the machinery of defibering husks is violative of the fundamental rights of the petitioners under article 14. It is highly discriminatory as its operation is confined to the 3 districts of Trivandrum, Quilon and Alleppey. Owners of defibering machinery in other Districts are all similarly situated like the petitioners. For the respondent : (1) Ext. P. 1 order being issued in exercise of power conferred by law made by Parliament i.e. Defence of India Act 1971 & Defence of India 1971 there can be no violation or infringement of Fundamental Rights and other Constitutional rights. As a measure of emergency legislation "the words in the opinion of" in Rule 114(2) should be given the same width of meaning as in "satisfied" in Rule 30 Defence of India Rules 1962 as expounded by this Hon 'ble Court in decisions namely. , 469 470. , 718, 719, 740. These decisions show that the Courts are only entitled to look into the matter which if in terms of the Rule, then Court is bound to stay its hands and that the recital will be accepted in the absence of any inaccuracy. It is open to the Court to satisfy itself, as to the accuracy of the recital only if the order suffers from any lacunas. The meaning given to the expression, "the reason to believe" are in the sentence as explained above in the context of emergency although the meaning given to these expressions will be in the sense ruled by this Court in Bariunam, Chemicals case and Rohtas Industries case when these expressions occur in peaceful legislations. For the Construction of these words in the context of emergency see ; , 718. ; , 132. ; , 122. ; , 128. , 247. ; , 239, 251 252, 253, 256 257, 263, 239. wade and Phiulip Constitutional Law, 1970 pp. 631, 632. Smith Judicial Control and Administrative Action PP. 275, 276. Waynes Legislative Executive and Judicial Powers 1970 4th Edn p. 213. Halsbury 's Laws of England 4th Edn. Vol I, p. 23. ; , 73. , 34 (e to g). , 967 968 (h to a) at 970 (J) P. 972 (h) p. 973 982 (g h) P. 983 (a). Assuming that the ratio of Barium Chemicals Case and of Rohtas Case ; is applicable to the notification it is submitted the materials furnished in paras 4 to 9 of the Counter affidavit are sufficient to sustain it. The machines consume enormous quantity of coconut husks starving out the traditional section. The owners of machinery are able to corner large quantity of husk at exorbitant pi ices to the detriment of traditional sector because of the large saving in wages resulting from the displacement of labour by mechanisation. Due Compliance of section 38 is to be presumed. ; ; , 132.

The respondent was assessed to income tax for assessment year 1960 61 under section 23(3) of the, Income Tax Act, 1922 and for the assessment years 1961 62 and 1962 63 under section 143(3) of the income Tax Act, 1961. The validity of the notices issued under section 147(a) read with section 148 of the Act of 1961 in respect of these three assessment years was challenged by the respondent under Act 226. Though the notices did not disclose any material to justify their issue, the Income Tax Officer in his return before the High Court stated that during the course of assessment for the year 1963 64 of the wife of the respondent, she contended having received valu able assets from the respondent between 11th December 1955 and 28th October, 1960 without adequate consideration in money or money 's worth. The income from the said assets which should have been included in the return of the re spondent was not so included by him and that the capital gains arisen therefrom was also not included or disclosed by the respondent In his returns. A Learned Single Judge relying upon the decision of the Supreme Court in V.D.M. RM. M. RM. Mathiah Chettiar vs Commissioner of Income tax, Madras quashed the notices. The appeal of the Revenue failed before the Divi sion Bench. ' Dismissing the appeal, HELD: By failure of the assessee to include the share income of his wife and minor child in his return, it cannot be deemed that he has failed to disclose fully and truly all material facts necessary for the assessment within the meaning of section 34(1)(a) of the Indian Income Tax Act. [1107B] V.D.M. RM. M. RM. Muthiah Chettiar vs Commissioner of Income tax, Madras, ; Malegaon Electricity Co. (P) Ltd. vs 1103 Commissioner of Income tax, Bombay, and Commis sioner of Income tax, Kerala vs Smt. P.K. Kochammu Amma, Peroke, , followed.

Under section 6 of the Bihar Sales Tax Act, 1947, the Government issued a notification exempting certain goods from the 499 payment of sales tax, including "green vegetables other than potatoes, except when sold in sealed containers". The appellant who was a producer of sugar can was assessed to sales tax. He contended that sugar cane was a green vegetables and was exempted from tax and that he was not a dealer as defined in section 2 (c) of the Act and could not be assessed to sales tax. ^ Held, that sugar cane was not a green vegetable and was not exempted under the notification. The word "vegetables" in taxing statutes was to be understood as in common parlance i.e. denoting class of vegetables which were grown in a kitchen garden or in a farm and were used for the table. The dictionaries defined sugar cane as a "grass." Ramavtar Budhaiprasad vs Assistant Sales Tax Officer, Akola, ; , followed. The State of Bombay vs R. section Phadtare, [1956] 7 section T. C. 495, disapproved. Held, further, that the appellant was a dealer within the definition in section 2(c). Section 2(c) was amended by the Bihar Annual Finance Act, 1950. The amended was not a temporary amendment for only one year; the amended section was applicable to the present case. The amending Act did not require the assent of the President as the matter fell entirely within entry 54 of the State List.

In respect of a dispute between the appellant company and the respondent company which was referred to the arbitration of the Bengal Chamber of Commerce in terms of the arbitration clause contained in the contract entered into on April 6, 1951, an award was made on February 29, 1952, allowing the claim of the appellant. The respondent made an application in the High Court for having the award set aside on the ground, inter alia, that the contract was void under the provisions of the Raw jute (Central jute Board and Miscellaneous Provisions) Act, 1951, inasmuch as it had not been entered into in the manner specified in sections 5, 6 and 7 of the Act as required therein. On December 14, 1950, the Government of West Bengal had promulgated an Ordinance called the Raw jute (Central jute Board and Miscellaneous Provisions) Ordinance, 1950, for the better regulation of the trade, and on December 29,1950, a notification was issued specifying December 30, 1950, as " the appointed day for the purposes of sections 5, 6 and 7 Of the said Ordinance." Subsequently the Ordinance was replaced by the Act which by section 16, provided:. . . any notification issued. . under the Raw Jute (Central jute Board and Miscellaneons Provisions) Ordinance, 1950, shall, on the said Ordinance ceasing to operate, be deemed to have been issued under this Act as if this Act had commenced on the 14th day of December 1950. " It was contended for the appellant that the notification dated December 29, 1950, could not be read as having brought sections 5, 6 and 7 Of the Act into force, because, on a plain reading of it, the notification did not purport to bring any of the sections of the Act into force, but expressly brought sections 5, 6 and 7 of the Ordinance into force and that the said sections of the Act not having been brought into force, the contract in question was valid and, consequently, the award was binding and enforceable. Held, that in order to give full effect to the two legal fictions created in section 16 of the Act that the Act shall be deemed to have commenced on December 14, 195o, and that the notification issued under the Ordinance shall be deemed to have 80 been issued under the Act, the principle of mutatis mutandis has to be adopted and the word " Act " substituted for the word " Ordinance " used in the notification dated December 29, 1950. Consequently, the provisions of sections 5, 6 and 7 Of the Act were applicable to the contract in question.

These Writ Petitions, filed in this Court by Public Limited Companies growing, manufacturing and selling tea in the States of West Bengal and Kerala raised common questions of law. The Writ Petitions relating to the State of West Bengal challenged the constitutional validity of sections 3 and 5 of the Bengal Agricultural Income tax (Amendment) Act, 1980, whereby sub section (2) and (2A) of section 8 of the Bengal Agricultural Income tax Act, 1944 were omitted and always deemed to be omitted. The petitioners alleged that as a result of the omission of the said Sub sections (2) and (2A) of section 8, the State Legislature had sought to assume the power, competence and jurisdiction to impose agricultural income tax on the entire income from the sale of tea grown and manufactured by a seller and had thereby transgressed the constitutional limitations contained in Article 246(3) of the Constitution of India. The petitioners contended that the income derived from the sale of tea grown and manufactured by them was derived partly from agriculture and partly from manufacture by elaborate processes through valuable machinery. Prior to the said amendment Act, the position was that the income of an assessee who grew, manufactured and sold tea in West Bengal, was computed under the Indian Income tax Act, 1922 (the Act of 1922) read with the Income tax Rules, 1922, and agricultural income tax was levied only in respect of 60 per cent of that income. After the coming into force of the Income tax Act, 1961 and the Income tax Rules, 1962 also a State Legislature 962 could only legislate in respect of 60 per cent of the income, treated as agricultural income. The object of the impugned amendment Act, was to subject to the levy of agricultural income tax, the entire income derived by an assessee from the sale of tea grown and manufactured by him. The writ petition relating to Kerala State challenged the amendment made by the Agricultural Income tax (Amendment) Act, 1980 (Kerala Act No. 17 of 1980) deleting the Explanation after clause (2) of section 2(a) of the Agricultural Income tax Act, 1950, with a view to making the entire income from sale of tea earned by an assessee who grew and manufactured tea in that State subject to the levy of agricultural income tax. The petitioners urged that these amendments, in so far as they purported to confer power on the respective legislatures of the States of West Bengal and Kerala to legislate regarding taxes on the income from the sale of tea grown and manufactured by the assessees in excess of 60 per cent of such income computed in the manner prescribed under the law relating to income tax were void and beyond the legislative competence of the legislatures of the States of West Bengal and Kerala in view of the provisions of Article 246 of the Constitution of India read with the entry 82 in List I and Entry 46 in the List II of the Seventh Schedule to the Constitution and the relevant provisions of the law relating to income tax. The respondents contended that Article 366(1) of the Constitution merely stated that the term "agricultural income" had the same meaning as given to it in the enactments relating to income tax and the definition of the said term in Act of 1922 and the Act of 1961 did not prescribe that only a particular part of the income derived by an assessee from the sale of tea grown and manufactured by him could be regarded as agricultural income, and it was open to the State Legislatures concerned to levy agricultural income tax on such entire income. Disposing of the petitions, the Court, ^ HELD: The main question to be considered was whether the impugned provisions in the Bengal Amendment Act of 1980 were in excess of the legislative competence of West Bengal State Legislature, and whether by deletion of the Explanation effected by the Kerala Amendment Act of 1980, the definition of the term "agricultural income" in sub section (a) of Section 2 of the Kerala Agricultural Income tax Act 963 became void as in excess of the legislative competence of the State Legislature. [978D E] A perusal of Entry 82 of the List I in the Seventh Schedule and Entry 46 in the List II makes it clear that the Legislatures of the States of West Bengal and Kerala can pass laws imposing taxes only in respect of agricultural income, and in respect of income other than the agricultural income, it is only the Parliament which has the power to legislate in respect of taxes on such income. Sub article (1) of Article 366 of the Constitution states that "agricultural income" means such income as is defined as "agricultural income" for the purposes of the enactments relating to Indian income tax. It is significant that the words used are not "as defined by the enactments relating Indian Income tax" but are "as defined for the purposes of the enactments relating to Indian Income tax"(emphasis supplied).[978F G] Although the Explanation has been deleted from clause (2) of Sub section (a) of Section 2 of the Kerala Agricultural Income tax Act, and in spite of the amendments carried out by the Amendment Act of 1979 and the Amendment Act 1980 in the case of the West Bengal Agricultural Income tax Act, an Agricultural Income Tax Officer acting under the Kerala Agricultural Income tax Act or the Bengal Agricultural Income tax Act has no power to levy agricultural income tax except in respect of 60 per cent of the income derived by an assessee from the sale of tea grown and manufactured by him and computed in the manner leid down under the relevant Income tax Act and the rules framed thereunder. [984B C] The decision of this Court in Commissioner of Sales Tax, Lucknow vs D.S. Bist, [1979] 44 S.T.C. 392, relied upon by the State of Kerala and the State of West Bengal was of no assistance to them as the ratio of that decision had no application to present cases. [986A] Article 366(1) of the Constitution provides that the term "agricultural income" has the same meaning as attributed to it for the purposes of enactments relating to Indian income tax, and Rule 8 of the Income tax Rules, 1962 as well as Rule 24 of the Income tax Rules 1922, pertain to and are bound up with the definition of the term "agricultural income" for the purposes of laws or enactments pertaining to Indian Income tax and the provisions of those rules have to be taken into account in considering the meaning of the term "agricultural income" under sub article (1) of Article 366 of the Constitution. [987B D] 964 Clause (b) of sub section (2) of Section 295 of the Income tax Act, 1961 specifically confers power on the rule making authority to make rules relating to the manner in which and the procedure by which income for the purposes of the Act of 1961 would be arrived at in the case of income derived in part from agriculture and in part from business and Rule 8 clearly provides for the manner in which computation of income for the purposes of the Act of 1961 is to be made in the case of income derived from the sale of tea grown and manufactured by a seller and it cannot be said that the said rule goes beyond the scope of the rule making power conferred under section 295, as contended by counsel for the two States. [987E F] Although the Explanation to Section 2(a) (2) of the Kerala Agricultural Income tax Act has been deleted by the Amendment Act of 1980, the result would still be the same that the Kerala State Legislature can impose tax only in respect of 60 per cent of the income derived by an assessee who sells tea grown and manufactured by him in India and such income has to be computed in the manner laid down in the Act of 1922 and thereafter in the Act of 1961 for computation of the business income. The same is the position in respect of the powers of the legislature of the State of West Bengal in spite of the amendments made by the legislature by the Amendment Act of 1980 and earlier under the amending Act of 1979 which was in force for one year. It is not necessary to strike down the said amendments because they do not directly conflict with the definition of the term "agricultural income" under the Constitution, but they do not confer any wider power on the State Legislature to impose taxes on the agricultural income then what is stated earlier. [987G H;988A B] The validity of the amendments to the Bengal Agricultural Income tax Act made in 1980 and the deletion of the Explanation in Section 2(a)(2) of the Kerala Agricultural Income tax Act were challenged as being ultra vires and invalid in law on several other grounds but the Court did not go into those grounds in view of what it held as set out above. [988C D] Although none of the prayers in the petitions was granted in terms, the petitioners substantially succeeded in the petitions.[988E] Karimtharuvi Tea Estates Ltd. & Anr. vs State of Kerala Trading Co. Ltd. etc. vs Commissioner of Agricultural Income tax, Kerala, ; State of Tamil Nadu vs Kannan Devan Hills Produce Co. Ltd., 965 ; Tea Estate India P. Ltd. vs Commissioner of Income tax, West Bengal II, ; Commissioner of Income tax, Madras vs R.M. Chidambaram Pillai etc. , ; Commissioner of Sales Tax, Lucknow vs D.S. Bist & Ors., [1979] 44 S.T.C. 392; and High Land Produces Co. Ltd. & Anr. etc. vs Inspecting Asstt. Commr. of Agricultural Income tax & Sales Tax (Special), Kottayam and Ors. , [1984] 148 I.T.R. 746, referred to.

The respondent sued the State of Bihar for a declaration that the Bihar Land Reforms Act, 1950, was ultra vires, void and unconstitutional and for a permanent injunction restraining the State and its officers or agents from issuing any notification thereunder in respect of her estate or taking possession thereof and on a petition filed along with the plaint obtained an order of temporary injunction against the State in terms of her prayer, pending the hearing of the suit. More than a year thereafter, the State made an application under 0. 39, r. 4 of the Code for a discharge of the order of temporary injunction on the ground that the impugned Act had in another case been declarer valid by the Supreme Court. Before that application could, however, be heard, the State of Bihar, on May 19, 1952 issued a notification under section 3(1) of the Act, authenticated by the Additional Secretary to the Government, declaring that, amongst others, the respondent 's estate had vested in the State of Bihar under the provisions of the Act. Thereupon the respondent moved the trial Court for taking action against the State under 0. 39, r. 2(3) of the Code. The contention on behalf of the State was that in view of article 31 B of the Constitution the issue of the notification was lawful and could not constitute contempt of Court. The Subordinate judge held that this was no defence to the application by the respondent and directed attachment of the appellant 's property to the value of Rs. 5,000 and the High Court on appeal affirmed that decision. Held, that the courts below took the correct view of the matter and that the appeal must be dismissed. The procedure laid down by 0. 39, r. 2(3) of the Code of Civil Procedure is remedial and essentially one for the enforcement or execution of an order of temporary injunction passed under 0. 39, r. 2(1) and is available against the State although the provision for detention may not apply to it. It is wrong to say that it is either contrary to article 300 of the Constitution or hit by the rule that no action lies against the State in tort or for a wrong doing entailing punishment or compensation. District Board of Bhagalpur vs Province of Bihar, A.I.R. 1954 729 Pat. 529 and Tarafatullah vs section N. Maitra, A.I.R. 1952 Cal. gig, distinguished. There is also no basis for the contention that the State is not expressly or by necessary implication mentioned in 0. 39, r. 2(3). The word 'person ' used by it, properly construed, includes the defendant against whom the order of injunction is primarily issued as also the defendant 's agents, servants and workmen. Since the court 's power to issue an order of temporary injunction against the State under 0. 39, r. 2(1) cannot be in doubt, disobedience of such an order when issued necessarily attracts 0. 39, r. 2(3) of the Code. Director of Rationing & Distribution vs Corporation of Calcutta, ; , held inapplicable. Held, further, that when once an order is passed which the Court has jurisdiction to pass, it is the duty of the State no less than any private party to obey it so long as it stands, and the conduct of the State Government in the instant case in issuing the notification at a time when its application for vacating the injunction was still pending and the attitude taken up by it after the application under 0. 39, r. 2(3) was made and persisted in till the end must be disapproved.

The appellant effected sales during the period 26 1 1950 to 31 3 1950, whereunder the property in the goods passed in the State of Bihar but delivery was effected outside Bihar for consumption outside Bihar. In some of these sales the goods were delivered in the State of first destination for consumption therein whilst in other cases the goods were not for consumption in the State of first delivery of destination. The appellant contended that both these categories of sale were exempt from tax under article 286(1)(a) as they were outside sales. Held (per Hidayatullah, Das Gupta and Rajagopala Ayyangar, JJ.) that the sales where delivery in the State of first destination was for consumption therein, were outside the State of Bihar within the Explanation to article 286(1)(a) and Bihar could not tax them, but the sales where delivery in the State of first destination was not for consumption therein were not " Explanation Sales " and were not " outside " sales and Bihar could tax them. Where the property in the goods passed within the State as a direct result of the sale the sale was not an " outside " sale for the purpose of article 286(1)(a) unless it fell within the Explanation. In the first category of sales the appellant was entitled to the. exemption and it was not necessary for it to prove that the goods delivered for consumption in the State of first destination were actually consumed therein. The State of Bombay vs United Motors (India) Ltd., and Bengal Immunity Company Ltd. vs The State of Bihar, , referred to. Burmah Shell Oil Storage & Distributing Co. of India Ltd. vs The Commercial Tax Officer, C. A. No. 751 of 57 and C. A. No. 10 of 1958 (Unreported), relied on. Per section K. Das and Shah, Jj. Section 33 introduced in the Bihar Sales Tax Act by the Adaptation of Laws Order, 1951, engrafted the same restrictions on the taxing power of the State on the pre Constitution statutes as were imposed by article 286 upon post Constitution statutes. Section 33(1)(a)(1) of the Act took away only the power to tax " Explanation Sales " but not the power to tax " non Explanation Sales ". A sale in which goods had been delivered outside Bihar, but not as a direct result of 277 the sale or not for the purpose of consumption in the State of first delivery was not covered by the Explanation, and the right to tax the sale, if it arose otherwise under the Act, was not impaired by section 33(1)(a)(i).

Appeal No. 419 of 1957. Appeal by certificate from the judgment and decree dated January 16, 1953, of the Madras High Court in A. section No. 164 of 1949. M. section K. Sastri, for the appellants. Ravindra Narain, for the respondents. April 14. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by certificate, is directed against the judgment of the High Court of Judicature at Madras dated January 16, 1953, modifying the decree of the Court of the Subordinate Judge, Dindigul, in 0. section No. 7 of 1948, a suit filed by the respondents for compensation under the provisions of the (XIII of 1855). The appellant, Gobald Motor Service Ltd. (hereinafter called the Company), was engaged in the business of transporting passengers by bus between Dharapuram and Palni, among other places, in the State of Madras. On September 20, 1947, one of the buses of the Company, bearing registration number MDC 2414, left Dharapuram for Palni at about 3 p.m. At a place called Thumbalapatti between Dharapuram and Palni, one Rajaratnam, along with his brother by name Krishnan, boarded the bus. The bus met with an accident at about 3 miles from Palni, as a result of which some of the passengers, including Rajaratnam, sustained injuries. Rajaratnam died of 932 the injuries received in the accident on September 23, 1947. The first plaintiff, his father; the second plaintiff, his widow; and plaintiffs 3 to 7, his sons, instituted 0. section No. 7 of 1948 against the Company in the Court of the Subordinate Judge, Dindigul, for compensation under section 1 of the (hereinafter called the Act) for loss of pecuniary benefit sustained by them personally, and under section 2 thereof for the loss sustained by the estate on account of the death of Rajaratnam. They alleged in the plaint that the driver, who was in charge of the bus, was incompetent and inexperienced, that he was guilty of rash and negligent conduct in the driving of the bus, and that the accident was the result of his incompetence and negligence. The Company in its written statement denied the said allegations and leaded that the accident was the result of the central plea of the left rear spring suddenly giving way, that Rajaratnam was also guilty of contributory negligence and that in any event the damages claimed were excessive. The learned Subordinate Judge came to the conclusion that there was no proof that the bus was driven at a reckless speed at the scene of the accident, but the fact that the accident occurred on the off side of the road was itself evidence of his negligence and it had not been rebutted by the defendants. He further held that the driver was not proved to be incompetent. On those findings, he held that the defendants were liable for the negligence of their servant, and be awarded damages as follows: (1)Plaintiff 1 . Rs. 3,600 under section 1 of the Act. (2) Plaintiffs 2 to 7. Rs. 25,200 under section 1 of the Act. (3) Plaintiffs 2 to 7. Rs. 6,000 under section 2 of the Act. Against the said decree, the defendants preferred an appeal to the High Court and it came to be disposed of by a division bench of that court. The High Court on a review of the entire evidence held that the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened, that there was negligence on the part of the 933 driver, and that the appellants were liable therefore. But the High Court discounted the plea that the appellants, apart from their being constructively liable for the negligence of the driver, were also negligent in employing Joseph, who was not a competent driver. Both the courts, therefore, concurrently held that the accident occurred on account of the negligence of the driver. On the question of damages, the High Court confirmed the amount of compensation awarded to the plaintiffs 2 to 7 both under sections 1 and 2 of the Act, but in regard to the first plaintiff, it reduced the compensation awarded to him from Rs. 3,600 to Rs. 1,000; with this modification, the appeal was dismissed with costs. Learned counsel for the appellants raised before us the following points: (1) The finding of the High Court that the bus was driven at an excessive speed at the place where the accident occurred, based on probabilities, was erroneous. (2) The concurrent finding of the two courts that respondents 2 to 7 would be entitled to damages in a sum of Rs. 25,200 for the loss of pecuniary advantage to them was not based upon any acceptable evidence but only on surmises. (3) The High Court went wrong in awarding damages separately for loss of expectation of life under section 2 of the Act, as damages under that head had already been taken into consideration in giving compensation to respondents 2 to 7 for the pecuniary loss sustained by them by the death of Rajaratnam. The first question for consideration is whether the accident was due to any negligence on the part of the driver Joseph. A clear picture of the topography and the physical condition of the locality where the accident took place would, to a large extent, help us in deciding the said question. The accident took place at Puliampatti where the road passed over a culvert and then took a sharp bend with a downward gradient. To the east of the road was a drain and that was marked off by 5 stones 2 feet high. At a distance of 20 or 25 feet from the stones, there were trees. The bus after crossing the culvert crashed against the 5th stone with so much force that the latter 934 was uprooted and broken. It next attacked a tamarind tree which was stated to be at a distance of 20 or 25 feet from the stone, and its bark was peeled off and it travelled some more distance before it finally came to rest. The evidence disclosed that some of the passengers were knocked and thrown down within the bus itself and sustained injuries, while Rajaratnam was thrown out of the bus into the ditch at a place 161 feet south of the tamarind tree. It must be self evident from the said picture of the accident that the bus must have been driven at a high speed. P.Ws. 3 and 4, two of the passengers in the bus, P.W. 6, a brother of Rajaratnam, who also travelled in the bus, and P.W. 5, who ran a coffee and tea stall at the place of the accident, swore in the witness box that the bus was being driven at a high speed when the accident happened. Their evidence reinforces the compelling impression of high speed caused by the objective features thrown out by the topography of the place of the accident. On the other hand, on the side of the defendants (appellants herein) D. W. 2, who claimed to have travelled in the bus, deposed that the bus was travel ling at the usual speed, but his cross examination discloses that he was an improvised witness. D.W. 3, who was sitting by the side of the driver, deposed to the same effect, but he was an employee of the Company and was obviously interested to support their case. The evidence adduced on the side of the defence is certainly not convincing. An attempt was made to calculate the speed of the bus on the basis of the time given by P. W. 6 as to when Rajaratnam boarded the bus and the time when the bus dashed against the tree, and the mileage covered between the two points within the said time. On the basis of such a calculation it was contended that the speed would have been less than 15 miles per hour; but it is not possible to deduce the speed from such a calculation, as the witnesses were speaking of the time only approximately and not with reference to any watch. That apart, it cannot be said that the bus maintained an even pace throughout. The High Court, on the basis of the evidence and on broad probabilities, held that 935 the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened; and having gone through the evidence, we are quite satisfied that the said finding was justified on the material placed before them. It must, therefore, be held that there was negligence on the part of the driver. Apart from the positive evidence, in the present case the accident took place not on the main road, but on the off side uprooting the stone at the drain and attacking a tamarind tree 25 feet away from the said stone with such a velocity that its bark was peeled off and the bus could stop only after travelling some more distance from the said tree. The said facts give rise to a presumption that the accident was caused by the negligence of the driver. Asquith, L. J., in Barkway vs South Wales Transport Co. (1) neatly summarizes the principles applicable as to onus of proof in the following short propositions: "(i) If the defendants ' omnibus leaves the road and falls down an embankment, and this without more is proved, then the res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this pre sumption. (ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyre burst, since a tyre burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants. When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down. This is the effect of the decision in Laurie vs Raglan Building Company Ltd., (2), where not a tyre burst but a skid was involved. (iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its (1) , 471. (2) 936 absence as more probable, or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres. " The same principles have been restated in Halsbury 's Laws of England, 2nd Edn., Vol. 23, at p. 671, para 956, thus: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant 's negligence, or where the event charged as negligence tells its own story ' of negligence on the part of the defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part. Where, therefore, there is a duty on the defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course of events ensue, the burden is in the first instance on the defendant to disprove his liability. In such a case, if the injurious agency itself and the surrounding circumstances are all entirely within the defendant 's control, the inference is that the defendant is liable, and this inference is strengthened if the injurious agency is inanimate. " The said principles directly apply to the present case. Here, the events happened tell their own story and there is a presumption that the accident was caused by negligence on the part of the appellants. But it is ,said that this presumption was rebutted by proof that the accident was due to the rear central bolt of the bus 937 suddenly giving way. The High Court, after considering the relevant evidence, held that it was not possible to hold that the accident was caused by the break in the bolt. We have gone through the evidence and we do not see any flaw in that conclusion. The scope of the liability of a master for the negligence of his servant has been succinctly stated by Baron Parke in Joel vs Morison (1) thus: 'The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master 's implied commands, when driving on his master 's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master 's business, the master will not be liable. " Again, in Storey vs Ashton (2) Cockburn, L.C.J., says: "The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant. " In the same case, Lush, J., said: "The question in all such cases as the present is whether the servant was doing that which the master employed him to do." In the present case, admittedly, on account of the negligence of the driver in the course of his employment the said accident happened, and, therefore, the appellants are liable therefore. The next question is whether the courts below were right in awarding compensation of Rs. 25,200 for the pecuniary loss unstained by the respondents 2 to 7 by reason of the death of Rajaratnam, under section 1 of the Act. Section 1 of the Act reads: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had (1) (1834) 6 Car. & P. 501 ; 172 E.R. 1338. (2) 118 938 not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducing all costs and expenses, including the costs not recovered from the Defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct." This section is in substance a reproduction of the English Fatal Accidents Acts, 9 and 10 Vict. 93, known as the Lord Campbell 's Acts. The scope of the corresponding provisions of the English Fatal Accidents Acts has been discussed by the House of Lords in Davies vs Powell Duffryn Associated Collieries Ltd.(1). There, Lord Russell of Killowen stated the general rule at p. 606 thus: "The general rule which has always prevailed in regard to the assessment of damages under the, Fatal Accidents Acts is well settled, namely, that any benefit accruing to a dependent by reason of the relevant death must be taken into account. Under those Acts the balance of loss and gain to a dependent by the death must be ascertained, the position of each dependent being considered separately." Lord Wright elaborated the theme further thus at p. 611: "The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible (1) 939 to money value. In assessing the damages all circumstances which may be legitimately Pleaded in diminution of the damages must be considered. The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one band, the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death. " The same principle was restated with force and clarity by Viscount Simon in Nance vs British Columbia Electric Railway Company Ltd. (1). There, the learned Lord was considering the analogous provisions of the British Columbia legislation, and he put the principle thus at p. 614: "The claim for damages in the present case falls under two separate heads. First, if the deceased had not been killed, but had eked ou t the full span of life to which in the absence of the accident he could reasonably have looked forward, what sums during that period would he probably have applied out of his income to the maintenance of his wife and family?" Viscount Simon then proceeded to lay down the mode of estimating the damages under the first head. According to him, at first the deceased man 's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents; secondly, the amount required for the future pro vision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man 's estimated span of life. , and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further amounts have to be deducted for the possibility of the (1) 940 wife dying earlier if the husband had lived the full span of life; and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that many imponderable enter into the calculation. Therefore, the actual extent of the pecuniary loss to the respondents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascer tained. The burden is certainly on the plaintiffs to establish the extent of their loss. Both the courts below found, on the evidence the following facts: (1) The family owned a building worth Rs. 2,00,000 at Palni, and 120 acres of nanja land worth about Rs. 1,000 per acre. (2) It was engaged in the business of manufacturing Indian patent medicines from drugs and had been running a Siddha Vaidyasalai at Palni for a period of 30 years and had also branches in Colombo and Madras. (3) Rajaratnam studied in the Indian School of Medicine for two years and thereafter set up his own practice as a doctor, having registered himself as a practitioner in 1940. (4) He took over the management of the family Vaidyasalai at Palni. (5) Rajaratnam was earning in addition Rs. 200 to Rs. 250 per month in his private practice. (6) He had a status in life, being Municipal Councillor of Palni and sometimes its Vice Chairman, and was maintaining a fairly good standard of life and owned motor cars. (7) He was aged 34 years at the time of his death and, therefore had a reasonably long span of life before him, if the accident had not taken place. On the said findings, the High Court summarized the position thus: 941 age 34 carrying on business as a Doctor, with reasonable prospects of improving in his business. He was living in comfort and by his early death plaintiff, , 2 to 7 have lost their prospects of education, position in society and even possible provision in their favour. Under the circumstances, the award of Rs. 25,000 as damages must be accepted as quite reasonable. " When the courts below have, on relevant material placed before them, ascertained the said amount as damages under the first head, we cannot in second appeal disturb the said finding except for compelling reasons. Assuming that Rajaratnam had not died, he would have spent, having regard to his means and status in life, a minimum of Rs. 250 on respondents 2 to 7; and his income, as indicated by the evidence, would certainly be more than that amount. The yearly expenditure he had to incur on the members of the family would have been about Rs. 3,000 and the sum of Rs. 25,200 would represent the said expenditure for just over 8 years. In the circumstances, the balance of loss and gain to the dependents by, the death of Rajaratnam, in the sense stated by Lord Wright and Viscount Simon, could not be less than Rs. 25,200; indeed, having regard to the circumstances of the case, it is a moderate sum; it is rather a conservative estimate. We, therefore, accept that figure as representing the damages for respondents 2 to 7 in respect of their claim under the head of pecuniary loss to them by the death of Rajaratnam. The last, contention raises an interesting point. Under section 2 of the Act the respondents 2 to 7 were awarded Rs. 5,000 as damages for loss of expectation of life. It was contended that this amount should go in reduction of Rs. 25,200 awarded under section 1 of the Act on the ground that otherwise it would be duplication of damages in respect of the same wrong. The second proviso to section 2 of the Act reads: "Provided that in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any 942 pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased." While section 1 of the Act is in substance a reproduction of the English Fatal Accidents Acts, 9 & 10 Vict. 93, known as the Lord Campbell 's Acts, section 2 thereof corresponds to a provision enacted in England by the Law Reform (Miscellaneous Provision) Act, 1934. The cause of action under section 1 and that under section 2 are different. While under section 1 damages are recoverable for the benefit of the persons mentioned therein, under section 2 compensation goes to the benefit of the estate; whereas under section 1 damages are payable in respect of loss sustained by the persons mentioned therein, under section 2 damages can be claimed inter alia for loss of expectation of life. Though in some cases parties that are entitled to compensation under both the sections may happen to be the same persons, they need not necessarily be so; persons entitled to benefit under section 1 may be different, from those claiming under section 2. Prima facie as the two claims are to be based upon different causes of action, the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads. But a difficulty may arise where the party claiming compensation under both the heads is the same and the claims under both the heads synchronize in respect of a particular sub head or in respect of the entire head. In that situation, the question is whether a party would be entitled to recover damages twice over in respect of the same wrong. In England this question came under judicial scrutiny in Rose vs Ford (1). There the question was whether and to what extent deductions would have to be made in giving compensation both under the English Fatal Accidents Acts and the Law Reform (Miscellaneous Provision) Act, 1934. A young woman called Rose was killed in an accident. Her father sued for damages under both the Acts. It was contended that as he got damages for personal loss, he could not be (1) , 835. 943 awarded once again compensation for the loss of expectation of life. Though in that case it was held that the father was entitled under both the Acts, Lord Atkin made the following observations, which are appropriate to the present case: "I should add that I see no difficulty as to the alleged duplication of damages under the Act of 1934 and the Fatal Accidents Acts. If those who benefit under the last mentioned Acts also benefit under the will or intestacy of the deceased personally, the damages under those Acts will be affected. If they do not, there seems no reason why an increase in the deceased 's estate in which they take no share should ,affect the measure of damages to which they are entitled under the Act. " A similar question arose in Feay vs Barnwell There, Mrs. Feay was killed in an accident and her husband sued for damages under both the Acts. It was held that, as the husband was the claimant under both the Acts, credit should be given in assessing the damages under the Fatal Accidents Acts, for what was given to him under the Law Reform Act, 1934. So too, in Ellis vs Raine (2), where the parents of an infant, who had been negligently killed in an accident, claimed damages under both the Acts, Goddard, L. J., reaffirmed the view that where the parties who would benefit from the damages awarded under the Fatal Accidents Acts were the same as those who would benefit from the damages awarded under the Law Reform Act, the damages under the Fatal Accidents Acts must be reduced by the amount given as loss under the Law Reform Act. Finally the same view has been reaffirmed and restated with clarity in Davis vs Powell Duffryn Associated Collieries Ltd. (3). There Lord Macmillan described the nature of the two heads thus at p. 610: "The rights of action in the two cases are quite distinct and independent. Under the Law Reform Act the right of action is for the benefit of the deceased 's estate; under the Fatal Accidents Acts (1) (2) (3) 944 the right of action is for the benefit of the deceased 's dependents. But, inasmuch as the basis of both causes of action may be the same, namely, negligence of a third party which has caused the deceased 's death, it was natural to provide that the rights of action should be without prejudice the one to the other. It is quite a different thing to read the provision as meaning that in assessing damages payable to dependents under the Fatal Accidents Acts no account is to be taken of any benefit which the dependents may indirectly obtain from an award under the Law Reform Act through participation in the deceased 's estate. . . it is appro priate that any benefit taken indirectly by a dependent by way of participation in an award under the Law Reform Act should be taken into account in estimating the damages awarded to that dependent under the Fatal Accidents Acts." Lord Wright addressed himself to the same question and answered it at p. 614 thus: "The injury suffered by the individual from the death cannot be computed without reference to the benefit also accruing from the death to the same individual from whatever source. " The principle in its application to the Indian Act has been clearly and succinctly stated by a division bench of the Lahore High Court in Secretary of State vs Gokal Chand (1). In that case, Sir Shadi Lal, C. J., observed at p. 453 thus: "The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by th e members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caus ed to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate. " An illustration may clarify the position. X is the (1) Lahore 451. 945 income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependents (we will ignore the other expenditure incurred by him). X Y, i.e., Z, is the amount he saves every year. The capitalised value of the income spent on the dependents, subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are the same, and if they get compen sation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under section 1, representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under section 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under section 1 they got capitalised value of Y, under section 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income. The law on this branch of the subject may be briefly stated thus: The rights of action under sections 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under section 1 of the Act, that portion shall be excluded in giving compensation under section 2 and vice versa. In the instant case, under section 1 of the Act both the. courts gave compensation to plaintiffs 2 to 7 in a sum of Rs. 25,200. This sum was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them. 119 946 Under section 2 both the courts awarded damages for the loss to the estate in a sum of Rs. 5,000. That figure represents the damages for the mental agony, suffering and loss of expectation of life. There was no duplication in awarding, damages under both the heads. No material has been placed before us to enable us to take a different view in regard to the amount of compensation under section 2 of the Act. The judgment of the High Court is correct and the appeal fails and is dismissed with costs. Appeal dismissed.

A bus run by the appellant met with an accident as a result of which R died. R 's dependents and heirs e.g. the father, widow and sons, brought a suit for compensation under section 1 of the , for loss of pecuniary benefit sustained by them personally and under section 2 thereof for the loss sustained by the estate on account of the death of R. The, High Court found that the bus was driven at an excessive speed and there was negligence on the part of the driver and that the appellants were liable for the same. On the question of damages, it confirmed the amount of compensation of RS. 25,000 under section 1 of the Act for the loss of pecuniary advantage and of Rs. 6,000 under section 2 of the Act for loss of expectation of life. The questions for consideration were (1) whether the accident was due 117 930 to any negligence on the part of the driver; (2) whether the courts below were right in awarding compensation under section 1 of the Act for pecuniary loss sustained by the widow and the sons of the deceased; and (3) whether the sum awarded as damages under section 2 of the Act for loss of expectation of life should go towards the reduction of the compensation awarded for pecuniary loss sustained under section 1 of the Act, as otherwise it would be duplication of damages in respect of the same wrong. Held, that where on the basis of the evidence and on broad probabilities it is found that the speed at which the bus was driven was excessive having regard to the nature of the ground on which the accident happened, there is a presumption that the accident was caused by the negligence of the driver. As the driver was acting in the course of his employment, the master would be liable for such accident, unless the presumption is rebutted by the master. In the present case, on account of the negligence of the driver in the course of his employment the accident happened, and, therefore, the appellant was liable for the same. Barkway vs South Wales Transport Co. Ltd., [1948] 2 All E.R. 460, Joel vs Morison, (1834) 6 Car. & P. 501 and Storey vs Ashton, , applied. That the actual extent of the pecuniary loss to the aggriev ed party may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained. Davies vs Powell Duffryn Associated Collieries Ltd., and Nance vs British Columbia Electric Railway Company Ltd., , followed. Where the courts below have on relevant material placed before them ascertained the amount of damages under the head of pecuniary loss by the dependants of the deceased, such findings cannot be disturbed in second appeal except for compelling reason. Held, further, that the rights of action under sections 1 and 2 of the are quite distinct and independent. If a person taking benefit under both the sections was the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under section 1 of the Act, that portion shall be excluded in giving compensation under section 2 and vice versa. 931 in the instant case, under section 1 of the Act the sum of com pensation was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for his widow and sons. Under section 2 the figure for damages awarded for the loss to the estate represents the damages for the mental agony, suffering and loss of expectation of life; thus there was no duplication in awarding damages under both the heads. Rose vs Ford, , Feay vs Barnwell, , Ellis vs Raine, and Secretary of State V. Gokal Chand, Lah. 451, referred to.

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]

% These appeals and writ petitions involved two questions of law (i) whether Rule 41 A of the Karnataka Cinemas (Regulations) Rules (the Rules) framed by the State Government under section 19 of the Karnataka Cinemas Regulations Act of 1964 (the Act) had been made "for purposes of the Act", and (ii) whether Rule 41 A placed unreasonable restrictions on the appellants ' right to carry on their business of exhibiting cinematograph films, in violation of Article 19(1)(g) of the Constitution. The appellants/petitioners held licences for exhibiting cinematograph films in their cinema theatres under the Act and the Rules in Form prescribed by the Rules. Normally, the Cinema owners were holding four shows in a day, but later on, they increased the shows to five in a day starting from 10 a.m. and ending at 12 a.m. This caused a number of problems. The State Government in exercise of its powers under section 19 of the Act framed Rule 41 A directing that no licensee would exhibit more than four cinematograph shows in a day. The appellants challenged the validity of the Rule 41 A placing restrictions on their right to exhibit cinematograph films before the High Court by writ petitions. The appellants contended before the High Court that the restriction imposed by Rule 41 A on the licensees requiring them to exhibit more than four shows in a day was beyond the rule making power, as the Rule did not carry out the purposes of the Act, and that the Rule placed unreasonable restrictions on their fundamental right to carry on the business of exhibiting cinematograph films. There was difference of opinion between the two learned Judges constituting the Bench of the High Court, which heard the petitions. K.S. Puttaswamy, J. held infer alia that the impugned rule was ultra 512 vires as it was beyond the rule making power of the Government under section 19 of the Act, and that it placed unreasonable restrictions on the appellants ' right to carry on their business guaranteed under Article 19(1)(g) of the Constitution. Narayan Rai Kudoor, J. upheld the validity of the Rule, holding that the impugned Rule carried out the purposes of the Act, viz., the regulation of the exhibition of cinematograph films, and the restriction placed by it was reasonable. Since there was difference of opinion between the two learned Judges, the matter was placed before M. Rama Jois, J., who agreed with the opinion of N.R. Kudoor, J., holding that the State Government had the power to frame the Rule and the Rule did not place any unreasonable restriction on the appellants ' right to carry on business of exhibiting cinematograph films, and that it was not utlra vires the Act and did not violate appellants ' fundamental rights under Article 19 of the Constitution. Consequently, all the writ petitions were dismissed. Aggrieved by the decision of the High Court, the appellants filed appeals in this Court. Some of the aggrieved cinema owners filed writ petitions in this Court, challenging the validity of Rule 41 A. Dismissing the appeals and the writ petitions, the Court, ^ HELD: The question whether Rule 41 A was validly framed to carry out the purposes of the Act could be determined on the analysis of the provisions of Act. The title of the Act and the preamble clearly indicate that the main purpose of the Act is to regulate the exhibition of the cinematograph films in places in respect of which a licence for that purpose may be issued. The extent of control and regulation is evidenced by the provisions of the Act. The ultimate purpose of these provisions is to ensure safety and convenience of the general public visiting the licensed premises for witnessing the cinematograph films exhibited therein. [518D,H; 519A B; 520F] Section 19 of the Act confers power on the State Government to frame rules for carrying out the purposes of the Act. The preamble and the provisions of the Act provide for the regulation of the exhibition of the cinematograph films, which is the primary object of the Act. The Act confers wide powers on the State Government for the regulation of the exhibition of the cinematograph films which include power to regulate hours during which cinematograph films may be exhibited, the seating arrangements for the members of the public, and any other allied matters pertaining to public safety, health, sanitation and incidental matters. Rule 41 A which limits the numbers of shows in a day, regulates the exhibition of the cinematograph films and carries out the 513 purposes of the Act. It was, therefore, referable to the State Government 's general power under section 19(1) of the Act. Rule 41 A was further referable to clauses (a) and (d) of section 19(2) of the Act. Clause (a) confers power on the State Government to frame rules prescribing terms, conditions and restrictions subject to which a licence may be granted. The State Government may lay down conditions and impose restrictions prescribing hours during which the films might be exhibited and also the number of shows in the licensed premises. Clause (d) confers power on the State Government to frame rules regulating the exhibition of cinematograph films for the purpose of securing public safety. Any rule regulating the exhibition of the cinematograph films if reasonably connected with public safety would be justified under the said provision. Rule 41 A adds a condition to the licence that exhibition of films would be limited to four shows in a day. No licensee could claim to have unrestricted right to exhibit cinematograph films for all the 24 hours of the day. Such a claim would be against public interest. The restriction to limit the number of shows to four in a day placed by rule 41 A was regulatory in nature which clearly carried out purposes of the Act. [520G H;521A F] The provisions of the Act have laid down the policy for regulating the exhibition of the cinematograph films in the licensed premises and also for regulating the construction of the building, auditorium, galleries, balconies, projection rooms, seating accommodation and other allied matters related to public health and safety, etc., and all other matters relating to the exhibition of films. Validity of none of the other rules has been challenged by the appellants/petitioners although those provisions placed a number of restrictions on their right of exhibiting cinematograph films. The restrictions placed by Rule 41 A are similar to the restrictions already placed on their right to exhibit cinematograph films. It is incidental to the general power of regulating the exhibition of cinematograph films, and it is connected with the regulation of the exhibition of the cinematograph films.[522C D,H;523A] The question arises whether rule 41 A placed unreasonable restrictions on the appellants ' right to carry on business of exhibiting cinematograph films in violation of Article 19(1)(g) of the Constitution, The appellants/petitioners have not challenged the validity of the Act. Therefore, they claim no unrestricted right to exhibit cinematograph films. They have been carrying on the business exhibiting films under a licence in form which contained the terms and conditions prescribed by the Act and the Rules framed therunder. Rule 41 A added one more condition to it, requiring the licensee not to exhibit more than four 514 shows in a day. The freedom to practise any profession, or to carry on any occupation, trade or business, guaranteed by Article 19(1)(g), is not absolute, it is subject to clause (6) of Article 19, which permits imposition of reasonable restrictions by law, if it is necessary in the interest of the general public. Any law imposing reasonable restrictions on the exercise of the right guaranteed by Article 19(1)(g) would be valid if it is in the interest of the general public. Restriction contemplated in Article 19(6) may in certain circumstances extend to total prohibition, as held by this Court in Narender Kumar vs Union of India, ; The. material placed before the State Government as also this Court, clearly demonstrated the necessity for curtailing the holding of five shows to four to remove the public grievance, as the representation filed on behalf of the public highlighted the hazards to public safety and the inconvenience caused to the members of the public visiting the cinema halls. Rule 41 A was framed to meet the public need and to secure public safety by placing minimum possible restrictions on the licensees. The Court found no merit in the contentions of the appellants/petitioners that Rule 41 A was neither necessary nor reasonable as the purpose for which it was framed could have been achieved if the relevant authorities carried out their duties in making inspections and securing the compliance of the existing rules, and that the impugned Rule did not prescribe the duration of four shows or the intervals between them and each one of the reasons set out by the State to justify the impugned Rules, could be fully achieved by the enforcement of the existing Rules.[523B E;525A C] In holding five shows, the licensees did not exhibit approved documentaries and slides and adequate measures could not be taken to ensure public safety and health. The Court had no doubt that the existing Rules could not meet the situation and the State Government was justified in framing Rule 41 A placing limit on the appellants '/petitioners ' right to exhibit cinematograph films to four shows which was in the public interest. The appellants/petitioners had no unrestricted fundamental right to carry on business of exhibiting cinematograph films. Their right to carry on business was regulated by the provisions of the Act and the Rules framed thereunder. These provisions were necessary to ensure public safety. Public health and other allied matters. The Rule 41 A does not prohibit exhibition of the cinematograph films, instead, it regulates it by providing that instead of five shows only four shows should be exhibited in a day. The Rule does not take away the licensees ' right to carry on business of exhibiting cinematograph films; it merely regulates it. No rule or law could be declared unreasonable merely because there was reduction in the income of a on account of the regulation of the business. Rule 41 A does not place any unreason 515 able restriction on the appellants '/petitioners ' fundamental right guaranteed to them under Article 19(1)(g) of the Constitution. It carries out the purpose of the Act in regulating the exhibition of the cinematograph films in the licensed premises. Rule 41 A is inter vires the Act. [525G H;526C,527A B] The Court was in agreement with the majority opinion of the High Court. Narender Kumar vs Union of India, ; , referred to. Shelvarajan vs State of Mysore, , disapproved. Vishnu Talkies vs State of Bihar, AIR 1975 Patna 26 and D.K . V. Prasad Rao vs State of Andhra Pradesh, AIR 1984 A.P. 75, approved.

The Nellore Ramapuram route passing over a short dis tance of 8 K.m. through Tamil Nadu was proposed to be natio nalised by the Andhra, Pradesh Government. The appellant an existing private operator on the route challenged the scheme on the ground that the route being an inter state route, noncompliance with section 68 D(3) of the aborted the Nationalisation. The High Court held that the decisive test turned on whether both the termini fall within the same state and it did in this case and so on question of inter state route arose. On appeal by Certifi cate the court HELD: (1) (a) The route Nellore Ramapuram is an inter state route; (b) the Scheme of Nationalisation is operative even in the absence of the previous approval of the Central Government so far as the portions which fall within Andhra Pradesh are concerned and (c) the nationalisation cannot become effective over the strip in Tamil Nadu and ,private operators may still be permitted to ply their services over that strip by the concerned authority within Tamil Nadu State, but (d) The Andhra Pradesh State Transport Corpora tion may ply its buses over the Tamil Nadu enclave even without counter signature, exemption having been granted in that behalf by the 2nd proviso to section 63(1 ) of the . [567H, 568 A B] (2) The definition of 'Route ' in section 2(28A) of the Act is not a notional line "as the crow flies" but the actual highway as a motor vehicle traverses from one terminus to another. A route is transformed into an inter state one, if the highway it covers passes through more than one state. An inter state route may be of the categories either con necting two states or traversing two or more states. [564 D E] (3) Ordinarily not invariably the two termini test is a, working solution and not an inflexible formation. The termini test may lead to strange results, fatal to federal ideas. A route which originates in Srinagar, runs down South to Kanyakumari and rises North to end again in Kashmir, completing a Bharat Darshan, cannot sensibly be called an interstate one, without doing violence to lan guage, geography and federalism. And in the absence of a statutory definition of inter state route non violence to English and conformance to commonsense dictate the adoption of the conventional meaning that if a route traverses more than one state it is inter state. [564 B C, D] (4) Undoubtedly, where the termini fall in different states the route is inter state. But that does not ex clude other categories of inter state route such as where it crosses a state other than the originating state although gets back into it later. If the territory of more than one state is covered even if both the termini eventually fall within the same state, the route is inter not intra state. [564H, 565A] 563 Kazan Singh ; ; Ahwathanarayan vs State ; pp. 100 101. explained. (5) If the whole of the route lies within a single state it is intra state and not inter state, even though the road over which the route lies runs beyond the borders of that single state as national highways do. It is elementary that there can be inter state routes which run into or through more than one state. A part of that long route may itself be a separate route and may fall wholly within a single state in which case the former may be inter state while the latter will be an intra state route. [565G H, 566A] (6) There can be no doubt that the scheme notified by one State will, even in the case of an inter state route, operate to the extent it lies within that State. Its extra territorial effect depends on securing of prior Cen tral Government approval under the proviso to Section 680(3). However, the permit granted in one state may still be valid in. another state, if the condition specified in the 2nd proviso to section 63(1) is fulfilled. The portion of the route, in the instant case, falling outside Andhra Pradesh (both termini being within that state) is admittedly less than 16 k.m. and so no question of countersignature by the State Transport Authority or the Regional Transport Authority of Tamil Nadu arises. The portion of the inter state route which fell within Andhra Pradesh stand nationa lised and consequently exclude private operators. But that strip of the inter state route which falls within Tamil Nadu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport Buses could ply on that strip also in view of the 2nd proviso to section 63(1) of the . [567 A B, E F]

On August 23, 1969, the respondent accused came in a tractor and stopped it on the highway. Seeing the parked truck GTF 904 which he used to drive previously, the accused used the key of his tractor to start the same and drove it with the head lights on in full speed. The conductor of the truck owner was also in the tractor at that time. The tractor while being driven by the field and while he was trying to turn towards the kutcha road hit against the cot in which the village Sarpanch who was resting on it and taking with three policemen. The policemen jumped from the cot and sustained injuries, while the Sarpanch who was thrown away by the impact of the tractor to a distance of about ten feet from the cot, had grievous injuries to which he succumbed later. Since there was enmity between the deceased and the accused over the Panchayat elections, the prosecution put up a case of deliberate and willful driving of the vehicle towards the cot with the intention of causing death of the deceased Sarpanch. The Sessions Judge convicted the accused (i) under section 304 Part IT, I.P.C. for causing the death of the Sarpanch and (ii) under section 326 and 323, I.P.C. for causing injuries to the two other persons and sentenced him for rigorous imprisonment for seven years and two years respectively for the said offences. On appeal to the High Court the conviction was altered to one under section 304A only and the respondent was sentenced to rigorous imprisonment for 18 months and to a fine of Rs. 500/ . Dismissing the State 's appeal by special leave, the Court, ^ HELD . (1) Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under section 299, I.P.C. or murder under section 300 I.P.C. Each case will depend on the particular facts established against the accused. [305A B] (2) Section 304A, by its own definition totally excludes the ingredients of section 299 or section 300, I.P.C. Doing an act with the intent to kill a person or knowledge that doing of an act is likely to cause a person 's death are ingredients of the offence of culpable homicide. When intent or knowledge is the direct motivating force of the act complained of, section 304A has to make room for the graver and more serious charge of culpable homicide. [306 GH, 307A] (3) In the instant case, the tangential track of the speeding truck coming in contact with the corner of the steel cot throwing it over the wooden cot and thereby throwing tho deceased out of it resulting in fatal injuries, would not reveal the accused 's intention or any deliberate act with the requisite knowledge for an offence of culpable homicide. The facts and circumstances disclosed in this case fit in more reasonably with the theory of loss of control by the accused of the vehicle in high speed trying to take a turn for the kutcha road. The case falls under section 304A, I.P.C. and not under 3. 304 Part 11, I.P.C. [307 A C]

The appellant was appointed as overseer by the Municipal Board, Kanpur, on March 5, 1937, and continued in its service up to March 19, 1951, when a copy of the resolution passed by the Board on March 5, 1951, purporting to dismiss him from service was handed over to him. On April 7, 1951, he filed an appeal to the Government against the order of dismissal from service, but he was informed on April 8, 1952, that his appeal was rejected. Thereafter on December 8, 1952, the appellant instituted a suit challenging the legality of the order of dismissal on various grounds, and the question arose whether the suit was within time. Sub section (I) Of section 326 of the U. P. Municipalities Act, 1916, provided that no suit shall be instituted against a Municipal Board " until the expiration of the two months next after notice in writing has been left at the office of the Board. explicitly stating the cause of action " ; and sub section (3) stated that " no action such as is described in sub section (1) shall. be commenced otherwise than within six months next after the accrual of the cause of action ". The appellant contended that the cause of action accrued to him on April 8, 1952, when the order of dismissal of his appeal to the Government was communicated to him and the suit, filed within eight months of that date, was within time, and relied on the provisions of section 58 (1) and (2), read with section 69, of the Act, which gave an officer dismissed by the Board a right of appeal to the Government within 30 days of the communication to him of the order dismissal : Held, that though the order passed by the Board on March 5, 1951, was subject to a right of appeal to the Government, the operation of the order was not suspended by the mere filing of the appeal, and the order became effective from March 19, 1951, when it was communicated to the appellant. The cause of action, therefore, accrued to him on that date, and the suit filed by him on December 8, 1952, was barred by limitation under section 326 of the U. P. Municipalities Act, 1916.

The appellant was granted a permit for stage carriage by the Regional Transport Authority under the provisions of the , but on appeal to the appellate authority, the Central Road Traffic Board, by the unsuccessful applicants the order granting the permit was set aside and the order of the Central Road Traffic Board was approved by the Government in revision. The appellant, thereupon, moved the High Court for a writ of certiorari to quash the proceedings of the Central Road Traffic Board and the Goverment. During the pendency of these proceedings there was a stay of operation of the order setting aside the grant of the permit to the Appellant, with the result that be continued to run his buses notwithstanding the cancellation of his permit. Before the expiry of the period fixed in the original 664 permit, he applied for and got a renewal of the permit from the Regional Transport Authority under section 58 of the Act. The High Court finally dismissed the application for a writ of certiorari and 'the question arose as to the validity of the renewal of the permit in view of the High Court 's decision. The matter was raised before the High Court once again by proceedings under article 226 of the Constitution and the High Court held that the renewal having been obtained on the basis of a permit which had been subsequently cancelled, it could not be regarded as a fresh permit, that when the original permit was set aside, it must be taken to be non est for all purposes, and I that the renewal must therefore be held to be a nullity. The appellant appealed to the Supreme Court. Held:(1) Under the provisions of the Motor Vehicles Act, 1949 and the rules framed thereunder, a renewal is a continuation of the original permit. When the original permit was renewed in favour of the appellant it was subject to the decision of the High Court in the proceedings under article 226 of the Constitution which were then pending and, therefore, when the order granting the original permit was fin ally set aside the renewed permit became void. Anjiah vs Regional Transport Officer, Guntur, 1956 Andhra Law Times, 347, disapproved. (2)When the appellant applied for a renewal of his permit under section 58 of the Act and not merely for a fresh permit the order of the Regional Transport Authority granting the renewal must be held to have been made subject to the implied condition that the right of the appellant to the original permit is recognized by the High Court and that accordingly, in the event that had happened, the renewed permit ceased to, be effective.,. Veerappa Pillai vs Raman & Raman Ltd., ; , explained and distinguished.

In 1955 the Government of Madras framed Rules under the Madras Hindu Religious and Charitable Endowments Act, 1951, as amended by Act 27 of 1954, prescribing a graduated scale of rates of contribution under section 76(1) of the Act. The rules remained in force in the State of Mysore after reorganisation of the State of Madras and applied to the temples in the South Kanara district which was incorporated in the Mysore State. On a petition by the respondents, trustees of a temple in the South Kanara district, the High Court of Mysore in Devraja Shenoy vs The State of Mysore declared invalid certain provisions of the amended Act imposing control upon the administration of temples governed by the Act. Thereafter the Assistant Commissioner of Religious Endowments directed the respondents to pay the arrears of contribution and audit fee. The respondents again moved the High Court challenging the validity of the demand. The High Court upheld their plea on the ground that no rules had been framed under section 100 of the Act, and, therefore, the demand for recovery of contribution was premature. The decision of the High Court was largely influenced by some observations made in the judgment in Devraja Shenoy 's case. The court observed that since what was stated in that case on behalf of the State wag that the amount of contribution payable by the petitioner (respondent) temple had to be prescribed by a rule which 'remained to be made it meant that what was decided was that no contribution could be recovered from the temple until such a rule was made. Regarding the demand for arrears of audit fee the court held that the Commissioner had not "determined" the cost of auditing the account of the respondent temple under section 76 (2) of the Act and the demand was "on that account without competence or authority of law. " In appeal to this Court, HELD : (i) It is true that the High Court declared invalid certain provisions of the Act imposing control over the administration of temples governed by the Act. But on that account the power to make rules was not restricted nor were the rules framed by the government rendered invalid. The assumption made by the High Court that the Government had to make under section 100 rules applicable to each temple separately and prescribing the levy for determining contribution, finds no support in the provisions of the Act or its scheme. Under the Act a fee though levied for rendering services of a particular type need not be co related to the services performed for each individual who is intended to obtain the benefit of the services. The co relation must be between the expenses incurred by the authority levying the fee for generally providing the service and the aggregate of the levy from persons who are to be made subject thereto. It is a necessary corollary that general rules prescribing the levy of fee from religious endowments have to be made and not rules governing individual endowments. Such general rules were in fact framed and were in operation when the 918 demand was made. The concession made by the Advocate General at the hearing in Devraja Shenoy 's case did not oblige the State to frame separate rules in respect of each individual religious institution. Even if the respondent! temple did not need the services or did not obtain benefit of the services provided the contribution would still be recoverable. Because the rules were framed at a time when several different kinds of services were intended to be rendered and the court later struck down certain provisions of the Act under which services were to be rendered, the rules framed in 1955 cannot be held to be inapplicable. [921 A B, G; 922 E, G 923 B] H. H. Sudhindra Thirtha Swatniar vs Commissioner for Hindu Religious & Charitable Endowments, Mysore, [1963] Supp. 2 S.C.R. 302, referred to. (ii) It was not the case of the respondents in their petition in the High Court that the Commissioner had a not "determined" the audit fee under section 76(2). It was merely asserted that the fee demanded was excessive. Since the High Court proceeded upon the ground of absence of determination by the Commissioner which was never pleaded and the High Court had not determined whether the audit fee demanded was for meeting the cost of auditing the accounts of the respondent temple, the order passed by the High Court must be set aside and the case remanded. [924 C]

102 of 1958. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. M. K. Nambiar, and section N. Andley, for the petitioners. H. N. Sanyal, Additional Solicitor General of India, M. P. Balagavgadhar Menon and Sardar Bahadur, for the respondents. April 14. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. The Government of Kerala( appointed a Committee in exercise of its powers 948 conferred by cl. (a) of sub section (1) of section 5 of the (Act XI of 1948) (hereafter called the Act), to hold enquiries and advise the Government in fixing minimum rates of wages in respect of employment in the tile industry and nominated eight persons to constitute the said Committee under section 9 of the Act. This notification was published on August 14, 1957. The Committee made its report on March 30, 1958. The Government of Kerala then considered the report and issued a notification on May 12, 1958, prescribing minimum rates of wages as specified in the schedule annexed thereto. This notification was ordered to come into effect on May 26,1958. On that date the present petition was filed under article 32 by the nine petitioners who represent six tile factories in Feroke Kozhikode District, challenging the validity of the 'Act as well as the validity of the notification issued by the Government of Kerala. The State of Kerala is impleaded as respondent to the petition. The petitioners allege that the minimum wage rates fixed by the notification are very much above the level of what may be properly regarded as minimum wages and it was essential that before the impugned wage rates were prescribed the employers ' capacity to pay should have been considered. Since this essential element had not been taken into account at all by the Committee as well as by the respondent the notification is ultra vires and inoperative. According to them the burden imposed by the notification is beyond the financial capacity of the industry in general and of their individual capacity in particular, and this is illustrated by the fact that nearly 62 tile factories in Trichur closed soon after the notification was published. The petitioners seek to challenge the validity of the Act on several grounds set out by them in clauses (a) to (g) of paragraph 21 of the petition. It is urged that the Act does not define what the minimum wage is to comprise or to comprehend and as such confers arbitrary authority on the appropriate Governments to impose unreasonable restrictions on the employers. 'The law conferring such arbitrary power is violative of article 19(1)(g) of the Constitution. Since the Act 949 empowers the fixation of a wage which may disable or destroy the industry it cannot be said to be reasonable and as such is beyond the purview of article 19(1) and (6) of the Constitution. The Act does not lay down any reasonable procedure in the imposition of restrictions by fixation of minimum wage and so authorises any procedure to be adopted which may even violate the principles of natural justice. It is also alleged that the Act is discriminatory in effect inasmuch as it submits some industries to its arbitrary procedure in the matter of fixation of minimum wages and leaves other industries to the more orderly and regulated procedure of the Industrial Disputes Act. It is on these grounds that the validity of the Act is impugned. The petitioners impugn the validity of the notification also for the same reasons. Besides, it is urged that the notification has in effect fixed not minimum wages but fair wages and so it was essential that the capacity of the employers to bear the burden proposed to be imposed ought to have been considered. Failure to consider this essential aspect of the matter has, it is urged, rendered the notification void. That in substance is the nature of the case set out by the petitioners in their present petition. The respondent has traversed all these allegations. It is urged that the validity of the Act is no longer open to challenge since the question is concluded by the decisions of this Court; and it is alleged that what the notification purports to do is to fix the minimum wage and no more and as such the capacity of the employer to pay such a minimum wage is irrelevant. It is further alleged that decisions of this Court have firmly established the principle that in the matter of fixing minimum wages the capacity of the employer to pay need not be considered and that if any employer is unable to pay what can be regarded as minimum wages to his employees he has no right to carry on his industry. It is further pointed out that out of 18 factories in Feroke only six factories have come to this Court and it is suggested that the grievance made by the petitioners that the wage rates fixed are 950 beyond their capacity is not genuine or honest. The respondent also points out that the Committee appointed by it was a representative Committee and its report showed that it had considered the matter very carefully. Alternatively it is urged that the report of the said Committee would show that the capacity to pay had not been ignored by the Committee. The impact of the minimum wage, rate suggested by it had been considered by the Committee and so the Committee made its recommendations area wise. In regard to the closure of factories in Trichur the respondent 's case was that the said closure was not the result of financial inability of the factories to bear the burden but was probably actuated by political motives. The respondent also put in a general plea that in fact all the factories in the Kerala 'State except some of the factories in the Trichur area and one of the petitioners had implemented the notification without any objection or protest; and so it was argued that there was no substance in the grievance made by the petitioners. That in brief is the nature of the contentions raised by the respondent in reply to the petitioner 's case. At this stage it would be relevant to refer briefly to the Committee 's report in the order to find out how the Committee proceeded to discharge its task and what is the nature of its recommendations. The Committee consisted of eight members three of whom were the employers ' representatives and three the employees ' representatives while the Chairman Mr. V. R. Pillai and Mr. G. S.Pillai, the District Labour Officer, were nominated on the Committee as independent members. The Chairman Mr. Pillai is a M.A., M. Sc. in Economics of the London University. He is a Professor of Economics in the University College at Trivandrum and has had considerable experience inasmuch as he has served on several such Committees in the past. The Committee issued a questionnaire to all the tile factories in the State and other persons interested, considered the replies received from them, personally visited certain factories, recorded evidence of various associations representing the 951 tile factories as well as of individuals, and took into account various facts which the Committee thought were relevant. The report of the Committee shows that, subject to minor differences disclosed in the minute of dissent filed by Mr. K. Subramonia Iyer and the reply to it filed by Mr. A. Karunakaran, the recommendations of the Committee were unanimous and so prima facie we start with the fact that the recommendations of the Committee were approved not only by the two independent members but they secured the concurrence of the representatives of the employers as well as the employees. The report of the Committee consists of five chapters. Chapter 1 deals with the development of the tile industry in Kerala, chapter 11 deals with the problem of standardisation in the tile industry, chapter III considers the problem of wage structure area wise, chapter IV discusses the problem of minimum wage fixation, its principles and procedure, and chapter V records the conclusions and recommendations of the Committee. In dealing with the problem of wage structure the Committee has observed that the prevailing wage rates in the tile factories in the State show considerable difference from one centre to another, and that, according to the Committee, is partly due to historical factors and partly to the economic status of the workers in the areas concerned. The Committee formed the opinion that there being very little scope for alternative employment except in low paid agricultural occupations the bargaining position of the workers has all along been very weak and wages too have tended to remain at a relatively low level. It is in the light of this background that the Committee naturally proceeded to consider the problem of the fixation of minimum wage rates. The Committee has accepted the observation of the Fair Wages Committee that the minimum wage "must provide not merely for the bare subsistence of life but for the preservation of the efficiency of the workers. " Then it examined the food requirements of the employee on the basis of three consumption units recognized in Dr. Aykroyd 's formula. It then adopted 952 the assessment made by the Planning Commission in regard to the requirements of the employees in cotton textiles and placed the employee 's requirement at a per capita consumption of 18 yards per unit, then it took into account the requirement of housing and it held that the additional requirements of workers for fuel, lighting and additional miscellaneous items of expenditure should generally be fixed at 20% of the total wage in cases where the actual percentage has not been found out by a family budget enquiry. The Committee was conscious that it had to approach the problem from the point of view of the minimum needs of workers in order to maintain a subsistence standard, and so it enumerated the requirements of workers in that behalf as food, clothing, fuel, lighting and other miscellaneous items in which are also included rent, education, medical aid and entertainment. On this basis the Committee formulated the weekly food budget of the employee, added to it the requirement of clothing and miscellaneous items. According to the Committee the total weekly expen diture on this basis would be food 13.03, clothing 1.15 and miscellaneous 2.84, the total being Rs. 17.02 nP. The Committee then observed "calculating on the basis of six days per week a worker should get a minimum of Rs. 2.67 nP. per day to maintain a 'subsistence plus ' standard." Ultimately the Committee recommended that the minimum basic wage of an unskilled worker in the "A" region, viz., Quilon and Feroke, should be Re. 1. With a cost of living index for the tile Centers at an average figure of 400, and the minimum requirements of the workers at Rs. 2.67 nP. this basic wage corresponds to 150 in the cost of living index number. As to dearness allowance the Committee recommended that it should be related to the cost of living index and that the dearness allowance should be fixed at the rate of 1 nP. for every two points for all points above 200. Thus, when the cost of living index is 400 an unskilled worker will get Re. 1 as basic wage and Re. 1 as dearness allowance making a total of Rs. 2. The Committee added that if the rise in the cost of living had to be completely 953 neutralised he should get Rs. 1.67 nP as dearness allowance, but he gets only Re. 1 that is to say 100/ 167 or 60% of the increase in the cost of living. Therefore, the extent of the neutralisation of the increase in the cost of living is 60%. The Committee recognised regional differences and so introduced five Grades classified as A, B, C, D and E for the purpose of fixing the wage structure. The Committee hoped that the regional differences recommended by it would enable the backward areas to come up by improving the efficiency of production and marketing so that eventually they will be in a position to pay the same wages as advanced areas. The notification issued is substantially on the lines of the recommendations made by the Committee. Employees engaged in the tile industry have been categorised and their minimum wage rates have been classified into clauses A to E. In regard to dearness allowance the notification provides that a flat rate of dearness allowance for all workers irrespective of sex or grade shall be paid at the rate of one naya paisa for every two points in the cost of living index in each year in excess of Rs. 200. Thus the notification purports to prescribe the minimum rates of wages in regard to tile industry in the State; it is the validity of this notification that is impugned before us by the present petition. Before dealing with the points raised by Mr. Nambiar on behalf of the petitioners it is necessary to refer very briefly to the material provisions of the Act. This Act was passed in 1948, because it was thought expedient to provide for fixing minimum rates of wages in certain employments. Under section 3 the appropriate Government is empowered to fix mini. mum rates of wages in regard to employments as therein specified, and review the same at such intervals as specified by section 3(1). Section 3(3) contemplates that in fixing or refixing minimum rates of wages different minimum rates of wages may be fixed for different scheduled employments, different classes of work in the same scheduled employments, adults, 120 954 adolescents, children and apprentices, and different localities. Under section 4 any minimum rate of wages fixed or revised may, inter alia, consist of a basic rate of wages and a special allowance at a rate to be adjusted, or a basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concession rates where so authorised or an all inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions if any. Section 5 prescribes the procedure for fixing and revising minimum wages. It is under this section that a Committee was appointed by the respondent in the present case. Section 9 makes provision for the composition of the Committee. Such Committees have to consist of equal number of representatives of employers and employees and of independent persons not exceeding. one third of the total number of members. Section 12(1) imposes on the employer the obligation to pay the minimum rates of wages prescribed under the Act. Section 22 provides for penalties for offences and section 22A makes a general provision for punishment of offences not otherwise expressly provided for. Under section 25 any contract or agreement whether made before or after the commencement of this Act which affects an employee 's right to a minimum rate of wages prescribed under the Act shall be null and void so far as it purports to reduce the said minimum rate of wages. Section 27 empowers the appropriate Government, after giving notification as prescribed, to add to either part of the schedule any employment in respect of which it is of opinion that minimum rates should be fixed, and thereupon the schedule shall be deemed to be amended accordingly in regard to that State. In the case of The Edward Mills Co. Ltd., Beawar & Ors. vs The State of Ajmer (1), the validity of section 27 of the Act was challenged on the ground of excessive delegation. it was urged that the Act prescribed no principles and laid down no standard which could furnish an intelligent guidance to the administrative (1) ; 955 authority in making selection while acting under section 27 and so the matter was left entirely to the discretion of the appropriate Government which can amend the schedule in any way it liked and such delegation virtually amounted to a surrender by the Legislature of its essential legislative function. This contention was rejected by Mukherjea, J., is he then was, who spoke for the Court. The learned Judge observed that the Legislature undoubtedly intended to apply the Act to those industries only where by reason of un organised labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low. He also pointed out that conditions of labour vary under different circumstances and from State to State and the expediency of including at particular trade or industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by a person who is placed in charge of the administration of a particular State. That is why the Court concluded that in enacting section 27 it could not be said that the Legislature had in any way stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. In the same year another attempt was made to challenge the validity of the Act in Bijay Cotton Mills, Ltd. vs The State of Ajmer (1). This time the crucial sections of the Act, namely, sections 3, 4 and 5 were attacked, and the challenge was based on the ground that the restrictions imposed by them upon the freedom of contract violated the fundamental right guaranteed under article 19(1)(g) of the Constitution. This challenge was repelled by Mukherjea, J., as he then was, who again spoke for the Court. The learned Judge held that the restrictions were imposed in the interest of the general public and with a view to carry out one of the directive principles of State policy as embodied in article 43 and so the impugned sections (1) ; 956 were protected by the terms of cl. (6) of article 19. In repelling the argument of the employers ' inability to meet the burden of the minimum wage rates it was observed that "the employers cannot be heard to complain if they are compelled to pay minimum wages to their labourers even though the labourers on account of their poverty and helplessness are willing to work on lesser wages, and that if individual employers might find it difficult to carry on business on the basis of minimum wages fixed under the Act that cannot be the reason for striking down the law itself as unreasonable. The inability of the employers may in many cases be due entirely to the economic conditions of those employers. " It would thus be seen that these two decisions have firmly established the validity of the Act, and there can no longer be any doubt that in fixing the minimum wage rates as contemplated by the Act the hardship caused to individual employers or their inability to meet the burden has no relevance. Incidentally, it may be pointed out that in dealing with the minimum wage rate,,; intended to be pre scribed by the Act Mukherjea, J., has in one place observed that the labourers should be secured adequate living wages. In the context it is clear that the learned Judge was not referring to living wages properly so called but to the minimum wages with which alone the Act is concerned. In view of these two decisions we have not allowed Mr. Nambiar to raise any contentions against the validity of the Act. It is true that Mr. Nambiar attempted to argue that certain aspects of the matter on which he wished to rely had not been duly considered by the Court in Bijay Cotton Mills Ltd. 's case (1). In our opinion it is futile to attempt to reopen an issue which is clearly concluded by the decisions of this Court. Therefore, we will proceed to deal with the present petition, as we must, on the basis that the Act under which the Committee " as appointed and the notification was ultimately issued is valid. We have already seen what the Act purports to achieve is to prevent exploitation of labour and for (1) ; 957 that purpose authorises the appropriate Government to take steps to prescribe minimum rates of wages in the scheduled industries. In an under developed country which faces the problem of unemployment on a very large scale it is not unlikely that labour may offer to work even on starvation wages. The policy of the Act is to prevent the employment of such sweated labour in the interest of general public and so in prescribing the minimum wage rates the capacity of the employer need not be considered. What is being prescribed is minimum wage rates which a welfare state assumes every employer must pay before he employs labour. This principle is not disputed (Vide: Messrs. Crown Aluminium Works vs Their Workmen(1) it is, therefore, necessary to consider what are the components of a minimum wage in the context of the Act. The evidence led before the Committee on Fair Wages showed that some witnesses were inclined to take the view that the minimum wage is that wage which is essential to cover the bare physical needs of a worker and his family, whereas the overwhelming majority of witnesses agreed that a minimum wage should also provide for some other essential requirements such as a minimum of education, medical facilities and other amenities. The Committee came to the conclusion that a minimum wage must provide not merely for the bare subsistence of life but for the preservation of the efficiency of the worker, and so it must also provide for some measure of education, medical requirements and amenities. The concept about the components of the minimum wage thus enunciated by the Committee have been generally accepted by industrial adjudication in this country. Sometimes the minimum wage is described as a bare minimum wage in order to distinguish it from the, wage structure which is 'subsistence plus or fair wage, but too much emphasis on the adjective "bare" in relation to the minimum wage is apt to lead to the erroneous assumption that the maintenance wage is a wage which enables the worker to cover his bare (1) ; 958 physical needs and ]Keep himself just above starvation. That clearly is not intended by the concept of minimum wage. On the other hand, since the capacity of the employer to pay is treated as irrelevant, it is but right that no addition should be made to the com ponents of the minimum wage which would take the minimum wage near the lower level of the fair wage, but the contents of this concept must ensure for the employee not only his sustenance and that of his family but must also preserve his efficiency as a worker. The Act contemplates that minimum wage rates should be fixed in the scheduled industries with the dual object of providing sustenance and maintenance of the worker and his family and preserving his efficiency as a worker. Mr. Nambiar contends that when the statute purports to prescribe a minimum wage in effect it directs the fixation of a statutory minimum wage and as such, capacity to pay must be considered before such minimum wage is fixed. His argument is that in any event the impugned notification statutorily prescribes such minimum wage rates for the tile industry in the State of Kerala and as such the rates so recommended do not constitute merely the industrial and economic minimum as understood by industrial adjudication but it constitutes a statutory minimum which can be fixed only after taking into account the employers ' capacity to pay the same. In support of this argument Mr. Nambiar has strongly relied on some observations made by this Court in the case of Express Newspapers (Private) Ltd. vs The Union of India (1). We will presently refer to the said observations but in appreciating the nature and effect of the said observations it is necessary to recall that in that case the Court was dealing with the problem of fixation of wages in regard to Working Journalists as prescribed by section 9 of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 (45 of 1955). Section 9 of the said Act required that in fixing rates of wages in respect of working journalists the Board had to have regard to the cost of living, the prevalent (1) 959 rates of wages for comparable employments, the circumstances relating, to newspaper industry in different regions of the country and to any other circumstance which to the Board may deem relevant. It was held that the wage structure contemplated by section 9 was not the structure of minimum wage rates, it was a wage structure permitted to be prescribed by that statute after taking into account several relevant facts and the scheme of that Act showed that the wage structure thus contemplated was very much beyond the minimum wage rates and was nearer the concept of a fair wage. That is why the Court took the view that the expression "any other circumstance" specified by section 9 definitely included the circumstance, namely, the capacity of the industry to bear the burden and so the Board was bound to take that factor into account in fixing the wage structure. It appeared to the Court that this important element had not been considered by the Board at all and that introduced a fatal infirmity in the decisions of the Board. Thus, the wage structure with which the Court was concerned in that case was not the mini. mum wage structure at all. It is essential to remember this aspect of the matter in appreciating the argument urged by Mr. Nambiar on the strength of certain observations made by this Court in the course of its judgment. In the course of his judgment Bhagwati, J., who spoke for the Court, has elaborately considered several aspects of the concept of wage structure including the concept of minimum wage. The conclusion of the Fair Wage Committee as to the content of the minimum wage has been cited with approval (p. 83). Then a distinction has been drawn between a bare subsistence or minimum wage and a statutory minimum wage, and it is observed that the statutory minimum wage is the minimum which is prescribed by the statute and it may be higher than the bare subsistence or minimum wage providing for some measure of education, medical requirements and amenities (p. 84). This observation is followed by a discussion about the concept of fair wage; and in 960 dealing with the said topic the has also been referred to and it is stated that the Act was intended to provide for fixing minimum rates of wages in certain employments and the appropriate Government was thereby empowered to fix different minimum rates of wages as contemplated by section 3(3). Then it is stated that whereas the bare minimum or subsistence wage would have to be fixed irrespective of the capacity of the industry to pay the minimum wage thus contemplated postulates the capacity of the industry to pay and no fixation of wages which ignores this essential factor of the capacity of the industry to pay could ever be supported. Mr. Nambiar contends that the last part of the observation refers to the minimum wage prescribed by the Act and it requires that before prescribing the said wage the capacity of the industry must be considered. We do not think that this argument is well founded. It would be noticed that in considering the distinction drawn between the minimum wage fixed by industrial adjudication and the minimum wage prescribed by a statute which is called statutory minimum it has been made clear that the latter can be higher than the bare subsistence or minimum wage and as such is different in kind from the industrial minimum wage. We do not think that the observation in question was intended to lay down the principle that whereas a minimum wage can be laid down by an industrial adjudication without reference to an employer 's capacity to pay the same it cannot be fixed by a statute without considering the employer 's capacity to pay. Such a conclusion would be plainly illogical and unreasonable. The observations on which Mr. Nambiar relies do not support the assumption made by him and were not intended to lay down any such rule. Cases are not unknown where statutes prescribe a minimum and it is plain from the relevant statutory provisions themselves that the minimum thus prescribed is not the economic or industrial minimum but contains several components which take the statutorily prescribed minimum near the level of the fair wage,and when that is the effect of the statutory provision capacity to pay may no doubt have to be 961 considered. It was a statutory wage structure of this kind with which the Court was dealing in the case of Express Newspapers (Private) Ltd. (1), because section 9 authorised the imposition of a wage structure very much above the level of the minimum wage and it is obvious that the observations made in the judgment cannot, and should not, be divorced from the context of the provisions with respect to which it was pronounced. Therefore, we feel no hesitation in reject ing the argument that because the Act prescribes minimum wage rates it is necessary that the capacity of the employer to bear the burden of the said wage structure must be considered. The attack against the validity of the notification made on this ground must therefore fail. It still remains to consider whether in fact the noti. fication has prescribed a wage structure which is above the level of the minimum wage properly socalled. If the notification has in fact prescribed a wage structure which is nearer the fair wage level and is above the minimum wage structure that no doubt would introduce an infirmity in the notification since it does appear that the capacity of the employer to bear the burden has not been considered either by the Committee or by the Government. This part of the attack against the notification is based on two grounds. Mr. Nambiar contends that in making its calculations about the minimum wage rates the Committee has taken into account an item of entertainment, and that, says Mr. Nambiar, is clearly inadmissible. He also points out that the Committee has described the daily minimum of Rs. 2.67 nP. ultimately deduced by it as intended to maintain the employee 's subsistence plus ' standard and that again shows that the wage structure is above the minimum, standard and goes towards the lower level of the fair wage. We are not impressed by this argument. It would be recalled that amongst the miscellaneous items in respect of which Rs. 2.84 nP. are added by the Committee in its calculations are rent, education, (1) 121 962 medical aid and entertainment. The first three are not inadmissible, and so the attack is against the inclusion of the last item alone. Even assuming that the last item is inadmissible it is not difficult to imagine that the addition of this last item could not have meant much in the calculations of the Committee, and so the grievance made on account of the inclusion of the said item cannot be exaggerated. There are, however, two other factors which are relevant in this connection. What the Committee has described as the subsistence plus ' standard should on its own calculations represent the daily minimum of Rs. 2.84 nP., not Rs. 2.67 nP. Rs. 2.67 nP. is plainly the result of miscalculation so that it can be safely assumed that the said sum which is taken to represent the daily minimum to maintain a 'subsistence plus ' standard in fact does not include an amount which may be attributed to entertainment. Besides, it is necessary to remember that what the Committee has ultimately recommended is not the award of Rs. 2.67 nP. which according to it represents 'subsistence. plus ' standard but only Rs. 2 and that itself shows that what is re. commended is below the 'subsistence plus ' standard. There is yet another point which leads to the same conclusion. Even if the whole of the miscellaneous item is excluded and calculations are made on the basis that the total permissible items amount to Rs. 14.18 nP. we would still reach the figure for the daily minimum which is more than Rs. 2. Therefore, look at it how we may, it is impossible to accept the argument that the wage structure ultimately recommended by the Committee is anything higher than what the Committee thought to be the minimum wage structure. Therefore, we are not prepared to hold that the notification which is in conformity with the recommendations of the Committee has prescribed wage rates which are higher than the minimum wage structure. If that be so, failure to take into account the capacity of the industry to bear the burden can introduce no infirmity either in the recommendations of ' the Committee or in the notification following upon them. 963 Mr. Nambiar no doubt wanted to attack the merits of the notification on the ground that the wage rates fixed by it are unduly high. In that connection he relied on the fact that the minimum wage rates prescribed by the Madras Government by its notification published on February 25, 1952, as well as the wage rates prevailing in other industries in Kerala were slightly lower. He also pointed out that the wage rates awarded by industrial adjudication and even the claims made by the employees themselves would tend to show that what has been awarded by the notification is higher than the prescribed minimum wages. It is not possible for us to entertain this contention. The determination of minimum wages must inevitably take into account several relevant factors and the decision of this question has been left by the Legislature to the Committee which has to be appointed under the Act. We have already referred to the composition of the Committee and have reviewed very briefly its report. When a Committee consisting of the representatives of the industry and the employees considers the problem and makes its recommendations and when the said recommendations are accepted by the Government it would ordinarily not be possible for us to examine the merits of the recommendations as well as the merits of the wage structure finally notified by the Government. The notification has accepted the recommendations of the Committee to categorise the workers and that obviously was overdue. The fact that wages paid in other industries in Kerala, or in other States in comparable concerns, are lower would have been relevant for the Com mittee to consider when it made its recommendations. In appreciating the effect of the prevalence of lower rates it may also be relevant to bear in mind that in some places and in some industries labour is still employed on wages much below the standard of minimum rates. In fact, in its report the Committee has pointed out that in Kerala. the bargaining position of the workers has all along been very weak and wages have tended to remain in a deplorably low level. Therefore, the fact that lower wages are paid in other 964 industries or in some other places may not necessarily show that the rates prescribed by the notification are unduly high. In any event these are considerations Which ordinarily cannot be entertained by us because obviously we are not sitting in appeal over the recommendations of the Committee or the notification following upon them. That is why the grievance made by Mr. Nambiar on the merits of the wage structure prescribed by the notification cannot succeed. There is, however, one aspect of this problem to which we must refer before we part with this case. It appears that soon after the notification was issued as many as 62 tile factories in Trichur closed their works and that led to unemployment of nearly 6,000 employees. In order to resolve the deadlock thus created the respondent referred the industrial dispute arising between the Trichur factories and their employees for industrial adjudication (I.D. 45 of 1958). On this reference an interim award was made and it was followed by a final award on September 26, 1960. Both the interim and the final awards were the result of settlement between the parties and the order passed by the tribunal shows that the respondent, acting, through its Labour Minister, "left aside the prestige of the Government, came to the scene and effected a settlement." Mr. Nambiar has strongly criticised the conduct of the respondent in permitting a departure from the notification in respect of 62 tile factories at Trichur contrary to the provisions of the Act, and in insisting upon its implementation in respect of the other parts of the State. His argument is two fold. He suggests that the settlement reached between the parties in Trichur shows that the minimum prescribed by the notification was above the legally permissible minimum and beyond the capacity of the Trichur factories, and that would support his grievance that the rates prescribed are not the minimum but they are such above that level. We are not im pressed by this argument. As we have already observed we would ordinarily refuse to consider the merits of the wage structure prescribed by the notification. Besides, the closure of the factories in Trichur may 965 either be because the factories there found it difficult to pay the wage structure or may be for reasons other than industrial. We propose to express no opinion on that point because that is not a point in issue before us, and so the settlement can have no bearing on the fate of the present petition; but the other argument urged by Mr. Nambiar raises a serious question. Under the Act the notification has to apply to all the tile factories in the State and breach of the provisions of the notification is rendered penal under section 22 of the Act. An agreement or contract contrary to the notification would be void under section 25 of the Act. It is to be regretted that the respondent, acting through its Labour Minister, appears to have assisted in bringing about a settlement contrary to the terms of the Act. If the respon dent thought that such a settlement was necessary in respect of Trichur factories it may consider the question of withdrawing the notification in respect of that area and in fairness may also reconsider the problem in respect of all the other areas and decide whether any modification. in the notification is required. It is not appropriate that the respondent should be associated, though indirectly, with the settlement which is in breach of the provisions of the Act. We would, therefore, suggest that the respondent should seriously consider this aspect of the matter and should not hesitate to do what may appear to be just, reasonable and fair on an objective consideration of the whole problem. In the result, the petition fails and is dismissed. There would be no order as to costs. Petition dismissed.

The petitioners, representing certain tile factories, challenged the validity of the , as also the notification issued by the Kerala Government prescribing minimum rates of wages in respect of employment in the tile industry on the report of a committee constituted under the Act and consisting of the representatives both of the employers and employees who agreed with its recommendations. The case of the petitioners was that the notification had in effect fixed not minimum wages but fair wages and since neither the committee nor the Government in fixing them had considered the capacity of the employers to pay, the notification was void. Held, that in view of the decisions of this Court the con stitutional validity of the Act could no longer be in doubt and any hardship that may be caused to employers by the wages fixed under the Act or their incapacity to pay the same are irrelevant considerations in fixing such wages. 947 The Edward Mills Co. Ltd. vs The State of Ajmer, ; , Bijay Cotton Mills Ltd. vs State of Ajmer, ; and M/s. Crown Aluminium Works vs Their Workmen; , , referred to. While, therefore, in fixing the minimum wage nothing can be added to its components that may take it near the lower level of the fair wage, the minimum wage must ensure not only the sustenance of the employee and his family but also preserve his efficiency as a worker and that is what is contemplated by the Act. It is an error to think that the minimum wage is just what a worker requires to cover his physical needs and to keep himself above starvation. There can be no analogy between the which prescribes the economic and industrial minimum and a statute which prescribes its own minimum that approximates more or less to the fair wage standard and so makes it necessary to consider the employer 's capacity to pay. Express Newspapers (P.) Ltd. vs The Union of India, , explained and distinguished. This Court would ordinarily refuse to consider the merits of the wage structure set up by the Notification on the recommendations of the committee, agreed to by the representatives of the employers and the employees. The fact that wages paid in other industries in the State or in other States in comparable concerns are lower does not necessarily show that the rates prescribed by the Notification are unduly high. A notification under the Act must apply to all the factories in the State and the State cannot permit or be associated with a departure from it for that would amount to a contravention of SS. 22 and 25 of the Act. If a departure is considered necessary, the proper course would be to withdraw the notification in respect of the area concerned or to reconsider and modify it if necessary.

More than a quarter of a century ago, in the Standard Vacuum Refining Company vs Its Workmen, ; the Supreme Court affirmed the direction of the Industrial Tribunal for the abolition of the contract system of labour. As a result thereof, the Contract Labour (Abolition and Regulation) Act came to be passed, "to regulate the employ ment of contract labour in certain establishments and to provide for its abolition in certain circumstances and for matters connected therewith". The Central Government, in exercise of its powers conferred by section 35 of the Act, has made the Contract Labour (Abolition and Regulation) Central Rules, 1971 Section 10 of the Act empowers the appropriate Government to prohibit by notification in the Official Gazette, employment of contract labour in any process, Operation or other work in any establishment sub ject to the fulfilment of the conditions in sub section (2) thereof and after consulting the Central Board or the State Board as the case may be. Rule 25 prescribes the forms, terms and condition of licence including the payment of minimum wages under the holiday, hours of work etc. The Writ Petitioners, alleged that in spite of the Report of the Parliamentary Committee of Petitions under the Chairmanship of Shri K.P. Tiwari dated 30.4. 1984 and their representations the Southern Railway persisted in employing contract labour for cleaning its catering establishments and pantry cars by paying a pittance averaging Rs.2.00 to Rs.2.50 per day. Most of the other Railways had abolished the 165 system of employing labour through a contractor. Therefore, they sought relief for the abolition of the Contract Labour system by the issuance of a writ of mandamus under Article 32 of the Constitution and for a direction to treat them as regular employees. Issuing an appropriate writ in the nature of a direc tion, the Court, HELD: 1.1 It is clear that, on the facts presented and on the report of the Parliamentary Committee of Petitions, the work of cleaning catering establishments and pantry cars is necessary and incidental to the industry or business of the Southern Railway and so requirement (a) of S.10(2) is satisfied, that it is of a perennial nature and so require ment (b) is satisfied, that the work is done through regular workmen in most Railways in the country and so requirement (c) is satisfied and that the work requires the employment of sufficient number of whole time workmen and so require ment (d) is also satisfied. Thus all the relevant factors mentioned in section 10(2) of the Contract Labour (Abolition and Regulation) Act are satisfactorily accounted for. In addi tion there is the factor of profitability of the catering establishments. [177F H; 178A] Despite this, the Supreme Court will not issue of writ of mandamus to the Railway unless and until the Government of India fails or refuses to exercise the power vested in it under section 10 of the Act. Under section 10 Parliament has vested in the appropriate Government the power to prohibit the employment of Contract Labour in any process operation or other work in any establishment. The appropriate Govern ment is required to consult the Central Board or the State Board as the case may be before arriving at its decision. The decision, of course, will be subject to judicial review. In the circumstances the appropriate order to make in the present case is to direct the Central Government to take appropriate action under section 10 of the Contract Labour (Abolition and Regulation) Act in the matter of prohibiting the employment of contract labour in the work of cleaning catering establishments and pantry cars in the Southern Railway within a period of six months. [178B D] (The Court further directed that (i) without waiting for the decision of the Central Government the administration of the Southern Railway will be free, of its own motion to abolish the Contract labour system and to regularise the services of those employed in the work of cleaning catering establishments and pantry cars in the Southern 166 Railway. In any case, the administration of the Southern Railway will refrain, until the decision of the Central Government under section 10, from employing Contract labour; (ii) The work of cleaning catering establishments and pantry cars will be done departmentally by employing those workmen who were previously employed by the Contractor on the same wages and conditions of work as are applicable to those engaged in similar work by the Western Railway. If there is any dispute whether an individual workman was or was not employed by the Contractor such dispute shall be decided by the Deputy Labour Commissioner, Madras; (iii) Any further directions may be sought, if necessary from the Madras High Court; (iv) If the Central Government does not finally decide the ques tion within six months the Southern Railway administration will within three months thereafter absorb the workmen into their service and regularise their services. [178D G]

The question was whether the expression 'wages ' as defined in section 2 (22) of the includes 'House ' Rent Allowance ', Night Shift Allowance ' 'Heat, Gas and Dust Allowance ' and 'Incentive Allowance ' paid by an employer to his employees, ^ HELD: By the Court 1. is a piece of social welfare legislation. The definition of 'wages ' is designedly wide. The definition on its plain reading is clear and unambiguous. Even if there is any ambiguity, the expression has to be given a liberal interpretation and receive beneficent construction.[714C] 2. 'Wages ' as defined in section 2 (22) of the must necessarily include 'House Rent Allowance ', 'Night Shift Allowance ', 'Heat, Gas and Dust Allowance ' and 'Incentive Allowance '. [715C] Braithwaite & Co. (India) Ltd. vs The Employees ' State Insurance Corporation, [1968]1 S.C.R. 771, referred to N.G.E.F. Ltd. vs Deputy Regional Director, E.S.I.C., Bangalore, and Employees ' State Insurance Corporation, Hyderabad vs Andhra Pradesh Paper Mills Ltd., Rajahamundry, , approved. Bengal Potteries Ltd. vs Regional Director, W. Bengal Region, Employees 713 State Insurance Corporation and others, [1973] LAB. I.C. 1328 (V , over ruled. Per Chinnappa Reddy, J. Wages as defined in section 2 (22) of the Act includes not only remuneration paid or payable under the terms of the contract of employment, express or implied but further extends to other additional remuneration, if any paid at intervals not exceeding two months, though outside the terms of employment. [714G] 'Remuneration ' under the first clause has to be under a contract of employment, express or implied while 'remuneration ' under the third clause need not be under the contract of employment but may be any 'additional remuneration ' outside the contract of employment, [715B] Per Amarendra Nath Sen, J. The inclusive part and the exclusive portion in the definition of 'wages ' in section 2 (22) clearly indicate that the expression 'wages ' has been given a very wide meaning. The inclusive part of the definition read with the exclusive part in the definition clearly shows that the inclusive portion is not intended to be limited only to the items mentioned therein. Taking into consideration the excluding part in the definition and reading the definition as a whole the inclusive part, is only illustrative and tends to express the wide meaning and import of the word 'wages '. [717H; 718A B]

Respondent No. 1 acquired tenancy rights in five plots in the villages of Biknaur and Samahuta situated in the area known as Lower Murli Hill in District Shahabad, Bihar. In 1949 he filed a plaint in the Court of the Subordinate Judge Sasaram, against the State of Bihar and others, claiming inter alia that as a tenant he had a customary right to quarry limestone for trade purposes from the Lower Murli Hill. The claim was based mainly on certain entries in the Custom sheets prepared at the time of the Cadastral Survey in 1913 under section 102 of the Bihar Tenancy Act, 1885. The trial court rejected the claim but the High Court held the custom to be established by the evidence of the Customs sheets. The defendants appealed. Held The High Court was in error in holding that the plain tiff had established the custom pleaded by him or that it was reasonable. (i) There was nothing to show that the practices and privileges recorded in the Custom Sheets were exercised as a matter of right. The record has presumptive value. But the revenue authorities were concerned to ascertain the existing state of affairs and not to determine whether the practices and privileges were ancient, certain, reasonable and continuous. As evidence of local custom, the custom sheets had therefore not much value. On the other hand there were indications that the exercise of the privileges recorded therein was permissive. Even on the most liberal interpretation they did not provide evidence of the exercise of the privilege of commercial exploitation of limestone from the area in question. [317D; 319G] (ii) Even granting that the Custom sheets recorded a local custom that the tenants in the villages of Baknaur and Samahuta excavated stones from the hills near the villages for purposes of trade, a claim of right founded on that custom must be held unreasonable and incapable of enforcement by the sanction of a court 's verdict, [320B] A claim in the nature of a profit a prendre operating in favour of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid custom. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality. To the extent to which it is inconsistent with the general law undoubtedly the custom prevails. But to be valid a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. A right in the nature of a profit a prendre in the exercise of which the residents of a locality are entitled to excavate stone for trade purposes would ex facie 313 314 be unreasonable, because the exercise of such a right ordinarily tends to the complete destruction of the subject matter of the profit. The custom, if exercised in its amplitude as claimed, may also lead to breaches of the peace, for it would be open to all tenants to work any quarry simultaneously for trade purposes. [321B D; 324D] Lord Rivers vs Adams, L.R.3 exhibit Div. 361, Harris & Anr. vs Earl of Chesterfield and Anr. , , Alfred F. Beckett Ltd. vs Lyons , referred to Lutchhmeeput Singh vs Sadaulla Nushyo & Ors., I.L.R. 9 Cal. 698 and Arjun Kaibarta vs Manoranjan De Bhoumick, I.L.R. , approved. Henry Goodman vs The Mayor and Free Burgesses of the Borough of Saltash. 7 A.C. 633 and Mercer vs Denne, , 557 distinguished.

These petitions relate to child employment, prevalence of contract labour system and the non implementation of . This Court considered the petitions and appointed a Trust viz., Society for Community Organisation Trust for conducting appropriate investigation and to submit a report. The Trust submitted its report, which was then circulated to the Respondent State Government and the beedi manufacturers. On the direction of this Court for formulating a scheme, two Schemes cameto be formulated, one by the State Govern ment and the other by the petitioners. This Court directed that the terms should be settled for one Scheme to be accept ed by the Court, and given time to the Union of India to respond to the same. Union of India filed certain objec tions. Rejecting the objections and disposing of the petitions, this Court, 358 HELD: 1.1 The Beedi and Cigar Workers (Condition of Employment) Rules, 1968 should be strictly implemented and once that is done the evil of not furnishing the books to the home workers would be eradicated. [361 D, E] 2. An establishment of the Regional Provident Fund Commissioner with full equipment for the purpose of imple mentation of the Statute should be located within the area and the Regional provident Fund Commissioner should have directions to enforce the Act in all aspects. This estab lishment should start functioning within three months from now. [361 E, F] 3. The labour laws as also the should be strictly enforced so that the workers get their legitimate dues and the conditions of employment improve. [361 F G] 4. Tobacco manufacturing has indeed health hazards. Child labour in this trade should therefore be prohibited as far as possible and employment of child labour should be stopped either immediately or in a phased manner to be decided by the State Government but within a period not exceeding three years from now. The provisions of Child Labour Abolition Act, 1986 should be strictly implemented. [361 G, 11] 5. The Union Government is directed to look into the aspect whether contract labour system is indispensable in this trade and take its final decision one way or the other within six months from now. [362 A] 6. Beedi trade is a flourishing one and exploitation of labour is rampant in this trade. A governmental labour establishment should he located in the area with full com plement to answer the requiretenants of the matter. [362 F] 7. Sincc Beedi manufacturing process is carried more out side the factory than within, the system of maintaining the registers as a regulating practice has become necessary. Great care should, there fore be taken to ensure the maintenance of the register system as the bulk of the employees outside the factories can be regulated through the record maintained in the registers. [362 C] 8. The and the Beedi 359 Workers Welfare Fund Act, 1976 which contain beneficial provision should be implemented in the true spirit and since they are legislations of the Central Government, the machin ery of the Central Government should be made operational in the area. [362 D] 9. It should be ensured that pass hooks are maintained in the names of actual workers. [362 E] 10. The Welfare Fund should be properly administered and in the case of death of workman appropriate assistance should be extended out of the Fund quickly. [362 E, F] 11. In view of the health hazard involved in the manu facturing process, every worker including children, if employed should be insured for a minimum amount of Rs.50,000 and the premium should be paid by the employer and the incidence should not be passed on to the workman. [362 F] 12. The implementation of the scheme within the State in an effective manner would require to be supervised by an independent external agency. The Tamil Nadu State Legal Aid

The petitioner Company was engaged in the business of manufacture of aluminium products and its factory was locat ed at Kalwa in Thane District, obtaining aluminium as raw materials from its another factory, situated In a different State. With effect from 1.10.82 the Company at Kalwa was included in the municipal Jurisdiction of Thane, and prior to that date, the Company did not have to pay any octroi on the raw materials brought into its factory at Kalwa. The respondent Corporation was levying octroi duty on the imports of aluminium raw materials made by the petition er Company at the rate of from 1.10.1982 to 14.4.1987 and from 15.4.87 at the rate of 2%. On 18.5.87 the Thane Manufacturer 's Association made a representation to the respondent Corporation about the increase in octroi rates. The respondent Corporation in Its letter dated 20.11.1987 pointed out that when raw material specified In Entry 77 in Schedule I to the Maharashtra Municipalities (Octroi) Rules imported for use in the manufacture of fin ished goods, It would be subject to the levy of octroi not exceeding 1.25% and not less. On receipt of this letter, the petitioner Company made detailed enquiries and was informed that under Rule 4 of the Rules the goods mentioned In Part IA of the Schedule I1, which were imported, were liable to be subjected to octroi at a lower rate. The Company also noticed further 209 that Part IA of the Rules provided that the goods specified in Entry 77, when imported by an industrial undertaking for use as a raw material for processing within that undertaking and if a declaration in Form 14 was filed, the levy of octroi in such cases would not exceed 12.5% and would not be less than 0.25%. The petitioner, however, had not filed any Form 14 duly filled in and according to it, it acted under a mistake of law and under the bonafide impression that the octroi levied on and recovered by the Corporation at the rate of 1.3% in respect of the period from 1.10.82 to 14.4.87 and at the rate of 2% from 15.4.87 onwards, represented the correct rate. On 8.3.1988 the petitioner Company in its letter to the respondent Corporation stated that under a mistake of law it paid excess amount and same should be refunded. On 16.5.1988, the respondent Corporation replied that as the petitioner Company had not complied with the procedure specified in Part IA of the Schedule 11 to the Rules for availing such concessional rates and therefore the refund could not be sanctioned. On 19.4.1989 the petitioner Company claimed a refund of total amount of Rs. 13,54,101.79 p. The respondent rejected the claim, against which the Company filed a writ petition in the High Court, seeking refund. A Division Bench of the High Court dismissed the writ petition holding that the concessional rate of octroi duty was available only if the declaration in Form 14 was filled with the octroi authorities. Questioning the High Court 's Order, this Special Leave Petition was filed. The petitioner Company contended that a procedural failure should not disentitle the petitioner Company, pro vided, if otherwise the Company could have legitimately claimed. The respondent Corporation submitted that the conces sional rate would be available only if the raw material was utilised by the Company for manufacturing goods within the industrial undertaking; that if a declaration had been filed in proper Form 14 there could have been a 210 scope for verification and in the absence of such a declara tion the question of refunding at this distance of time did not arise; and that the concession should have been availed at the time when it was available, and having failed to avail, the question of claiming the same later did not arise. Dismissing the petition, this Court, HELD:. A verification at the relevant time by the octroi authorities becomes very much necessary before a concession can be given. In the absence of filing such a declaration in the required Form 14, there is no opportunity for the authorities to verify. Therefore the petitioner Company has definitely failed to fulfil an important obliga tion under the law though procedural. [214 F] 2. The verification at the time when the raw material was still there is entirely different from a verification at a belated stage after it has seized to be there. May be that the raw material was used in the industrial undertaking as claimed by the petitioner Company or it may not be. In any event the failure to file the necessary declaration has necessarily prevented the authorities to have a proper verification. [214 H, 215 A] 3. A concession has to be availed at the time when it was available and in the manner prescribed. [216 D] 4. The concession can be granted only if the raw materi al is used in the industrial undertaking seeking such con cession. For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification. Fail ure to file the same would automatically disentitle the Company from claiming any such concession. [218 C D] 5. In the instant case the octroi duty paid by the petitioner Company would naturally have been passed on to the consumers. Therefore, there is no justification to claim the same at this distance of time and the court in its discretion can reject the same. [218 G] kirpal Singh Duggal vs Municipal Board Ghaziabad, [ ; ; HMM Limited and another vs Administrator, Bangalore City Corporation and another, [1989]4 SCC 640, distinguished. Kedarnath Jute Manufacturing Co. vs Commercial Tax Officer, Calcutta 211 and Ors.; , , followed. Orissa Cement Ltd. vs State of Orissa & Ors., AIR 1991 SC 1676, referred to. Dictionary of English Law by Earl Jowitt; Halsbury 's Laws of England, 4th Edn. Para 198, referred to.

The writs referred to in article 226 are intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission or error or excess has resulted in manifest injustice. However exten sive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the, deci sions impugned and decide what is the proper view to be taken or the order to be made. The Motor Vehicles Act contains a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant and prescribing appeals and revisions from subordinate bodies to higher authorities, and the issue or refusal of permits is solely within the discretion of the transport authorities; it is not a matter of right. Where, in a dispute between two rival claimants for running through a particular route five buses, which each of them alleged he had purchased from a third person, the Central Road Traffic Board, Madras, after calling for a report from the Regional Transport Officer and considering several circumstances that had a material bearing on the case, restored the permanent permits which had been granted to one of the claimants, but on an application by the other claimant under article 226 of the Constitution to the High Court of Madras for a writ of certiorari quashing the orders of the Regional Transport Authority, the Central Road Traffic Board and the State of Madras, and for a writ of mandamus to the respondents to transfer, issue or grant 584 permanent permits to the petitioner, the High Court set aside the order of the Central Traffic Board, relying mainly on the fact that the petitioner 's title to the five buses had been established and directed the Regional Traffic Authority to grant to the petitioner permits in respect of the five buses: Held, that under the Motor Vehicles Act, the issue of a permit for a bus was not dependent on the ownership of the bus but on other considerations also, and as the Central Traffic Board had issued an order granting permits to one of the claimants after considering all circumstances the High Court acted erroneously in interfering with the Order of Traffic Board on an application under article 226 and in any event the order of the High Court issuing a direction to the Regional Transport Authority to grant permits to the other party was clearly in excess of its powers and jurisdiction. The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribes an elaborate procedure for their regulation. No one is entitled to a permit as of right even if he satisfies all the prescribed conditions. The grant of a permit is entirely within the discretion of the transport authorities and naturally depends on several circumstances which have to be taken into account.

The respondent had made an application under section 53 C Of the Companies Act, 1913, with an alternative prayer for winding up against the appellant company, to the District judge, Poona, who had been authorised under the Act to exercise jurisdiction. While the application was pending the Companies Act, 1913, was repealed by the . The appellant company thereupon applied to the District judge to dismiss the application on the ground that he had ceased to have any jurisdiction to deal with the application on the repeal of the Of 1913. Held, that section 6 of the General Clauses Act preserved the jurisdiction of the District judge to deal with the application under section 153 C Of the Indian Of 1913, notwithstanding the repeal of that Act. Section 647 of the did not indicate any intention to affect the rights under the Indian of 19I3, for section 658 of the of 1956 made section 6 of the General Clauses Act applicable notwithstanding anything contained in section 647 of that Act. 86 Section 24 of the General Clauses Act does not put an end to any notification. It does not therefore cancel the notification issued under the Indian of I9I3 in so far as that notification empowered the District judge to exercise jurisdiction under section 153 C of the Indian of I9I3 even though under section 10 of the of 1956, a District judge can no longer be empowered to exercise jurisdiction under (a) sections 1397 to 407 of the , which correspond to section I53 C Of the Indian , 19I3 or (b) in respect of the winding up of a company with a paid up share capital of not less than Rs. 1,00,000/ which the appellant company was.

iminal Appeal No. 119 of 1960. Appeal by special leave from the judgment and order dated April 14, 1960, of the Madras High Court in Cr. Petition No. 246 of 1960, D. N. Mukherjee, for the appellant. M. section K. Sastri and T. M. Sen, for respondent. April 19. The Judgment of the Court was delivered by RAGHUBAR DAYAL,, J. This appeal, by special leave, is against the order of the Madras High Court dismissing the application for quashing the commitment of the case against the appellant, to the Court of Session, for trial of offences of criminal conspiracy to cheat under section 120 B read with section 420, Indian Penal Code, and for the offence of forgery committed in pursuance of that conspiracy. The criminal conspiracy is alleged to have been committed at Calcutta. The other offences in pursuance of the conspiracy are alleged to have been committed within the jurisdiction of the Court of Session at Madras. The quashing of. the commitment was sought on the ground that, the Courts at Madras had no jurisdiction to try the offence of conspiracy. The High Court did not accept the contention and dismissed the application. The sole question for consideration in this appeal is whether the offence of conspiracy alleged to have been committed at Calcutta can be tried by the Court of Session at Madras. We have held this day, in Purushottamdas Dalmia vs The State of West Bengal (1) that the Court having (1) [1962] 2S.C.R. 101. 118 jurisdiction to try the offence of criminal conspiracy can also try offences committed in pursuance of that conspiracy even if those offences were committed outside the jurisdiction of that Court, as the provisions of section 239, Criminal Procedure Code, are not controlled by the provisions of section 177, Criminal Procedure Code,which do not create an absolute prohibition against the trial of offences by a Court other than the one within whose jurisdiction the offence is committed. On a parity of reasoning, the Court having jurisdiction to try the offences committed in pursuance of the conspiracy, can try the offence of con, ,piracy even if it was committed outside its jurisdiction. We therefore hold that the order under appeal is correct and, accordingly, dismiss this appeal. Appeal dismissed.

The appellant was committed to the Court of Session at Madras for trial under section 120 B read with section 420 of the Indian Penal Code and for committing the offence of forgery in pursuance of that conspiracy. The Criminal conspiracy was alleged to have been committed at Calcutta, while the other offences in 117 pursuance thereof were committed at Madras. It was urged on behalf of the appellant that the Madras Court had no jurisdiction to try the offence of criminal conspiracy. Held, that the court having the jurisdiction to try the offences committed in pursuance of the conspiracy, has also the jurisdiction to try the offence of criminal conspiracy, even though it was committed. outside its territorial jurisdiction. Purushottamdas Dalmia vs State of wesst Bengal; , , applied.

In pursuance of a search warrant issued under section 6 of the Taxation on Income (Investigation Commission) Act, 1947 authorising four Officials to search two premises in Calcutta, they went there and forcibly broke open the entrance door of a flat in one case and the lock of the door of a room in the other case. On being challenged by the darwan and the proprietor of the respective premises they were alleged to have tied the darwan with a rope, causing him injuries and to have assaulted the proprietor mercilessly with the help of two policemen and kept him in a lock up for some hours. Two separate complaints one by the darwan and the other by the proprietor under sections 323, 342, etc., of the Indian Penal Code were instituted before two different Magistrates. The common question for determination in both the complaints was whether under the circumstances sanction was necessary under section 197 of the Code of Criminal Procedure. Held that sanction was necessary as the assault and the use of criminal force related to the performance of the official duties of the accused within the meaning of section 197 of the Code of Criminal Procedure. article 14 does not render section 197 of the Code of Criminal Procedure ultra vires as the discrimination on the part of the Government to grant sanction against one public servant and not against another is based on a rational classification. A discretionary power is not necessarily a discriminatory power and abuse of power is not easily to be assumed where the discretion is vested in the Government and not in a minor official. In the matter of grant of sanction under section 197 of the Code of Criminal Procedure, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner with the discharge of official duty. In other words there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the 926 accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of this performance of his duty. The need for sanction under section 197 of the Code of Criminal Procedure is not necessarily to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry, or even in the course of the prosecution evidence at the trial, may establish ,the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. Gill and another vs The King, (1948) L.R. 76 I.A. 41, Hori Ram Singh vs The Crown, , 178, Albert West Meads vs The King, (1948) L.R. 75 I.A. 185, Lieutenant Hector Thomas Huntley vs The King Emperor, (1944) F.C.R. 262, Shreekontiah Bamayya Munipalli vs The State of Bombay, ; , Amrik Singh vs The State of PEPSU, ; , Sarjoo Prasad vs The King Emperor, , Jones vs Owen, (1823) L.J. Reports (K.B.) 139 and Hatton vs Treeby, , referred to.

Since the matters are similar, the facts of W.P. No. 1679 of 1973 are as follows: The petitioner was arrested section 3, sub section (1) and (2) of the . The grounds of detention were that the petitioner, on 3 7 72, alongwith his associates kept concealed 20 bundles of Telegraph copper wire in his court yard under ground with a view to dispose the same at an opportune moment. The said telegraph wire were recovered on 3 7 72 on the basis of the confession made by his associates. The petitioner was, therefore, arrested because he was acting in a manner prejudicial to the maintenance of supplies and services essential to the community. The detention order was challenged on various grounds : (i) That the counter affidavit on behalf of the State of West Bengal was sworn by the Deputy Secretary and not by the District Magistrate, on the basis of whose subjective satisfaction the detention order was made and therefore, it was illegal. (ii)From the counter affidavit, it was clear that there were "reliable informations" and material other than the solitary ground of detention communicated to the detenu and so, the detenu was unable to make an. effective representation. Therefore, the detention order was violative of clause (5) of article "I of the Constitution of India etc. Allowing the petitions, HELD : (1) When a Rule Nisi is issued in a habeas corpus petition, it is incumbent upon the State to satisfy the court that the detention of the petitioner was legal and in conformity not only with the mandatory provisions of .he Act, but is also in accord with the requirements of Cl. (5) of article 22 of the Constitution. [262 EJ Niranjan Singh vs State of Madhya Pradesh A.I.R. 1972 S.C. 2215, referred to. (2)Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective standards, it is all the more desirable that in response to the Rule Nisi, the counter affidavit on behalf of the State should be sworn to by the District Magistrate or the authority on whose subjective satisfaction the detention order was made. If for sufficient reason shown to the satisfaction of the Court that the affidavit of the person who passed the detention order could not be furnished, the counter affidavit should be sworn by some responsible officer who personally dealt with the case in the Govt. Secretariat etc. [262 E F] In the present case, the deponent did not swear that he had at any relevant time personally dealt with the case of the detenu and secondly, the explanation given for not furnishing the affidavit of the District Magistrate due to his transfer from that District, was far from satisfactory. Ranjit Dam vs State of West Bengal A.I.R. 1972 S.C. 1753 and J. N. Roy vs State of West Bengal A.I.R. 1972 S.C. 2143 referred to. 259 (3)The failure to furnish the counter affidavit of the Magistrate who passedthe order of detention is an impropriety. However, in most cases, it mayDot be of much consequence; but in a few cases, for instance. where mala fides or extraneous considerations are attributed to the detaining authority, it may, taken in conjunction with other circumstances, assume the shape of a serious infirmity. [263 C] (4)In the counter affidavit, it was mentioned that the detenu was a "veteran copper wire stealer" and there were "reliable information" before the District Magistrate. Those reliable information were withheld. The words . veteran copper wire stealer" also implied a long course of repetitive, thievery of copper wire, it is manifest that but for those "reliable information" showing that the detenu was repeatedly and habitually stealing copper wire, the District Magistrate might not have passed the detention order in question. Further, from the 'Criminal Biography, supplied by the State, it was clear that all material particulars of the ground of detention necessary to enable the detenu to make an effective representation were not communicated to the detenu. Hence, the impugned order of detention is violative of article 22(5) of the Constitution and therefore, liable to be quashed. Similarly, the other two petitions were also allowed on the ground that material particulars were not communicated to the detenues and therefore, the detentions were illegal. [263 G 264 C]

Smuggled gold recovered from the appellants was confiscated and a penalty imposed on them. Thereafter the appellants were tried and convicted under section 167(81) of the Sea ' Customs Act. In their statements made to the customs authorities, the appellants had practically admitted the prosecution case and these statements were put in evidence. An appeal to the Sessions Judge and a revision to the High Court were dismissed. In appeal to this Court: HELD: (i).Since the statements made to the customs authorities bore the signature of the appellants which were admitted, they must be taken to be proved by such admission and no further evidence was necessary. [858C] (ii) Customs officers are not in the circumstances arising in this case police officers and statements mad.e to them were not inadmissible under section 25 of the Evidence Act. Section 24 would apply, as customs authorities are persons in authority; and such statements would be inadmissible if vitiated by inducement, threat or promise. [858E F] State of Punjab vs Barkat Ram, ; , followed. (iii) Section 186 of the , which is merely an enabling section, is no bar to a prosecution for an offence under the Act in connection with a matter in which the award of confiscation, penalty or increased rate of duty has been made. [859F, G] Leo Ray Frey vs Superintendent of District Jail ; , referred to. (iv) Once the gold recovered is proved to be smuggled whosoever is found to have brought it and dealt with it, thereafter, knowing it to be smuggled must be held to have had the intention of evading duty or violating the prohibition or restriction. [860C D]

The appellants were charged with the offences of criminal conspiracy and criminal breach of trust in respect of 80 bags of wheat. They were ,convicted by the High Court for various offences under the Penal Code and the Prevention of Corruption Act. The evidence disclosed that there were some irregularities in the matter of keeping the records relating to storage of stocks at the storage sheds. It was therefore contended in .appeal by special leave, to this Court, that the evidence should be reviewed to see if the prosecution had established by unimpeachable evidence that the 80 bags were in fact not received at the storage shed and, that no presumption should be drawn against the appellants for their failure to give evidence as to where and to whom the bags were delivered. HELD : Non appearance of an accused as a witness in his own defence does not give rise to any presumption against him. [141 C] HELD, also : Negative onus can also be discharged by circumstantial evidence if it is trustworthy and with unerring certainty establishes facts and circumstances, the combined effect of which leads to the only safe inference of guilt. The court has, however, to be watchful to ensure that conjectures or suspicions do not take the place of proof. The chain ,of circumstantial evidence must be complete and admit of no reasonable conclusion consistent with the innocence of the accused. [141 E F] HELD further : under article 136 this Court does not normally proceed to review the evidence in criminal cases unless the trial is vitiated by some illegality or material irregularity of procedure or the trial is held in violation of rules of natural justice resulting in unfairness to the accused or the judgment or order under appeal has resulted in grave miscarriage of justice. This Article reserves to this Court a special discretionary power to interfere in suitable cases when for special reasons it considers that interference is called for in the larger interests of justice. [145 A C] HELD further : This Article cannot be so construed as to confer ,on a party right of appeal where none exists under the law. [145 C] In the present case there were irregularities in the storage records and the evidence was looked into see if the charge as framed was proved. [145 C D] [An examination of the entire evidence, oral and documentary, however, showed, that there was enough evidence to support the conviction and that the irregularities were unimportant.] [145 A] Chidda Singh vs State of Madhya Pradesh, Cr. A. No. 125 of 1967 dt. 12 1 1968, referred to.

The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void. Pending the suit, a Receiv er was appointed by Justice A.N. Sen. While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties. The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats. Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958. After the expiry of the period of lease, Grindlays continued to be the tenant. On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979. Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily. The learned Single Judge was not inclined to order summary eviction as prayed for. An appeal was filed before the Division Bench. The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court. Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules. In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act. On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction. Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '. Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property. A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to. (2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy. Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy. [972C D] Konijeti Venkayya & Anr. vs Thammana Peda Venkata Subba rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to. (3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years. It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules. Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy. [972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd., , referred to. (4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy. But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form. The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act. [974G H; 975A, C] Damadilal & Ors. vs Parshram & Ors., [1976] Supp. SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ; , referred to. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977. Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors., , distinguished. 964 (5) In the case of Tatas, it was a new tenancy. Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred. Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt. Ashrafi Devi & Anr. vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.

The appellants were tried on a complaint by the respondent before an Honorary Magistrate for offences under sections 420, 468, 406 and 465/471 Indian Penal Code and acquitted. The Magistrate rejected the complainant 's request to frame a charge under section 467 Indian Penal Code, and commmit the accused to the Court of Sessions. The complainant appealed to the High Court against the acquittal. The High Court held that the evidence prima facie disclosed an offence under section 467 and even though the complaint did not mention that section it was the duty of the Magistrate to commit the case to sessions. It accordingly set aside the acquittal, and ordered a retrial. The appellants came to this Court by special leave. It was contended on behalf of the appellants that the trial before the Magistrate, in so far as it went, was with jurisdiction and it could not be set aside merely because the High Court thought that a charge under section 467 might be framed, and that such a proceeding is not contemplated. by section 423(1) of the Code of Criminal Procedure. HELD: (i) If the Magistrate had applied his mind to the relevant evidence he would have seen that the main offence was under section 467 read with section 471and the other offences were subsidiary. It was thus not proper for him tochoose for trial only such offences over which he had jurisdiction andto ignore the other offence over which he had none. His duty clearly wasto frame a charge under section 467 and to commit the appellants to stand their trial before the Court of Sessions. [259 G] (ii)It is wrong to contend that the High Court had no jurisdiction in the matter because the trial before the Honorary Magistrate (in so far as it went) was with jurisdiction. If it were so there would be no remedy whenever a Magistrate dropped serious charges ousting him of his jurisdiction and tried only those within his jurisdiction. [260 B C] Dr. Sanmukh Singh Teja Singh Yogi vs Emperor, , approved. However hesitant the High Court may be to set aside an order of acquittal and to order retrial, it has jurisdiction under the code to do so if the justice of the case clearly demands it and a case of omission from the charge of a serious offence prima facie disclosed by the evidence, is one of those circumstances in which the power can properly be exercised particularly when the charge for the offence it framed would have ousted the jurisdiction of the trial court. [260 D E] Abinash Chandra Bose vs Bimal Krishna Sen, A.I.R. 1963 S.C. 316, Ukha Kolhe vs State of Maharashtra, A.I.R. 1963 S.C. 1531, Barhamdeo 256 Rai and others vs King Emperor, A.I.R. 1926 Pat. 36 Balgobind Thakur and others vs King Emperor, A.I.R. 1926 Pat 393 and K.E.V. Razya Bhagwanta, , referred to.

In a writ petition filed under article 226 of the Constitu tion impugning his dismissal from service, the respondent contended that since he had not been given a reasonable opportunity of meeting the allegations against him, his dismissal was void. writ petition was dismissed. Thereupon, the respondent flied a suit in a civil court challenging his dismissal on the ground, among others, that since he had been appointed by the Inspector General of Po lice, his dismissal by the Deputy Inspector General of Police was wrong. The State took the plea that the suit was barred by res judicata. Dismissing the suit, the trial court held that it was not barred by res judicata. The first appellate court dismissed the respondent 's appeal. Purporting to follow a line of decisions of this Court, the High Court held that only that issue between the parties would be res judicata which was raised in the earlier writ petition and was decided by the High Court after contest and since in this case the respondent did not raise in the earlier writ petition the plea of competence of the Deputy Inspector General of Police to dismiss him. the parties were never at issue on it and that the High Court never consid ered and decided this issue in the writ petition. On the question of invoking the principle of constructive res judicata by a party to the subsequent suit on the ground that the matter might or ought to have been raised in the earlier proceedings, the High Court held that this question was left open by the Supreme Court in Gulabchand Chhotalal Parikh vs State of Bombay ; , and allowed the respondent 's appeal. Allowing the States appeal to this Court. HELD: The High Court was wrong in its view because the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in Devi Lal Modi vs Sales Tax Officer Ratlam and Others ; it was not necessary to reiterate it in Gulabchand 's case as it did not arise for consideration in that case. The clarificatory observation in Gulabchand 's case was misunderstood by the High Court in observing that the matter had been left open by this Court. The doctrine of res judicata is based on two theo ries: (i) the finality and conclusiveness of judicial deci sions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be pro tected from multiplication of litigation. [430 D] 2. (a) In certain cases, the same set of facts may give rise to two or more causes of action. In such cases res judicata is not confined to the issues which the Court is actually asked to decide but covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. This rule has sometimes been referred to as constructive res judicata which is an aspect or amplification of the general principle. [431 A] (b) Section 11 of the Code of Civil Procedure, with its six explanations, covers almost the whole field, but the section has, in terms, no application to a petition for the issue of a high prerogative writ. [431 D] (c) Although in the Amalgamated Coalfields Ltd. and others vs Janapada Sabha, ; this Court held that constructive res judicata being a special and artifi cial form of res judicata should not generally be applied to writ petitions, in Devilat Modi 's this Court held that if the doctrine of constructive 429 res judicata was not applied to writ proceedings, it would be open to a party to take one proceeding after another and urge new grounds every time, which was plainly inconsistent with considerations of public policy. The principle of constructive res judicata was, therefore, held applicable to writ petitions as well. [433 G & 434 D] 3. The High Court missed the significance of these deci sions and relied upon L. Jankirama lyer and 'Others vs P.M. Nilakanta lyer and Others [1962] Supp. 1 S.C.R. 206 which had no bearing on the controversy. In Gulabchand 's case, this Court observed that it did not consider it necessary to examine whether the principle of constructive res judicata could be invoked by a party to the subsequent suit oft the ground that a matter which might or ought to have been raised in the earlier proceeding but was not so raised therein could be raised again relying on which the High COurt concluded that the question was left open by this Court. This in turn led the High Court to hold that the principle of resjudicata could not be made applicable to a writ petition. [435 E F] In the instant case, the respondent did not raise the plea that he could not be dismissed by the Deputy Inspector General of Police. This was an important plea which was within his knowledge and could well have been taken in the writ petition. Instead he raised the plea that he was not afforded a reasonable opportunity of meeting the case in the departmental inquiry. It was therefore not permissible for him to take in the subsequent suit the plea that he had been dismissed by an authority subordinate to that by which he was appointed. That was clearly barred by the principle of constructive res judicata and the High Court erred in taking a contrary view. [436 A B]

Appeal No. 147 of 1958. Appeal from the judgment and decree dated January 4, 1955, of the Allahabad High Court in Special Appeal No. 36 of 1955. A. V. Viswanatha Sastri, C. P. Lal and G. C. Mathur, for the appellants. K. B. Bagchi, section N. Mukherjee for P. K. Bose, for the respondent No. 1. 1961. April 18. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by certificate raises the question of construction of a will executed by one Pyare Mohan Bannerji. 29 The facts giving rise to this appeal lie in a small compass and they are as follows: Pyare Mohan Bannerji died in October 1874 leaving behind him considerable property. He executed a will dated February 12, 1874, making various bequests, including the payment of certain amounts to the first respondent, Uttar para Hitakari Sabha. After his death, his widow held the property for life till her death on March 25, 1945. Thereafter, the property went into the possession of the appellants, who are the heirs at law of the testator. On March 17, 1950, the first respondent, Uttarpara Hitakari Sabha (hereinafter referred to as the Sabha) filed an application in the High Court of Judicature at Allahabad under section 10 of the Official Trustees Act (Act II of 1913) claiming that the late Pyare Mohan Bannerji had created a trust by his will and praying that an official trustee be appointed to be the trustee of the properties of the trust. This was registered as Testamentary Case No. 9 of 1950. The appellants contested the claim of the Sabha and contended, inter alia, that no trust had been created by the testator and that the appellants, being the legal heirs of the testator, were entitled to succeed to the entire pro perty left by him. Mootham, J., as he then was, who heard the said case at the first instance, held that by his last will Pyare Mohan Bannerji created a trust in favour of the Sabha, and appointed the Official Trustee a trustee of all the properties left by Pyare Mohan Bannerji specified in Schedule B to the petition. On appeal, a division bench of the said High Court, consisting of Malik, C. J., and Agarwala, J., agreed with Mootham, C. J., that the will created a trust in favour of the Sabha; but the learned Judges held that the Sabha was entitled only to a half share in the cash and properties pertaining to the estate of the said testator, and appointed the Official Trustee as trustee only in regard to the said share: on that basis, suitable directions were given. The first respondent accepted that position, but the appellants, i.e., the persons claiming to be the heirs at law, preferred the present appeal against the judgment of the High Court in so far as it went against them. 30 Learned counsel for the appellants contends that under the will not a trust but only a charge was created in favour of the first respondent and, therefore, the first respondent could not invoke in aid the provisions of section 10 of the Act. Section 10 of the Act reads: "(1) If any property is subject to a trust other than a trust which the Official Trustee is prohibited from accepting under the provisions of this Act, and there is no trustee within the local limits of the ordinary or extraordinary original civil jurisdiction of the High Court willing or capable to act in the trust, the High Court may on application make an order for the appointment of the Official Trustee by that name with his consent to be the trustee of such property. " It is common case that if the will created a trust, it would not fall under any one of the exceptions mentioned in the section. Therefore, the only question is whether the will created a trust or a charge in favour of the first respondent. The concepts of trust and charge are well defined. A trust is "an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another, or of another and the owner. " Where property "of one person is made security for the payment of money to another, the latter person is said to have a charge on the property. " The boundaries between the two concepts are well demarcated; but, more often than not, courts found considerable difficulty in construing a particular document to place it in one or other of the categories. The same difficulty was encountered even in England. The test laid down for marking out the one from the other by some of the authoritative text books on the subject may be useful in construing the will in question. In Halsbury 's Laws of England, 2nd Edn. 33 (Lord Hailsham), the distinction between the two concepts has been stated thus at p. 98: "Where property is given to a person upon condition that he does a certain act or confers a 31 certain benefit on another person, the condition may constitutes a trust if it is directed to be, or must necessarily be, performed and satisfied out of the property, and consequently imposes a fiduciary obliga tion in respect of the property; but it will not be construed as a trust if this is not the case and the condition merely imposes a collateral duty. Similarly, a devise of land upon condition of paying a sum of money or an annuity does not create a trust, though it may create a charge. A charge does not in itself create a trust, but it may do so if it is coupled with other trusts or the context, otherwise so requires. Conversely a trust may amount merely to a charge." Lord St. Leonards points out (Sugden on Powers, 7th Edn., p. 122) that, "What by the old law was deemed a devise upon condition, would now, perhaps, in almost every case be construed as a devise in fee upon trust, and by this construction, instead of the heir taking advantage of the condition broken, the cestui que trust can compel an observance of the trust by suit in equity. " In The Commissioners of Charitable Donations and Bequests vs Wybrants (1) a testator had devised lands to trustees and their heirs upon trust to grant and convey the same to the use of John Wybrants for life 'subject nevertheless to and charged and chargeable with ' four annuities, three of which were to be paid to charitable institutions and the fourth to the poor of a parish. In construing that provision, the Lord Chancellor said at p. 285: "It certainly is not necessary to use the word 'trust ' in order to create an express trust. I do not intend to lay it down that every charge creates a trust, although it imposes a burden; but a charge may create a trust; depending on the nature of the charge. In Bailey vs Ekins (2) Lord Elton said he was confident Lord Thurlow 's opinion was that a charge (of debts) is a devise of the estate, in substance and effect, pro tanto upon trust to pay the (1) (1845) 69 R.R. 278. (2) , 323. 32 debts:and this is supported by the current of authorities. The principle is no less powerful in the case of charities, particularly where the charity is to a fluctuating, uncertain body, like the poor of a parish. The testator gives the estate to one, subject to this charge. Who is to pay the annuities but the person who is liable to the burden: and this, in the case of a charity, impresses him with the character of a trustee for the charity. By the ancient rule of equity, no one could acquire an estate, with notice of a charitable use, without being liable to it. " The fact that a beneficial interest is also created in favour of the trustees in respect of the property subject to a trust does not make the transaction any the less a trust. The law permits a person to bequeath his property to another subject to a trust in respect of a portion of the income in favour of a third party or a charity. On this subject in Lewin on Trusts, it is stated at P. 133: "Upon this subject a distinction must be observed between a devise to a person for a particular purpose with no intention of conferring the beneficial interest, and a devise with the view of conferring the beneficial interest, but subject to a particular injunction. " So too, Tudor in his book on Charities, 5th Edn., says much to the same effect at p. 52: "A charitable trust may be made to attach to a part of the property only, or it may be limited to particular payments directed to be made out of the income, as in the numerous cases where property has been given to a college, or municipal corporation, or city guild, upon trust or to the intent that certain specified charitable payments shall be made or subject to or charged with certain charitable payments. In these cases, as will be seen, the donees as a rule take beneficially, subject only to the specified charitable payments. " The said tests may afford a guide to ascertain whether a document creates a charge or a trust; but they are subject to the fundamental rule of construction that a trust may be created in language sufficient 33 to show the intention, and no technical words are necessary; the said intention must be gathered from a fair reading of the provisions of the document. In the light of the foregoing discussion, let us look at the provisions of the will to ascertain the express intention of the testator. At the time the testator executed the will he had a wife, and a nephew by name Sital Prasad Chatterji, but no children. He had many other close relatives and dependents. He was also charitably disposed. He executed the will making suitable provision for his wife, nephew, relatives and for charities. He could carry out his intention in two ways: he could bequeath his entire property to his widow and nephew subject to a fiduciary obligation imposed on them to pay certain amounts to the relatives and the charities; or, he could give the entire property to his widow and nephew subject to the payment of certain amounts charged on the said property. The question is, what did he intend to do by this document? He did not use either the word "trust" or "charge" and, therefore, we must gather the intention only from the circumstances obtaining at the time the document was executed and the recitals found therein. Under the will the testator made the following bequests depending upon different contingencies: Firstly, the property was given to his wife and nephew in equal shares for their lifetime subject to the payment of all his debts, annuities and charges; it is also provided therein for the sale of a standing jungle in Doomree and Sukhiae in the Gorakhpore District for the purpose of discharging the debts. The second contingency related to the event of the testator and his nephew begetting son or sons; in that event, after the lifetime of his wife and nephew the son or sons of his nephew would get one fourth share subject to their paying one fourth of the annuities and charges, and whole of the remainder was given to his son or sons subject to their paying the remaining three fourths of the annuities and charges. The third contingency related to the testator getting no children, but his nephew having sons; in that event, after the 34 death of his wife and nephew, the whole of his property would go to the said son or sons subject to the said annuities and charges. In the event of the testator having children and the nephew having no son or sons, after the death of his wife and nephew, the property would go to his children subject to the payment of annuities and charges mentioned in the first portion of the will. The last contingency contemplated was that neither the testator nor his nephew had any issue; in that event the whole of the property was given to his legal heirs subject to the payment of annuities and charges. The quantum of bequests made in favour of the Sabha expanded from contingency to contingency. During the lifetime of the nephew and the widow, the said Sabha got rupees fifteen per month. In the event of either the testator or his nephew not having any children, the direction was that the said Sabha should get rupees fifty per month. In that contingency not only the said Sabha but any other institution which took its place ' would get the said amount. It was also mentioned that the amount should be given only to be spent in paying the school fees of indigent boys of Coterie reading in the Ooterpara School and whose parents or guardians might not have the means to pay their school fees. On the happening of the last contingency, that is, both the testator and his nephew dying without children, his legal heirs took the property subject to the payment of half of the net income to the said Sabha or any institution which might take its place. The said amount was directed to be paid thus: "Rupees fifty per month in payment of schooling fees of indigent boys of Ooterpara reading in the Ooterpara school and the balance, if any, as scholarships to persons resident of Ooterpara or failing such of Bengal who after passing the entrance examination of the Calcutta University may wish to learn practical agriculture or Chemistry or Mechanics. " At present it is common case that all the relatives for whom provision was made in the will passed away, that there are no daughters of testator 's nephew and that the Sabha is the only institution entitled to receive the 35 amounts provided for under the will. We are, therefore, only concerned with the question whether a trust was created in favour of the first respondent or not, on the happening of the last contingency, namely, the testator leaving no children and his nephew no sons. On the happening of that event the property passed to his legal heirs. When that stage was reached the testator was more interested in charities than to make provision for persons for whom he had love and affection. The amount was payable to the Sabha or any other institution which might take its place. Further, there was a direction that the said amount should be spent towards specified charitable purposes. The direction was couched in an elastic form to prevent the charitable object being defeated. The charity was conceived to be a permanent one and it was necessary that the regular payment of the amount was secured. It is, therefore, clear that under the will, on the happening of the said contingency, the testator clearly intended that his legal heirs should regularly pay half the net income to the first respondent so that the specified charities may be carried out perpetually. That object would not be achieved if the first respondent was placed in the position of a creditor with a charge on the property with an off chance of the charge being defeated by a bonafide purchaser for value of the property bequeathed to the legal heirs. Learned counsel emphasized the fact that under the will the first respondent had to spend the moneys for specified objects and not the legal heirs and contended that the first respondent might be in the position of a trustee in respect of the amounts received from the legal heirs, but the legal heirs were not trustees in respect of the charity. The question is not whether the legal heirs, or the first respondent, are the trustees in respect of the fund after it reached the hands of the first respondent; but the question is whether the legal heirs, as owners of the property, were under a fiduciary obligation to pay the said amount for charitable purposes. Having regard to the circumstances visualized at the time the last contingency happened, 36 the fluctuating amount the donees had to pay, the permanent nature of the charity and the declared intention of the testator to pay as much as half the net income towards the carrying out of the said charitable object, we hold that the legal heirs took the property of the testator subject to a trust rather than a charge. No other question arises in this appeal. For the foregoing reasons, we hold that the conclusion arrived at by the High Court is correct. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

One P died in 1874 leaving considerable property. He also left a will which provided for several contingencies; the first respondent was given an interest under each contingency which was enlarged from contingency to contingency. Under the last contingency which happened the entire property was given to the heirs with a direction that half of the income of the property be given to the first respondent. The heirs contended that the direction merely created a charge and not a trust of half of the property. Held, that the direction created a trust rather than a charge. The charity was conceived to be a permanent one and it was necessary to secure regular payments to it. The testator clearly intended that the heirs should regularly pay half the income to the first respondent so that the specified charities may be carried on perpetually. This object could not be achieved if the direction merely created a charge and not a trust. The Commissioners of Charitable Donations and Bequests vs Wybrants , (1845) 69 R. R. 278 and Bailey vs Ekins, 7 Ves. 319, referred to.

The appellants filed three suits (the earliest of the three suits was filed on December 18, 1945) for possession of lands claiming that K, the last owner of the lands died on August 15, 1945. Those suits were dismissed on August 3, 1951, as premature on the ground that the fact of the death of K had not been established. The appellants again instituted three suits in October 1952, December 1952 and May 1953 for the same relief as in the previous suits alleging that the right to sue had ac crued after August 16, 1952, that is, after a period of seven years, under section 108 of Evidence Act; that K died three years before the date. of the filing of the suits; and that they were within time under article 2(b) of the. Schedule annexed to the Punjab Limitation (Customs) Act, 1920 which provides that the period of limitation for a suit for pos session of ancestral immovable property which has been alienated, is three years, if a declatory decree has been obtained, and that period commences from the date on which the right to sue accrues. On appeal, a single Judge of the High Court decreed the suits holding that K having been treated as alive by the High Court when it passed the previous decree in 1951, the conclusion of the lower courts that he had been dead for seven. years before the institution of the suits could not be sustained and also excluded the time spent on the previ ous litigation from 1945 to 1951 under section 14(1) of the Limitation Act. On Letters Patent appeal, the Division Bench held: (1) that the single Judge was in error in ex cluding the time spent on the previous litigation by apply ing section 14(1) of the Limitation Act; (ii) that the words "or other cause of a like nature" occurring in section 14(1) had to be read ejusdem generis with the preceding words "relating to the defects of jurisdiction" and that it was not possible to give the benefit of that provision to the plaintiffs. Dismissing the appeal to this Court (per A.N. Ray, C.J. and Jaswant Singh, J) HELD: (1) Under article 2(b) of the Schedule to the Punjab Limitation (Customs) Act, 1920 in order to be able to succeed the plaintiffs must bring their suits within three years of the accrual of the right to sue (which ac cording to well settled judicial opinion means the accrual of the right to seek relief), namely within three years of the death of K. They had to prove affirmatively that the death of K took place within three years of the institution of the suits. Granting that K has to be presumed to be dead, it cannot be overlooked that under section 108 of the Evidence Act, the precise time of the death is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within seven years lies upon the person who claims the right for the establishment of which the proof of that fact is essential. The plaintiffs had not only, therefore, to prove that K had not been heard of for a period of seven years and was to be taken to be dead, but it also lay heavily on them to prove the particular point of time within seven years when K 's death occurred. This they have failed to prove. In the absence of such proof, it cannot be held that the present suits had not been brought within three years of the accrual of the right to sue. [263 D G] 251 Nepean vs Doe D. Knight ; ; , Jayawant Jivarao Deshpande vs Ramachandra Narayan Joshi (A.1.R. 1916 Born. 300), Lalchand Marwari vs Ramrup. Gir (LIII I.A.24; A.I.R. 1926 P.C. 9), Jiwan Singh vs Kuar Reoti Singh & Anr. (A.I.R. 1930 All. 427), Kottappalli Venkates warla vs Kottapalli Bapayya & Ors. (A.I.R. 1957 A.P. 380), Punjab and Ors. vs Natha & Ors. (A.I.R. and Ram Kali & Ors. vs Narain Singh (A.I.R. 1934 Oudh 298 F.B.) referred to. (2) If K had died beyond three years, from the date of the suits, the suits would be barred by limitation because the appellants cannot claim the benefit of section 14 of the Limitation Act 1908. The three important requirements of the section are: (1) that the plaintiff must have prosecuted the earlier civil proceeding with due diligence; (2) the former proceeding must have been prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature was unable to entertain it and (3) the earlier proceeding and the later proceeding must be based on the same cause of action. [265 D] (3) The contention that the appeals had been rendered untenable as a result of the amendment made to section 7 of the Punjab Customs Power to Contest) Act 1920 by the Amending Act 12 of 1973 has no force and must be rejected. Section 4 of the Act provides that the Act shall not affect any right to contest any alienation or appointment of an heir made before the Act came into force. This section has been left untouched by the Amending Act of 1973. In the instant case, the alienation was made before the 1920 Act came into force and was not affected by that Act. [261 F H] (4) The words "or other cause of a like nature" in section 14(1) take their colour from the preceding words "defect of jurisdiction" according to the rule of ejusdem generis. Therefore, the defect must be of a character analogous to jurisdiction barring the Court from entertaining the previ ous suit. In the instant case, the Court which tried and dismissed the previous suits as premature did not suffer from inability or incapacity to entertain the suits on the ground of lack of jurisdiction or any other ground analogous to the defect of jurisdiction. The exclusion of the period during which the previous suits were pending, could not, therefore, be allowed to the plaintiffs while computing the period of limitation. [265 E; I 1; 266 A] Bhai lai Kishan Singh vs People Bank of Northern India, I.L.R. , Dwarkanath Chakravarti vs Atul Chan dra Chakravarti (I.L.R. and Palla Pattabhira mayya & Ors. vs Velga Narayana Rao (A.I.R. referred to. [Obiter: The causes of action in the previous suits and in the present suits are also different. And hence the appellants cannot press section 14 into service.] Beg, .J. (Dissenting) The Division Bench of the High Court was wrong in ignor ing the effect of the finding of the single Judge that a new cause of action had arisen within three years before the filing of the plaintiffs ' suits. [281 C] The question of time bar or its removal by resorting to section 14(1) of Limitation Act postulates that a point of time from which limitation could run had been ascertained. As that point could not be the date of the death of K, which was unknown the suits could not be dismisses on that ground. [281 D] (1) The single Judge had sufficiently indicated that the cause of action in the previous litigation was different from the one in the later inasmuch as the facts proved in the later case showing that K must be presumed to be dead could not be and were not set up in the earlier suits. The cause of action had not accrued in 1945. The effect of the judgment in the former suits was that these suits were premature, which is not the case in the suits in appeal. The plaints in the later cases set out the case founded on new facts not in existence at the time of the earlier liti gation and expressly stated why the plaintiffs rely on the presumption of death of K. If the previous suits were dismissed on the ground that they were premature, the cause of action could only, be said to have accrued after their institution. [268 G; 269 C] 252 The findings of the single Judge showed that the. plain tiffs were entitled to the benefit of the presumption laid down by section 108 of the Evidence Act. He found that till August 3, 1951 when the judgment of the High Court in the previous suits was delivered, the position was that the death of K had not been established. This meant that on new facts asserted and proved, K could be presumed dead when the subsequent suits were instituted in 1952 and 1953. This presumption of death having become available to the plain tiffs within. three years of the suits and not before, no occasion for applying section 14 of the Limitation Act could arise. The evidence sought to be given in the previous suits was that K had died on a particular date but the evidence in the subsequent suit was not that he had died on a particular date but that he had not been heard of from August 5, 1945 upto the time of filing of the subsequent suits. [269 H; 270 H] Modi Khalil Khan vs Mahboob Ali Mian, A.I.R. 1949 PC 78 at 86 referred to. (2) (a) If causes of action differ from suit to suit, the accrual of the cause of action can also not be tied down to a particular kind of fact such as the date of actual death of the holder of the property. Once it is held that the causes of action differ for purposes of their accrual, their accrual could not be made to depend on facts of one type only. Facts denoting their accrual must differ from case to case. Proof of date of actual death is conclusive. But, where the basis of the right to sue is presumption of death, the. date; of accrual of the right is the date on which that presumption matures. [271 C] Indian Electric Works Ltd. vs James Montosh & ,Anr. ; followed. Rante Surno Moyee vs Shooshee Mokhee Burmonia & Ors. 12 Moore 's I.A. 244, State of Madras V.P. Agencies & Anr. AIR 1960 SC 1309 at 1310 and Mst. Chand Kour vs Partap Singh, , referred to. (b) The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circum stances which constitute either the infringement or the basis of a right and no more. In a wider and more compre hensive sense it has been used to denote the whole bundle of material facts which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit. [272 G] (c) Applying these tests, in the instant case, the causes of action in the earlier and later litigations would be materially different. No cause of action had arisen at all if it is assumed that K had not died at all. K 's death was an essential part of the cause of action. It had to be proved to enable the plaintiffs to put forward their claims to succeed. But proof of the date of death was not essen tial or indispensable for that purpose. It could only become material in deciding whether the right accrued had been extinguished by the law of limitation. Both the narrow and wider sense of the term "cause of action ' would include all those facts and circumstances on the strength of which the plaintiffs urged that they were entitled to the benefit of the obligatory presumption of law contained in section 108 of the Evidence Act. As these were not available to the plain tiffs before the expiry of seven years from August 5, 1945, it was not possible to urge that this cause of action had arisen more than three years before the filing of the suits. Therefore, the date of its accrual could not lie a day earlier than seven years after August 5, 1945 when K was last heard of. [272 G H; 273 A B] (d) It was for the defendants to establish that K was either alive or had died more than three years before the suits were filed. The presumption under section 107 of the Evidence Act could not come to the aid of the defendants when the plaintiffs had established facts necessary to raise the presumption under section 108 of the Evidence Act. [273 E] (e) The suits are not barred by limitation. The plaintiffs discharged their burden as to when the accrual of their cause of action was within the prescribed period of limita tion. If the "media" upon which the plaintiffs rest their cases 253 are different in the previous and subsequent litigations, the causes of action are different. If the alleged date of death of K was the date of accrual of the previous cause of action, the date of accrual of the second could only be something other than the date of death of K, it could not possibly be the same. The other date of accrual could only be subsequent to August 5, 1945 because it was held in the previous suit that the suit was premature on the ground that seven years since K was last heard of had not elapsed then. Since the evidence was that he was last heard of on August 5, 1945, the only possible date of accrual of the subsequent cause of action could be seven years after the date. The suits were filed within three years of that date. [273 H; 274 A C] (3)(a) The term 'right to sue ' occurring in article 2 of Schedule to the Punjab Limitation (Customs) Act 1 of 1920 must be equated with cause of action. " The "date of death" cannot be substituted for the date of accrual of the "right to use". In the Limitation Act the accrual when intended to be tied to the date of some event is specified as the date of that event. In this case, it is not so. It cannot be held that the date of accrual in both sets of suits is one and the same, that is to say, the actual date. of death. [274 D] (b) Wherever the accrual of a right or commencement of a period of limitation, within which a suit must be shown by the plaintiffs to have been brought, could only be estab lished by proving the date of a person 's death, that duty must be discharged by the plaintiffs or the suit will fail. But to carry the doctrine beyond that and to lay down that the date of death must invariably be proved, whenever the question of limitation is raised in such cases must result in stultifying or defeating legal right and wiping out the effects of a statutory presumption. The accrual of a cause of action based on untraceability of the owner could not be said to depend at all on proof of either actual death or the date of actual death of the owner. It accrues as soon as death can be presumed and not a day earlier. [278 D F] (c) It is not in every suit for possession that the com mencement of the date of dispossession must be established by the plaintiffs. It is only in a suit for possession based on the allegation by the plaintiff of his own dispos session that the burden is governed by Art, 142 of the Limi tation Act. [274 G] (d) In the instant ease, the plaintiffs were never in pos session and, therefore,there was no question of their dis possession. It was a pure and simple suit for possession on the basis of title against which the defendants had not even alleged adverse possession. Therefore, there is no need to bring in the actual date of death constructively, as the date of the presumed dispossession or adverse possession has not been asserted anywhere. [275 B] (e) The plaintiffs have asserted and proved that the period of seven years when K was last heard of by those who would in the natural course of events have heard of or about him if he was alive, had elapsed and that their cause of action matured within three years of their suits. Assuming that the concept of adverse possession of the defendants was to be introduced, the legal position is that possession of defendants could not be adverse to K 's reversioners even before K could be presumed to be dead. The defendants them selves had set up. the plea that he must be still deemed to be alive. The plaintiffs could only be required to prove K 's death but not the date of his death or the date of the plaintiffs ' dispossession. Neither cases dealing with recov ery of possession on the plaintiffs ' allegation of their own dispossession nor those where proof of date of death was a necessary statutory duty for showing that the suit was within time; are applicable in these cases. [275 E F] Nepean vs Doe D. Knight (English Reports 150 Exchequer p. 1021), Jayawant Jivanrao Deshpande vs Ramachandra Narayan Joshi, AIR 1916 Bom. 300 & 301. , Lal Chand Marwari vs Mahant Ramrup Git & Anr. AIR 1926 PC 9, Jiwan Singh vs Kuar Reoti Singh & Anr. AIR 1930 All. 427, Kottapalli Venkateswarlu vs Kottapalli Bapayya & Ors. AIR 1957 AP 380 Punjab v Natha AIR 1931 Lab. 582 (FB) & Ram Kali & Ors vs Naraian Singh AIR 1934 Oudh 298 & 299 300, refrered to. 254 (f) It is neither a part of the case of any plaintiff in these cases nor necessary for the success of his case to prove that K died on a particular date or that K died before or after somebody else. The plaintiffs cannot be saddled with the responsibility to prove this date. [279 ,B] (4) The suits were not barred by limitation because the causes of action in the previous litigation and the litiga tion now are different and the subsequent cause of action has arisen within three years before the filing of the suits. Assuming that the suits were filed beyond the period of limitation on the actual basis of their claims the plaintiffs are entitled to succeed because this is a fit case in which section 14(1) Limitation Act could come to the aid of the appellants. They had been asserting repeatedly that the basis of their claim was that although the actual date of death of K could not be proved, yet, he has not been heard of for seven years. That basis having emerged within three years before the filing of the suits, their suits could not be barred by time. If the causes of action did not arise no question of its exceeding by the law of limitation, could emerge. [280 G] The previous suits did not fail for want of jurisdic tion. The delay in bringing the present suits was due to the fact that no court could decree the claim before the cause of action matured. Therefore, the cause of action of a "like nature" to a defect of jurisdiction is present in these cases, since the provision has to be liberally con strued. The defect revealed by the evidence in the latter litigation was that the suits did not lie at all as they were premature. This was a defect reasonably comparable to a want of jurisdiction. [280 A C] India Electric Works Ltd. vs James Mantosh & Anr. ; , followed. (5)(a) If no cause of action could accrue at all unless and until the date of actual death of K was established, there could be no commencement of a period of limitation. The only possible point from which limitation could start framing in these, cases is the date on which seven years expired from the date on which K was last heard of. This was within three years before filing of the suits. [280 D] (b) The issue in the earlier litigation was whether K was actually shown to have died on a particular date. This was quite different from the issue decided now, which was whether K 's whereabouts had remained unknown for seven years so that he could be presumed to be dead. [280 F] ARGUMENTS For the appeliants: The legal presumption under Section 108 was not sought to be raised in the prior suits. It was for the first time raised in the subsequent group of suits instituted in Octo ber, 1952 based on the allegation that Kishan Singh was not heard of since 15th August, 1945. This submission opens the questions (i) when is the presumption of death to be raised and (ii) whether for the purpose of proceedings in which it is raised or any prior proceedings. The presumption is to be raised in the pro ceedings where the question has been raised i.e. the second group of suit. However, there is no presumption as to the time of death of the person whose death is accepted as a result of presumption. The two are distinct matters (i) the legal presumption of death and (ii) the time of death preceding the period when presumption is drawn. The death may be at any time during the preceding period of 7 years the period that has enabled the court to draw presumption of death. The law requires that if one has to establish the pre cise period during these 7 years at which such person died he must do so by evidence. 255 The conclusion of the court of presumption of death based upon disappear ance from 15th August, 1945 cannot be ignored. Death at any time on or after 15th August, 1945 does not in any manner adversely affect the case of the appellants, inasmuch as the parties had instituted suits (of course premature) on 18th December 1945 (other suits some time later decided by a common judgment). If the parties are held entitled to the benefit of deduction of time from 18th December 1945 to 3rd August, 1951, the death of Kishan Singh even if it took place between 15th August, 1945 to any date before 3rd August, 1951 the suit are not barred by limita tion. On the pleading of the parties it cannot be assumed that the presumption of death would justify acceptance of date of death, any time prior to 15th August, 1945. The period of limitation for the suit for possession was 3 years The defendants had not pleaded in the prior suit that the suit was. barred by limitation as instituted. In other words it was not alleged that he had died at any time 3 years prior to the institution of the suit (18th December, 1945). Actually death has not been admitted even on 15th August, 1945. The trial Court and the District Judge held the suit to be time barred not on the ground that his death had taken place at a period exceeding 3 years from the date of the institution of the first suit. They have apparently not ignored the possibility of death having taken place during the period between 18th December, 1945 to 3rd August., 1951. They have held the. suit to be time barred because it was considered that the appellants are not entitled to deduct the stated period spent in the prior suits. Even if it is considered that death had taken place during this period or any time after 15th August, 1945 or during the 3rd August to 31st October, 1952 the suits are not time barred. Preliminary objection was raised by the respondents as to the effect of the Punjab Customs (Power to Contest) Amendment Act, 1973 (Punjab Act 12 of 1973). It was urged that the Act had come into force on 23rd January, 1973, it has retrospective operation and bars all suits to contest alienation also including the suits for possession of the property following a declaratory decree. It was urged that the appeals are barred as a consequence of repeal of the provisions of Punjab Act II of 1920. The contention as to the effect of Act 12 of 1973 is not correct. The previous law on the subject of right to contest alienation of immovable property and the limitation of suits relating to alienation of ancestral immovable property is regulated by two Acts. (1) Punjab Act II of 1920 Described an Act to restrict the powers of the descendents or collaterals to contest an alienation of immovable property; and (2) Punjab Act I of 1920 Described as an Act to amend and consolidicate the law govern ing the limitation of suits relating to alien ations of ancestral immovable property etc. The present Act 12 of 1973 repeals section 6 of Act II of 1920. It also amends section 7 of the aforesaid Act. Effect of the repeal of section 6 and amendment of section 7 merely is that the right to. contest vesting in the collaterals upto 5th degree has been done away with and the suit to contest alienation of ancestral property has been taken away. Under the previous existing law an alienation of non ances tral property could not be contested. Act I of 1920 has also not been repealed. The limitation provided for a suit for possession i.e. 3 years is still an existing provision of the Act. It is obvious that the legislature has retained 256 Act I of 1920 unrepealed so that the benefit of the decrees may be available to all persons under section 8 of the Act and the period of limitation may be retained as before. The effect of the declaratory decree in that the alienation is not binding against the inheritance. The succession never remains in abeyance. A person entitled to succeed to the last male holder is entitled to sue for possession on the basis of right to succession to the property. For the respondent: The principle of res judicata would be immediately attracted if the plaintiffs allege the "same cause of ac tion" and seek the exclusion of the time because the earlier suit was tried on merits by a competent court having jurisdiction and was dismissed holding that 'plaintiff failed to prove that Kishan Singh died on 15th August, 1945. This finding would be binding between the parties in the subsequent suits as they have been given after recording the evidence and a full trial by, the competent court having jurisdiction. Therefore, the plaintiff is barred by principles of res judicata from alleging the accrual of right to sue before the filing of the earlier suits as the same would be res judicata. The plaintiff is estopped from alleging the accrual of same cause of action, therefore, no question of exclusion of time inasmuch as the principle of section 14 of exclusion of time arises only if the cause of action is the same. Section 14 uses the words "the proceeding is founded upon the same cause of action". The language of section 14 of the Limitation Act by using the words "same cause of action" makes it very clear that time can be excluded for the same cause of action only if the earlier suit is dismissed be cause of defect of jurisdiction or other cause of a like nature. On the interpretation of section 14 also the time cannot be excluded for the reason that the earlier suit was dis missed as premature and the new suit was filed on a new cause of action, namely, Alla Singh and his line became extinct on the death of Kishan Singh on 15th of August, 1952 i.e. after the expiry of ' seven years from 15th August, 1945. Since a new cause of action was alleged after the dismissal of previous suit, section 14 cannot be attracted. The words "is unable to entertain it" mean that it is not able to admit the matter for consideration on merits i.e. the. inability is of a formal nature but it does not mean inability to grant relief. From the decisions one principle is deducible that section 14 of the Limitation Act has to be construed harmoniously with section 11 C.P.C. Section 11 C.P.C. bars the filing of a fresh suit on the same cause of action whereas section 14 of Limitation Act allows time to be. excluded in the previous litiga tions was "founded on the same cause of action ' '. Section 12 says that if plaintiff is barred under section 11 C.P.C. to file suit for any cause of action then plaintiff cannot file suit for a such cause of action in any court to which C.P.C. applies. If both. section 14 of Limitation Act and principles of res judicata are to operate then, it should be held that to apply section 14 the earlier suit had been dismissed on a technical ground of jurisdiction, or other cause of a similar nature, court is unable to entertain it without going into the merits of the case. In the present case earlier suits were dismissed because the plaintiff failed to prove the death of Kishan Singh and the extinction of line of Alia. The words used by the High Court at page 302 line 37 are: "The suit had been rightly dismissed as premature" do not mean that Kishan Singh was alive but it means that plaintiffs have not proved the accrual oj cause of action namely the extinction of line of Alia. In these circumstances it is submitted that the suits were not dis missed on the ground of defect of jurisdiction or other cause of similar nature. for which the court was unable to entertain it. Section 14 of the Limitation Act does not apply. Plaintiffs have failed to prove the date of death of Kishan Singh and the extinction of line of Alla within 3 years of the filing of the suit. Suits are therefore time barred. 257 Sections 107 and 108 of the Evidence Act do not help the appellants. Rule of evidence in section 107 is that it is for the plaintiff to prove the death of a person if he was alive within 30 years and section 108 says that burden of proving that a man was ,dive is on the person who alleges he is alive if it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had even alive. In this case the plaintiffs appellants have alleged that Kishan Singh was last heard of on 15th August, 1915 and singe then he is not heard of. The onus is, there fore, on the plaintiff appellant under section 107 of Evidence Act 10 prove as to when Kishan Singh died. It is; Submit ted that Kishan Singh may have died on any date either before 15th August, 1945 or immediately theereafter. There is no presumption that he died on the expiry of 7 years from the date he was last heard. The date of death is thus required to prove by the plaintiff like any other fact. The suits are, therefore, barred by time and should be dismissed plaintiffs ' failure to prove death of Kishan Singh within three years of the filing of suits.

The respondent, who owned agricultural properties in the different districts of Uttar Pradesh, was assessed to agri cultural income tax by the Additional Collector of Banaras. On challenge by way of a petition under article 226 of the Constitution, assessment was quashed by the Allahabad High Court on the ground that the assessing authority had no ,jurisdiction to assess. Under section 6 of the U.P. Act No. XIV of 1956 the assessments by the Additional Collector were validated and a party to the proceedings under Agricultural Income tax Act was given the right to move the Court or authority within the prescribed period to review the proceedings where in the assessments had been set aside on the ground that the assessing authority had no jurisdiction to make the assessment. By section 11 the authority or court so moved was bound to review the order. The State of Uttar Pradesh applied to the High Court for review of its earlier order quashing the assessment. The single judge of the High Court held that section II of the Act did not apply to writ pro ceedings under article 226 of the Constitution. On appeal the Division Bench held that the order for the single judge did not amount to a 'judgment ' under Ch. VIII r.5 cl.10 of the Letter Patent and the Rules of Allahabad High Court and that section 11 of the Act did not apply to proceedings. by way of a writ before the High Court. On appeal by special leave by the State it was contended that the Division Bench was wrong and by an additional statement of case it was sought to be urged that the application for review should be treated as one under order 47 of the Code of Civil Procedure, 2 Held (per Sinha, C. J, Subba Rao, Ayyangar and Aiyar, jj.), that under cl. IO of the Letters Patent of the Allahabad High Court and the Rules of the Court the expression 'judgment ' would even on the narrow view of the expression include the order in the present case whereby the statutory right given to the party was finally negatived and that the Division Bench was in error in holding that it was not a 'judgment '. Held, further, that the proceeding under article 226 of the constitution were neither 'proceedings ' under the Act nor proceedings on the basis of the Act. The proceedings under article 226 of the Constitution were independent and original proceeding and not a continuation of the assessment proceedings. Venkataratnam vs Secretary of State for India, (1930) I.L.R.53 Mad. 979, Ryots of Garabandha vs The Zamindar of Parlakimedi I.L.R. , Ramayya vs State of Madras, A.I.R. 1952 Mad. 300, Moulvi Hamid Hassan Nomani vs Banwarilal Coy. (1947) II M.L.J. 32, Budge Budge Municipality vs Mangru (1952) 57 C.W.N.25 and Satyanarayanamurthi vs 1.T. Appellate Tribunal, A.I.R.1957 Andhra 123, referred to. The Act had to be interpreted consistently with the Constitution and there was no power in the State Legislature to compel the High Court to act in a particular way in exercise of its jurisdiction under article 226 of the Constitu tion. Section, II could only apply to cases 'Where any court or authority other than the High Court in exercise of its jurisdiction under article 226 of the Constitution, had decided the matter. Held, further, that construing shall ' in section II of the Act as `may ' would defeat the very provisions of the Act. Held, also, that the contention that the application under s.11 of the Act may be treated as one order 47 of the Code of Civil Procedure, was highly belated and further there were many possible objections to such a course and it cannot be acceded to.

This was an appeal by the defendants in a suit for possession on redemption of certain mortgages instituted in the Court of the Special judge exercising jurisdiction under the Sangli State Agriculturists Protection Act (1 of 1936). Their case was that the mortgaged properties had been sold at auction and purchased by their father who had sold most of them to other persons more than 12 years before the institution of the suit and as such the suit was barred by limitation. The trial Court dismissed the suit. On appeal the High Court of Sangli permitted the plaintiff to amend the plaint originally filed so as to include the relief for redemption and remanded the suit. The trial court, thereafter, decreed the suit in part, holding that the claim in respect of portions only of the mortgaged properties was barred by limitation. Both the parties appealed to the High Court of Bombay and the appeals were heard together. The High Court dismissed the defendant 's appeal and allowed the plaintiff 's appeal holding that article 148 and not article I34 Of the Limitation Act applied. In the result, the plaintiff 's suit was decreed in its entirety. Held, that the preliminary objection that the Special judge had no jurisdiction under the Sangli State Agriculturists Protection Act to entertain the suit must be overruled. The fixing of ,915 as the date line by the Act had reference to such reliefs as could be had only by way of reopening of closed transactions and could not, therefore, preclude the Special Judge from granting other reliefs in respect of transactions entered into prior to 1915. Nor could it be contended in bar that the plaintiff was bound in the first instance to set aside an auction sale of the mortgaged properties in execution of a money decree in which she was not substituted in place of her deceased father as his true heir and legal representative nor made a party and no controversy was raised by the parties nor decided by the Court as to who was the true legal representative. The plaintiff was entitled to ignore the sale and the suit was not barred under article 12 of the Limi tation Act. 480 Malkarjun Bin Shidramappa Pasare vs Narhari Bin Shivappa, (1900) L.R. 27 I.A. 216, doubted and distinguished. In order that article I34 of the Limitation Act might be attracted to a suit for possession on redemption, it was necessary for the defendant to prove affirmatively that the mortgagee or his succesor in interest had transferred a larger interest than was justified by the mortgage. Where, as in the present case, this was not done, article 134 could not apply and the only other article which could apply was article 148 Of the Limitation Act. Under the Mitakshara School of Hindu Law partition may be either (1) a severance of the joint status of the coparcenary by mere defining of shares but without specific allotments or (2) partition by allotment of specific properties by metes and bounds according to shares. The latter, if reduced to writing becomes compulsorily registrable under section I7(1)(b) of the Indian Registration Act but the former does not. Consequently, in the present case such unregistered docu ments as were adduced by the plaintiff for the limited purpose of proving partition in the former sense did not fall within the mischief Of section 49 of the Indian Registration Act and were admissible in evidence.

The Banaras Bank Ltd. was ordered by the Allahabad High Court to be compulsorily wound up. The High Court passed an order under section 187 of the Indian Companies Act, 1913, directing the appellants, whose names had been placed on the list of contributors, to pay a certain sum of money to the official Liquidator. The official Liquidator applied for execution of the order more than three years after the making thereof. The appellants contended that the execution application, not having Been preferred within three years as prescribed by article 182 of the Limitation Act was barred. The official Liquidator contended that the order was made in the exercise of ordinary original civil jurisdiction by the High Court and the application was governed by article 183 which prescribed a period of limitation of twelve years. ^ Held, that article 183 was applicable to the case and the application for execution was within time. The order was Made by the High Court in the exercise of its ordinary original civil jurisdiction as contemplated in article 183. Though the Letters Patent did not invest the High Court with any original jurisdiction it could be conferred by legislation. The Indian Companies Act, 1913, invested the High Court with the jurisdiction to order payment of amounts due by debtors of companies ordered to be wound up. The jurisdiction was ordinary, it did not depend on and extraordinary action on the part of the High Court. It was original as a petition for the exercise of it was entertained by the High Court as a court of: first instance and not as an appellate court, and since the High Court adjudicated upon the liability of the debtor to pay debts due by him to the company the jurisdiction was civil. In the matter of Candas Narondas, Navivahu and C. A; Turner, I. L. R. and P. T. Munia Cervai 74 vs The Hunuman Bnak Ltd., I.L.R , referred to

H & S filed a suit against the appellant for recovery of money and during the pendency of the suit a document was executed on the 7th February, 1949, whereby H & S transferred to the respondents all book and other debts due to them together with all securities for the debts and all other property to which they were entitled in connection with their business in Bombay. One of the book debts was the subject matter of the suit, but there was no mention in that document of the suit or the decree to be passed in the suit. The respondents did not take any steps under Order XXII, rule 10, of the Code of Civil Procedure to get themselves substituted as plaintiffs in the place of H & S, but allowed the suit to be continued in the name of the original plaintiffs, and on the 15th December, 1949, a decree was passed in favour of H & S against the appellant. On the 25th April, 1951, the respondents filed in the City Civil Court, Bombay, an application for execution of the decree under Order XXI, rule 11 of the Code, and a notice under Order XXI, rule 16 was issued by the Court calling upon H & S and the appellant to show cause why the decree should not be executed by the transferees, the respondents. The appellant contended inter alia that as the respondents were only the assignees of the debt which was the subject: matter of the suit and not of the decree itself they were not entitled to execute the decree. Held, that the respondents as the transferees of the debt which was the subject matter of the suit were entitled to make an application for execution of the decree under section 146 of the Code of Civil Procedure as persons claiming under the decree holder. The effect of the expression " save as otherwise provided in this Code" contained in section 146 is that a person cannot make an application under section 146 if other provisions of the Code are applicable to it. Per DAs and IMAM JJ., BHAGWATI J. dissenting. Order XXI, rule 16, by the first alternative, contemplates the actual transfer by an assignment in writing of a decree after it is passed and while a transfer of or an agreement to transfer a decree that may be passed in future may, in equity, entitle the transferee to claim the beneficial interest in the decree after it is passed, such 1370 equitable transfer does not render the transferee a transferee of the decree by assignment in writing within the meaning of Order XXI, rule 16. Per DAS J. The transfer in writing of a property which is the subject matter of a suit without in terms transferring the decree passed or to be passed in the suit does not entitle the transferee to apply for execution of the decree under Order XXI, rule 16, as a transferee of the decree by an assignment in writing. If by reason of any provision of law, statutory or otherwise, interest in property passes from one person to another, there is a transfer of the property by operation of law. There is no warrant for confining transfers "by operation of law" to the three cases of death, devolution or succession or to transfers by operation of statutory laws only. If the document in question could be construed to be a transfer of or an agreement to transfer the decree to be passed in future, then on the decree being passed, by operation of equity, the respondents would become the transferees of the decree by operation of law within the meaning of Order XXI, rule 16. Per BHAGWATI J. Section 5 of the Transfer of Property Act defines a "transfer of property" as an act by which the transferor conveys property in present or in future to the transferee or transferees. The words "in present or in future" qualify the word "conveys" and not the word "property" in the section. A transfer of property that is not in existence operates as a contract to be performed in the future which may be specifically enforced as soon as the property comes into existence. It is only by the operation of this equitable principle that as soon as the property comes into existence and is capable of being identified, equity taking as done that which ought to be done, fastens upon the property and the contract to assign becomes a complete equitable assignment. There is nothing in the provisions of the Code of Civil Procedure or any other law which prevents the operation of this equitable principle, and an assignment in writing of a decree to be passed in future would become a complete equitable assignment on the decree being passed and would fall within the "assignment in writing" contemplated by Order XXI, rule 16 of the Code. A mere transfer of property as such does not by itself spell out a transfer of a decree which has been passed or may be passed in respect of that property and it would require an assignment of such decree in order to effectuate the transfer. But where the property is an actionable claim within the meaning of the definition in section 3 of the Transfer of Property Act and is transferred by means of an instrument in writing, the transferee could by virtue of section 130 of the Transfer of Property Act step into the shoes of the transferor and claim to be the transferee of the decree and apply for execution of the decree under Order XXI, rule 16 of the Code of Civil Procedure. Per IMAM J. There must be a decree in existence which is transferred before the transferee can benefit from the provisions 1371 of rule 16. The ordinary and natural meaning of the words of rule 16 can carry no other interpretation and the question of a strict and narrow interpretation of its provisions does not arise. Case law reviewed.

Nine persons including K instituted a suit for ejectment and recovery of rent against two defendants and obtained a decree, but on appeal, the District judge set aside the decree against defendant No. 2. The plaintiffs then filed a second appeal in the High Court on February 29, 1952, and while the appeal was pending K died on September 8, 1955. No application for bringing his legal representatives on the record was, however, made within the prescribed time, and the appeal abated so far as K was concerned. When the appeal of the appellants other than K came up for hearing on September 1, 1958, a preliminary objection was taken for the respondents that the entire appeal had abated on the ground that the interest of the surviving appellants and the deceased appellant were joint and indivisible and that in the event of the success of the appeal there would be two inconsistent and contradictory decrees. The appellants claimed that the appeal was maint. ainable on the grounds that the surviving appellants could have filed the appeal against the entire decree in view of the provisions of O. 41, r. 4, of the Code of Civil Procedure, that they were, therefore, competent to continue the appeal even after the death of K and the abatement of the appeal so far as he was concerned, and that the Court could have reversed or varied the whole decree in favour of all the original plaintiffs and could have granted relief with respect to the rights and interests of K as well. Held (1) that the provisions of r. 4 of 0. 41 of the Code of Civil Procedure were not applicable, since the second appeal in the High Court was not filed by anyone or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and the surviving appel 550 lants could not be said to have filed the appeal as representing K. (2) that an appellate court had no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. 41, r. 4, of the Code of Civil Procedure, when the decree proceeded on a ground comm. on to all the plaintiffs or defendants, if all the plaintiffs or the defendants appealed from the decree and any of them died and the appeal abated so far as he was concerned under O. 22, r. 3. Ramphal Sahu vs Babu Satdeo Jha, I.L.R. 19 Pat. 870; Amin Chand vs Baldeo Sahai Ganga Sahai, I.L.R. ; Baij Nath vs Ram Bharose, I.L.R. 1953 (2) All. 434; Nanak vs Ahmad Ali, A.I.R. 1946 Lah. 399; Pyarelal vs Sikhar, Chand, I.L.R. 1957 M.P. 21; Raghu Sutar vs Narusingha Nath, A.I.R. 1959 Orissa 148 ; Venkata Ran Rao vs Narayana, A. I.R. and Sonahar Ali vs Mukbul Ali, A.I.R. 1956 Assam 164, approved. Shripad Balwant vs Nagu Kusheba, I.L.R. ; Satula Bhattachariya vs Asiruddin Shaikh, I.L.R. and Somasundaram Chettiar vs Vaithilinga Mudaliar, I.L.R. , disapproved. (3) that the provisions of O. 41, r. 33 were 'not applicable since the appeal by the surviving appellants was not competent in the circumstances of the case. Mohomed KhaleeJ Shirazi & Sons vs Lee Tanneries 53 I.A. 84, relied on.

The appellants as the Mahants of the respective maths or asthals were served with notices under section 59 of the Bihar Hindu Religious Trusts Act, 195o, by the President, Bihar State Board of Religious Trusts, asking them to furnish statements and accounts of the properties in their possession. They challenged the constitutional validity of the Act by proceedings taken in the High Court on the grounds (1) that sections 2, 5, 6, 7 and 8 of the Act infringe article 14 Of the Constitution, inasmuch as there was inequality of treatment as between Hindu religious trusts on one hand and Sikh religious trusts on the other, the latter having been excluded from the purview of the Act, and that there was inequality of treatment even as between Hindu religious trusts and Jain religious trusts, though both came under the Act; (2) that the provisions of ch. V of the Act and in particular sections 28 and 32 violate article 19(1)(f) of the Constitution, as under those provisions the mahant or Shebait practically loses his right of management and is reduced to the position of a mere servant of the Board; (3) that the provisions of the Act contravene articles 25 and 26 of the Constitution, as the power to alter or modify the budget relating to a religious trust or the power to give directions to a trustee may be exercised by the Board in such a way as to affect the due observance of religious practices in the math or temple; (4) that section 70 imposes an unauthorised tax, and (5) that section 55(2) contravenes article I33 of the Constitution. Held, (1) that in view of the fact that in the matter of religious trusts in the State of Bihar, there are differences between Sikhs, Hindus and jains and that the needs of jains and Hindus are not the same in the matter of the administration of 564 their respective religious trusts, it is open to the Bihar Legislature to exclude Sikhs who might have been in no need of protection and to distinguish between Hindus and jains. Accordingly, SS. 2, 5, 6, 7, and 8 of the Act do not infringe article 14 Of the Constitution. It is well settled that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation, and in order to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguished persons or things that are grouped together from others left out of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. Shri Ram Krishna Dalmia vs Shri Justice section R. Tcndollkar, ; , relied on. (2) that having regard to the position of a trustee in respect of the trust property which he holds and the object or purpose of the Act, the restrictions imposed in Ch. V of the Act are really for the purpose of carrying out the objects of the trust and for the better administration, protection and preservation of the trust properties, and are reasonable restrictions in the interests of the general public within the meaning Of cl. (5) Of article 19 of the Constitution. (3) that the Act does not contravene articles 25 and 26 of the Constitution, as the provisions of the Act relating to the power of the Board to alter the budget and to give directions to the trustee are subject to restrictions, namely, that they must be for the proper administration of the religious trust ; and, further, none of the provisions interfere with " matters of religion " including practices which a religious denomination regards as part of its religion. (4) that section 70 Of the Act is a valid provision as it only provides for the levy of a fee for the purpose of defraying the expenses incurred or to be incurred in the administration of the Act and is not a tax. Mahant Sri jagannath Ramanuj Das vs The State of Orissa, ; , followed. (5) that section 55(2) Of the Act does not contravene article I33 Of the Constitution as it does not override or is not intended to override article 133 or any other Article of the Constitution relating to appeals to the Supreme Court.

iminal Appeal No. 7 of 1957. 38 Appeal from the judgment and order dated July 12, 1956, of the Calcutta High Court in Criminal Revision No. 270 of 1956. section C. Mazumdar, for the appellants. B. Sen, D. N. Mukherjee and P. K. Bose, for the respondent. April 18. The Judgment of Sinha C. J., section K. Das, K. C. Das Gupta and N. Rajagopala Ayyangar JJ. was delivered by Das Gupta J. Mudholkar J. delivered a separate Judgment. DAs GUPTA, J. This appeal on a certificate granted by the High Court of Calcutta under article 134(1)(c) of the Constitution is against a judgment and order of that court, upholding the conviction of these appellants under section 73 of the Indian , for contravention of Rule 7 of the Mines Creche Rules, 1946. Rule 3 of these rules requires the owner of every Mine to Construct there a creche in accordance with the plans prepared in conformity with the rules and previously approved by the competent authority; Rule 7 provides that the owner of the mine shall appoint "a creche in charge, who shall be a woman possessing such qualifications and training as may be approved by the competent authority. The complaint which resulted in the conviction of the two appellants, of whom, one Goenka was the owner of the Khas Jawbad Colliery, and the other, viz., J. N. Gupta, the manager of the colliery, alleged that they had contravened Rule 7 of the Mines Creche Rules, 1946, inasmuch as no creche attendant as required by that rule had been appointed there. After an appeal of the present appellants to the Court of Sessions was dismissed, they moved the High Court in revision, but were unsuccessful, except that their sentences were reduced. The High Court however gave a certificate under article 134(1)(c) and on that certificate the present appeal has been filed. The main contentions raised on behalf of the appellants are, (1) that the Mines Creche Rules, 1946, had stood repealed, along with the repeal by section 88 of the of 1952, of the Mines Act, 1923,. under which these rules were admittedly framed and, (2) they having 39 been framed under section 30 (bb) of the Mines Act, 1923, cannot be deemed to be rules made under the , as. the requirements of the corresponding section of the 1952 Act, viz., section 58(b) are different from what is required by section 30(bb) of the 1923 Act. In Criminal Appeals Nos. 98 to 106 of 1959 we have decided that regulations framed under section 29 of the Mines Act, 1923, survive the repeal of that Act. The same reasons which form the basis of that decision apply to the rules framed under section 30 of the Mines Act, 1923; and so, the first contention raised on behalf of the appellants must be rejected as unsound. The second question arises in this way. Clause (bb) of section 30 of the 1923 Act mentions one of the purposes for which rules may be made in these words "For requiring the maintenance in mines, wherein any women are ordinarily employed, of suitable rooms to be reserved for the use of the children under the age of 6 years belonging to such women, and for prescribing, either generally or with particular reference to number of women ordinarily employed in the mine, the number and standards of such rooms, and the nature and extent of the supervision to be provided therein. " In the , section 58 contains the provision empowering the Central Government to make rules for all or any of the purposes mentioned there. Clause (d) of this section runs thus: "For requiring the maintenance in mines, wherein any women are employed or were employed, on any day of the preceding twelve months, of suitable rooms to be reserved for the use of the children under the age of six years belonging to such women, and for prescribing either generally or with particu lar reference to the number of women employed in the mines, the number and standards of such rooms, and the nature and extent of the amenities to be provided and the supervision to be exercised therein;". While it is obvious that cl. (d) of section 58 of the 1952 Act corresponds to cl. (bb) of section 30 of the 1923 Act, it has to be noticed that the requirement in the 1952 40 Act is wider. For, whereas rules under section 30(bb) could require the maintenance of creches and could prescribe certain matters in regard to these, only in mines, wherein "any women are ordinarily employed", section 58(d) authorises the framing of similar rules for maintenance of creches and prescription of similar matters, in respect of all mines, "wherein any women are employed or were employed on any day of the preceding twelve months". It is contended on behalf of the appellants that the Creche Rules, 1946, framed as they were under section 30(bb) of the 1923 Act, must be read as requiring the maintenance of creches and prescribing certain matters relating to creches, only for mines "wherein any women are ordinarily employed". They cannot therefore be considered to be rules under section 58(d) of the 1952 Act, which have to require the maintenance of creches, and prescribe matters relating thereto, not only for mines where women are ordinarily employed, but for mines "wherein any women are employed or were employed on any day of the preceding twelve months". It is urged that the content of the rules cannot be extended by the fact that the 1952 Act permits rules to be framed in respect of mines other than those in respect of which the rules were originally framed. In our opinion, the argument is not without force, and it might be difficult to say that, the Mines Creche Rules framed under section 30(bb) of the 1923 Act, would apply to all mines contemplated by section 58(d) of the 1952 Act. This difficulty would not however stand in the way of the Mines Creche Rules, 1946, operating in respect of "mines where women are ordinarily employed", as rules under the 1952 Act. It has to be noticed that the mines in respect of which rules may be made under section 58(d) of the 1952 Act, do not exclude mines, where women are ordinarily employed; the description "mine wherein any women are ordinarily employed "include, in the first place the mines where women are ordinarily employed and include in addition to those other mines", 'wherein any women are employed or were employed on any day of the preceding twelve months ', even though the attribute of "women being ordinarily 41 employed there", is not present. Assuming therefore as correct the argument that the content of the rules does not stand extended, the Mines Creche Rules, 1946, may still be reasonably deemed to be rules under section 58(d) of the 1952 Act, though not fully exhausting the purpose mentioned in that section. In other words, the position is that while under section 58(d) of the 1952 Act rules may be framed in respect of (1) mines wherein women are ordinarily employed and (2) mines wherein though women are not ordinarily employed, women are employed and (3) mines, where though women are not ordinarily employed, women were employed on any day of the preceding twelve months, the Mines Creche Rules, 1946, cover a part of the ground that could be covered by rules under section 58(d) of the 1952 Act. To the extent the provisions of section 58(d) of the 1950 Act and section 30(bb) of the earlier enactment overlap, these rules would continue in force by virtue of section 24 of the . On an examination of the evidence adduced in the case before the Magistrate, we find that the Jawabad Mine was one, where women were ordinarily employed. With regard to this Mine therefore the Mines Creche Rules operated as rules under the 1952 Act; and consequently, contravention of Rule 7 of the Mines Creche Rules, 1946, was in law a contravention of a rule made under the 1952 Act, within the meaning of section 73 of that Act. On behalf of the second appellant, Gupta, who was the manager of the colliery at the relevant time, a further contention is raised. It is pointed out that Rule 7(1) does not in terms lay any duty on the manager and it is contended that the manager having no duty to perform under Rule 7(1) of the Creche Rules; no question of his contravening the same by omission to appoint a creche in charge arises. The answer to this question depends on the interpretation of section 18 of the , which is in these words: "18. Duties and responsibilities of owners, agents and managers: 6 42 (1) The owner, agent and manager of every mine shall be responsible that all operations carried on in connection therewith are conducted in accordance with the provisions of this Act and of the regulations, rules and bye laws and of any orders made thereunder. (2) In the event of any contravention of any such provisions by any person whosoever, the owner, agent and manager of the mine shall each be deemed also to be guilty of such contravention unless he proves that he had taken all reasonable means, by publishing and to the best of his power enforcing those provisions, to prevent such contravention. (3) It shall not be a defence in any proceedings brought against an owner or agent of a mine under this section that a manager of the mine has been appointed in accordance with the provisions of this Act". It has to be noticed that after the first sub section states in general terms that the owner, agent and manager shall be responsible for the carrying out of "all operations carried on" in connection with the mine, in accordance with the provisions of the Act and of the regulations, rules and bye laws and of any orders made thereunder, the second sub section d eals with the question of guilt of the owner, the agent and manager for contravention of such provisions by "any person whosoever"; and the third sub section goes on to say that the owner or agent cannot escape liability merely because a manager of the mine has been appointed. The first contention urged on behalf of the appellant is that the Mines Creche Rules have nothing to do with "operations carried on in the mines" and that section 18 deals only with the proper observance of the provisions of the Act directly touching the work carried on in the mines, for raising coal and allied activities. In our opinion that will be an unduly narrow interpretation of the section. The employment of female labour is obviously and admittedly connected with the raising of coal in the mine; and all conditions of employment of female labour should reasonably be held to be 43 inextricably connected with "operations carried on" in the mines. The Mines Creche Rules are no less conditions of female labour than are the provisions of, say, section 46 of the Act. That section prohibits the employment of women in a mine which is below ground and also employment of women in mines above ground except between 6 a.m. and 7 p.m. except to the extent there is variation of the hours of employment above ground by the Central Government in exercise of the powers given by that very section. Section 46 as it now stands also provides that every woman shall be allowed an interval of not less than eleven hours, between the termination of employment on any day and the commencement of the next period of employment. It cannot be seriously argued that if in any mine, women labour is employed, in breach of these provisions of section 46, operations would have been carried on in the mine in accordance with the provisions of the Act. We see no reason why employment of female labour in a mine, without compliance with the Mines Creche Rules, should not be similarly held to amount to "carrying on operations in connection with the mine" in contravention of a rule made under the Act. The true position in our opinion is that in order that operations carried on in connection with the mine can be said to have been conducted in accordance with the provisions of the Act, and of the regulations, rules and bye laws, and of the orders made thereunder, it is necessary not only that such provisions as are directly connected with the work of raising coal are observed, but also that provisions governing the conditions of employment of the persons engaged in the mining operations are also observed. The Mines Creche Rules, as already pointed out undoubtedly form part of the conditions of employment, of female labour engaged in mining operations. Observance of these rules is therefore necessary before operations can be said to have been carried on in accordance with the rules made under the Act. In our opinion, therefore, the effect of section 18(1) is that all three the manager, the agent and the owner are responsible for the Observance of the Mines Creche Rules. 44 On behalf of the State it is urged that the result of such a responsibility being laid on all the three is that the manager is liable to penalty for a contravention of the Mines Creche Rules by the owner. It is unnecessary however to consider whether section 18(1) by itself has this consequence; for the matter is put beyond doubt by section 18(2). This sub section of section 18 makes all the three the owner, the agent and the manager severally liable for the breach of any regu lations by "any person whosoever". Not only is that person who contravened the provisions guilty but each of these three the manager, the agent and the owner is also deemed to be guilty though the contravention was not by himself. It would be illogical to say in the face of this provision that two of them should not be held liable for the contravention of the provisions within section 18(1) by the third. But, says, the manager appellant, such a construction of section 18(2) should be avoided as it will be thorough. by unjust. "How am I to secure", says he, "the observance of a rule which in terms fixes a duty on the owner only to do certain things". The argument really is that the Legislature acted improperly making the owner, the agent and the manager vicariously liable for the contravention of certain provisions by " any person whosoever". With the wisdom of the law the Court is not however concerned. It is pertinent to notice however that it was clearly to avoid injustice which may result from the fixation of such vicarious liability that the legislature has provided for a special defence of the owner, the agent and the manager in such cases. Thus, if a rule or a bye law in terms lays a duty on the manager, and the owner is prosecuted he will escape punishment as soon as he shows that he did all that he could reasonably do in seeing that the manager duly performed his duty. The effect of sub section (3) is that the mere appointment of a manager would not be a sufficient defence. Where, as in the present case, the rule in question lays a duty in terms on the owner and the manager is prosecuted he will escape conviction on showing that he took all reasonable 45 means to prevent the contravention of the rules by the owner. The whole purpose of section 18 read as a whole appears to be clearly this: The provisions of the Act and of the regulations, rules and bye laws or orders made thereunder may require certain things to be done or forbidding the doing of certain things with or without mentioning the person required to do the thing or forbidden to do it. Where a person definitely indicated is required to do or forbidden to do a certain thing he is straightaway, liable to penalty for contravention of the rules. But the owner, the agent and the manager will have the additional responsibility that even though any of them is not named as the person required or forbidden to do a thing, the owner, the manager or the agent, will be liable to punishment for the contravention of the rule, subject to this that the liability will disappear as soon as he shows that he had taken all reasonable means to prevent the contravention. In the present case, the manager appellant has neither suggested nor proved that he took all reasonable means to prevent the contravention of the provisions of Rule 7 of the Mines Creche Rules by the owner. He must therefore be deemed guilty of the contravention, even though the rule in terms laid no duty on him. In support of his contention that the law does not impose any duty on the manager of the mines to carry out the provisions of the Creche Rules, Mr. Majumdar relied on a decision of the Nagpur High Court in the State Government, M. P. v Deodatta Diddi (1). The question there was whether one Deodatta Diddi, Agent, Rawanwara Khas Colliery, could be held to have contravened rule 3(1) of the Coal Mines Pithead Bath Rules, 1946, where no pithead baths had been con structed as required by the rules. In terms, rule 3(1) provided that the owner of every coal mine shall construct pithead baths in accordance with the plans prepared in conformity with the rules and approved by the competent authority. It was held by the High (1) A.I. R. (1956) Nag. 46 Court that it was the owner alone who could be deemed to have contravened the rule and that the Agent even assuming that he was the representative of the owner in respect of the management of the colliery had no duty to perform in this matter. We notice however that the attention of the learned Judges was not drawn to the provisions of section 18 of the Indian . This decision is therefore of no assistance. The question as regards the liability of any agent or manager of the mine for the construction of pithead baths or of mine creches appears to have been raised before the Calcutta High Court in G. D. Bhattar vs The State (1). In that ease both the learned Judges considered section 18 of the , but came to different conclusions, one of them holding that under section 18 the manager would be liable for carrying out the provisions of these rules while the other learned Judge took a different view. In our opinion, the former view is correct. All the contentions raised on behalf of the appellants therefore fail. The appeal is accordingly dismissed. MUDHOLKAR, J. While I agree to the order proposed with respect to Mohan Lal Goenka, I am of the opinion that the conviction of the co appellant Gupta who was a manager of the mines cannot be sustained. It has throughout been accepted that under r. 7(1) of the Mines Creche Rules, 1946, as they stood on the date of the alleged contravention the responsibility for appointing a creche in charge was on the owner of the mine only. It was, therefore, contended on behalf of Gupta that he cannot be held liable for the contravention of the rule made by the owner Mohan Lal Goenka. Reliance was, however, placed on behalf of the State in the courts below as well as before us on the provisions of section 18 of the (35 of 1952). That section reads thus: "(1) The owner, agent and manager of every mine shall be responsible that all operations carried on in connection therewith Are conducted in accordance with the provisions of this Act and of the (1) A.I.R. (1957) Cal. 47 regulations, rules and bye laws and of any orders made thereunder. (2) In the event of any contravention of any such provisions by any person whosoever, the owner, agent and manager of the mine shall each be deemed also to be guilty of such contravention unless he proves that he had taken all reasonable means, by publishing and to the best of his power enforcing those provisions, to prevent such contravention: Provided that the owner or agent shall not be so deemed if he proves (a) that he was not in the habit of taking, and did not in respect of the matter in question take, any part in the management of the mines; and (b) that he had made all the financial and other provisions necessary to enable the manager to carry out his duties; and (c) that the offence was committed without his knowledge, consent or connivance. (3) Save as hereinbefore provided, it shall not be a defence in any proceedings brought against an owner or agent of a mine under this section that a manager of the mine has been appointed in accordance with the provisions of this Act. " It was urged that this section holds the owner, the agent as well as the manager liable for the contravention of any provision of the Act or of a regulation, rule or bye law made by any person unless the owner, agent or manager can bring his case within any of the exceptions set out in sub section (2) of section 18. It is pointed out that Gupta has not relied on any exception and, therefore, his conviction is correct in law. Section 18 is in Chapter IV of the which deals with "Mining operations" and "Management of mines". This chapter thus deals with two topics. Section 18, however, deals with only one of these two topics, that is, "Mining operations". This would clearly follow from the language of sub section (1) or section 18. The duties and responsibilities of owners, agents and managers with which this section deals are with respect to "all operations carried on in connection there with", i.e., the mine. Therefore, the inference must be that this section deals with duties etc., in connection with mining 48 operations only. The chapter itself has drawn a distinction between "Mining operations" and "Management of mines". Employment of labour, providing amenities for them and allied matters would pertain mainly to "management" and not to "Mining operations". The expression "Mining operations" occurring in an Act dealing with mines should be accorded that meaning which it has in the mining industry. In the industry a mining operation is understood to mean an opera tion undertaken for the purpose of winning minerals and cannot, as suggested by my learned brother, be given an extended meaning so as to embrace within it matters such as employment of labour, providing amenities to labour etc., even though that labour is utilised or required for the purpose of carrying on mining operations. I can see no justification for giving an extended meaning to the expression "Mining operations" and none was suggested at the bar. Upon this view it would follow that the manager of a mine cannot be made vicariously liable for the omission of the owner, to carry out his duty under r. 7(1) of the Mines Creche Rules. There is an additional reason for coming to the same conclusion. Upon the language of section 18(2) the manager of a mine cannot be held liable for the contravention by the owner of any provision of the Act, regulation, rule or bye law unless that contravention was with respect to a matter in ' regard to which the exception could be available. To put it a little differently, a manager cannot be held vicariously liable for a contravention unless there was on his part also an omission to do something which was in his power to do. Sub section (2) of section 18 would absolve a manager from vicarious liability if he could show "that he had taken all reasonable means by publishing and to the best of his power enforcing those provi. sions to prevent such contravention". This, therefore, implies that by resorting to certain steps he can escape liability. The first part of the quotation is clearly in. applicable to the present case. The second part would apply provided the manager had the power to enforce the performance of a particular duty by the owner. 49 There is nothing in the Act or the rules which empowers the manager to enforce the performance by the owner of his duties under sub r. (1) of r. 7. Since that is the position it must be held that the manager is not liable for the contravention by the owner of his duty under sub r. (1) of r. 7 of the Mines Creche Rules. That the construction I am placing on this provision is the proper one would appear from the following illustration. Section 17 of the Act provides that the owner or an agent of every mine shall appoint a person having the prescribed qualification as a manager of the mine. Section 57(c) provides for the framing of regulations prescribing the qualifications for the manager of mines. I will assume that regulations have been made thereunder prescribing the qualifications for managers. If a person is appointed as a manager of a mine even though he does not possess the prescribed qualification would he be held vicariously liable for the contravention by the owner or the agent of the duties placed upon the owner and agent by a Regulation and by section 17? I do not think that there would be any difficulty in saying that he would not be liable for the simple, reason that it was not within his power to enforce the compliance by the owner of the duty cast upon him by the regulations. I would, therefore, allow the appeal of Gupta and set aside the sentence of conviction passed upon him. ORDER. In accordance with the opinion of the majority the appeal, on behalf of both the appellants, is dismissed. Appeal dismissed.

The appellants one of whom was the owner and the other the manager of a colliery were convicted for contravening the provisions of the Mines Creche Rules, 1946, under which the owner of every mine employing women was required to construct creches for the use of the women employees and also to appoint a "Creche in charge" for the supervision of the creches. Their contentions mainly were (1) that the Mines Creche Rules, 1946 stood repealed as the Mines Act, 1923 itself under which those rules were framed were repealed by the Mines Act of 1952 and (2) that the said rules having been framed under section 30(bb) of the Mines Act, 1923, could not be deemed to be rules made under the corresponding section 58(d) of the 1952 Act the requirements of which were different from those of section 30(bb) of the 1923 Act. On behalf of the manager a further contention was raised that he was not liable for the Contravention of r. 7(1) under which he 37 had no duty to perform and no question of his omission to appoint a creche in charge arose. Held, per Sinha, C. J., section K. Das, Das Gupta and Ayyangar, JJ., that the regulations framed tinder section 30 of the Mines Act, 1923, survived the repeal of that Act. Criminal Appeals Nos. go to 106 of 1959, followed. The Mines Creche Rules, 1946, framed under section 30(bb) of the Mines Act of 1923 covered a part of the ground that was covered by the provisions of section 58(d) of the Mines Act of 1952, and to the extent the provisions of the two enactments overlap each other these rules would continue to be in force by virtue of section 24 of the and operate as rules under the 1952 Act. Contravention of r. 7 of the Mines Creche Rules, 1946, was in law contravention of a rule under section 58(d) of the 1952 Act within the meaning of section 73 of the Act. Under section 18(1) of the , the manager, the agent and the owner are responsible for observance of the Mines Creche Rules which form part of the conditions of employment of female labour engaged in "mining operations" and under subS. (2) of section 18 each of them shall be deemed to be guilty of the contravention of any rule by "any person whosoever", unless he proves that he took all reasonable means to prevent such contravention. The manager in the present case not having proved that he took all reasonable means to prevent the contravention of r. 7 by the owner even though the rule in terms laid no duty on him, must be deemed to be guilty of the contravention. State Government, M. P. vs Deodatta Diddi, A.I.R. (1956) Nag. 71, held inapplicable. G. D. Bhattar vs State, A.I.R. (1957) Cal. 483, the view making the manager liable to be approved. Per Mudholkar, J. In the mining industry a "mining operation", as contemplated under section 18 of the , is understood to mean an operation undertaken for the purpose of mining minerals and cannot be extended to mean "management of mines" such as employment of labour and providing amenities to employees etc. The manager of a mine cannot be made vicariously liable for the omission of the owner to carry out his own duty under r. 7(1) of the Mines Creche Rules. Sub section (2) of section 18 would also absolve the manager from vicarious liability if he could show "that he had taken all reasonable means by publishing and to the best of his power enforcing those provisions to prevent such contravention". But there is nothing in the Act or the rules which empowers the manager to enforce the performance by the owner of his duty under sub r. (1) of r. 7 of the Mines Creche Rules and the manager was therefore not liable for the breach of that rule.

In connection with an investigation in January 1958 relating to another case, the appellant, who was employed as a railway guard on the Eastern Railway, was found in possession of pecuniary resources disproportionate to his known sources of income. As it was thought that he ' had come in possession of these pecuniary resources by committing acts of misconduct defined in clauses (a) ,to (d) of section 5(1) of the Prevention of Corruption Act 2 of 1947, on the recommendation of the Deputy Superintendent of Police for the area, an Inspector of Police was appointed by an Order dated 27th February 1959 of the Magistrate, Ist Class, Sahibganj, to investigate the case against the appellant. The Investigating Officer, upon completion of the investigation and after obtaining sanction of the appropriate authority for prosecution of the appellant, submitted a charge sheet on March 31, 1960. The Trial Court convicted the appellant under section 5(2) of the Act and s.411 I.P.C. In appeal, by a judgment dated September 14, 1965,. the High Court set aside the conviction and sentence of the appellant under section 411 I.P.C. but confirmed his conviction under section 5(2) of the Act and reduced the sentence awarded by the Trial Court. On December 18, 1964 Parliament enacted the Anti Corruption Laws (Amendment) Act 40 of 1964 which repealed sub section (3) of section 5 of the. Act and enlarged the scope of criminal misconduct in section 5 by inserting a new clause (e) in section 5(1) of the Act. In appeal to this Court it was contended on behalf of the appellant (i) that section 5(3) of the Act having been repealed while the appeal was pending in the. High Court, the presumption enacted in section 5(3) was not available to prosecuting authorities after the repeal 'and it was not open to the High Court to invoke the presumption in considering the case against the appellant; the presumption contained in section 5(3) was a rule of procedural law and as alterations in the form of procedure are always retrospective in character, unless it was provided otherwise, it was not open to the High Court to apply the presumption in the present case; (ii) that the statutory safeguards under section 5A of the Act had not been complied with as the Magistrate had not given reasons for entrusting the investigation to a Police Officer below the rank of Deputy Superintendent Police; and (iii) that the charge against the appellant under section 5(2) the Act was defective as there were no specific particulars of misconduct as envisaged under clauses (a) to (d) of section 5(1) of the Act, nothing was stated about the amounts the appellant took as bribes and the 412 persons from whom he had taken such bribes so that the, appellant had no opportunity to rebut the presumption raised under section 5(3) of the Act and to prove his innocence. HELD: Dismissing the appeal v: (i) The High Court was right invoking the presumption under section 5(3) of the Act .even though it was repealed on December 18, 1964 by the Amending Act. Although as a general rule the amended law relating to procedure operates retrospectively, there is another equally important principle, which is also embodied in section 6 of the General Clauses Act, that a statute should not be so construed 'as to create new disabilities or obligations or impose new duties ties in respect of transactions which were complete at the time the amending Act came into force. The effect of the application of this principle is that pending cases although instituted under the old Act but still pending are governed by the new procedure ' under the amended law, but whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. In the present case, the trial of the appellant was taken up when section 5(3) of the Act was still operative. The conviction of the appellant was pronounced on March 31, 1962 long before the amending Act was promulgated. It Was not therefore possible to accept the contention that the conviction pronounced by the trial Court had become illegal or in any way defective in law because of the amendment to procedural law made on December 18, 1964. [417 G; 418 D] James Gardner v, Edward A. Lucas, at p. 603; King V, Chandra Dharrna, ; In re a Debtor [1936] .1 Ch.237 and In re Vernazza; ; referred to. (ii) Although the Magistrate 's order on the, petition filed by the DepUty Superintendent of Police suggesting that the Inspector of Police be empowered to investigate the case does not state any reasons for his granting the permission sought, the High Court had rightly concluded 'that as the Magistrate was working in the area for a period of two years prior to the passing of the order in question he must have known that the Deputy Superintendent of Police could not devote his whole. time to the investigation of the case and therefore the inspector of Police .should be entrusted to do the investigation. [419 F] (iii) The charge, as framed, dearly stated that the appellant accepted gratification other than legal remuneration and obtained pecuniary advantage .by corrupt ,and illegal means. The absence of sufficient particulars could not invalidate the charge though it may be a ground for asking for. better particulars. The appellant never complained in the trial court or the High Court that the charge did not contain the necessary particulars, he , was. misled on that account in his defence. In view this and the provisions of section 225 Cr. P.C. it could not be said that charge was defective. [421 F]

The appellants who were charged with the offence of committing murder were acquitted by the Sessions Judge. But on appeal by the State, the High Court convicted and sentenced them. In their appeal under section 2(a) of the , this court, after a detailed analysis of the High Court 's judgment and the evidence led in the case summarily dismissed the appeal under section 384 of the Code of Criminal Procedure, 1973. After the pronouncement of the judgment but before it was signed, the attention of the court was drawn to the judgment in Sita Ram vs State of U.P. ; which, according to them, held that the Supreme Court had no power to summarily dismiss an appeal under section 384, Cr. P.C. in an appeal under section 2(a) of the 1970 Act. Dismissing the appeal. ^ HELD: The decision in Sita Ram vs State of U.P. is no authority regarding the power of the court to summarily dismiss an appeal under section 384 of the Criminal Procedure Code. In that case neither in the application for adducing additional grounds nor in the order of the Court directing the matter to be placed before the constitution bench was there any reference to the validity of section 384 nor was it pleaded that the section was ultra vires the Constitution. [356 E] Therefore the observation of the Court that it has "pondered over the issue in depth" would not be a precedent binding on the court. The decision is an authority for the proposition that rule 15(1)(c) of order XXI of the Supreme Court Rules should be read down as indicated in that decision. [356F]

In the village of Challayapalam, there were six inams, namely, the Challayapalam Shrotriem and five minor inams but there was no information as to when the inams were created and by whom. In two suits, one filed by the shrotriemdars, against the tenants for a declaration that the tenants did not have occupancy rights in the lands in their occupation, and the other by the tenants for a declaration that they had occupancy rights, the question arose whether the shrotriem was an "estate" within the meaning of section 3 (2) (d) of the Madras Estates Land Act, 1908, as amended by Act 18 of 1936. The trial court held, on a review of the evidence, that the grant was of the whole village within the meaning of the section and that the tenants had occupancy rights. On appeal, the High Court held that the evidence on record was inconclusive, that the onus of proving that the ant was of an estate lay upon the tenants, and that, since the tenants had Failed to discharge the onus, the question should be decided against the tenants. In the appeal to this Court by the tenants, the question was : if there was no evidence justifying an inference that the grant was of a whole village, whether explanation 1 to section 3(2)(d) (added by Act 2 of 1945) gave rise to a presumption in favour either of the shrotriemdars or the tenants. HELD : The suit of the shrotriemdars must fail, because, the Explanation raises a presumption, where a grant is expressed to be of a named village, that the area which formed the subject matter of the grant shall be deemed to be an estate. Raising of the presumption is not subject to any other condition. The legislature has, by the non obstante clause in the Explanation, affirmed that such presumption shall be raised even if it appears that in the grant are not included certain lands in the village, which have, before the grant of the named village been granted on service or other tenure or have been reserved for communal purposes. The party contending that the grant in question falls outside the definition in section 3(2) (d), has to prove that case, either by showing that the minor inams not comprised in the grant were created, contemporaneously with or subsequent to the grant of the village, by the grantor. [857 D E; 861 C E] By enacting the Explanation the intention of the legislature was to declare occupancy rights of tenants in inam villages. It would be attributing to the legislature gross ignorance of local conditions. if it was held that the legislature intended to place upon the tenant the onus of establishing affirmatively that the minor inams were granted before the grant of the named village and that if he fails to do so his claim is liable to fail. It is well nigh impossible to discharge such a burden in normal cases. Nor was it intended that, when the evidence was inconclusive, the person who approached the Court for relief must fail, for, as in the present 842 843 case, if the inamdar as well as the tenant sue for relief, the application of the rule would require the court to adopt the anomalous course of dismissing both the actions. In cases, which arose after the Amending Act of 1936, reference to the presumption in section 23 of the Act would be wholly out of place, the applicable presumption being the one prescribed by Explanation 1. The presumption under section 23, that a grant in favour of an inamdar was of the melvaram only, applied only in cases which arose before the Amending Act of 1936. [857 G; 858 B; 860 B; 862 F G] District Board of Tanjore vs M. K. Noor Mohammad Rowther, A.I.R. 1953 S.C. 446 and Varada Bhavanarayana Rao vs State of Andhra Pradesh, ; , explained.

The respondent imported 2,000 drums of mineral oil and the appellant confiscated 50 drums and imposed a personal penalty. The appeal of the respondent was dismissed by the Central Board of Revenue. The respondent filed a petition under article 226 of the Constitution in the Calcutta High Court. A Full Bench of the High Court held that the High Court had no jurisdiction to issue a writ against the Central Board of Revenue in view of the decision in the case of Saka Venkata Subbha Rao. However, as the Central Board of Revenue had merely dismissed the appeal against the 564 order of the appellant, the High Court further held that it had jurisdiction to pass an order against the appellant. The appellant came to this Court after obtaining a certificate. Held that the appellant had merged into that of the Central Board of Revenue and hence no order could be issued against the appellant. It is only the order of the appellate authority which is operative after the appeal is disposed of. It is immaterial whether the appellate order reverses the original order, modifies it or confirms it. The appellate order of confirmation is as efficacious as an operative order as an appellate order of reversal or modification. As the appellate authority in this case was beyond the territorial jurisdiction of the High Court, it was not open to the High Court to issue a writ to the original authority which was within its jurisdiction. Election Commission, India vs Saka Vankata Subba Rao, , A. Thangal Kunju Mudatiar vs M. Venkitachalam Poiti, ; , Commissioner of Income tax vs M/s. Amritlal Bhogilal & Co. [1959] section C. R. 713 and Madan Gopal Rungta vs Secretary to the Government of Orissa, (1962) (Supp.) 3 S.C.R. followed. Barkatali vs Custodian General of Evacuee Property, A. 1. R. , overruled. Joginder Singh Waryam Singh vs Director, Rural Rehabilitation, Pepsu, Patiala, A. 1. R. 1955 Pepsu 91, Burhanpur National Textile Workers Union vs Labour Appellate Tribunal of India at Bombay, A. I. R. , and Azmat Ullah vs Custodian, Evacuee Property, A.I.R. 1955 All 435, approved. State of U. P. vs Mohammed Nooh, ; , distinguished.

The petitioning creditor in an insolvency proceeding sought annullment of two mortgages, one for Rs. 15,000/ in favour of the appellant in C.A. 845 and another for Rs. 10,000/ in favour the appellant in C.A. 846. The mortgages were dated November 4, 1950 and were registered on November 6, 1950. The insolvency Court held that the mortgages were not supported by consideration and were executed with a view to screening some of the properties of the insolvents 'from their creditors. It therefore, annulled the mortgages under section 53 of the . The District Judge, in appeal, reversed the findings of the trial court but the High Court, acting under the first proviso of section 75(1) of the Act, set aside the judgment of the District Judge and restored that of the Insolvency Court. in an appeal to this Court by special leave, it was contended on behalf of the appellants (i) that the High Court while acting under the first proviso of section 75(1) to satisfy itself "that an order made in any appeal decided by the District Court was according to law" had no power to disturb the findings of fact reached by the appellate court; the jurisdiction of the High Court is a very limited one and not more than that conferred on it by sub section 100(1) C.P.C.; and (ii) that the conclusions of the High Court were unsustainable on the evidence on record. HELD: (i) The legislature did not confer on the High Court 'under the first proviso to section 75(1) of the Act an appellate power nor did it confer on if a jurisdiction to reappreciate the evidence on record. While exercising that power the High Court is by and large bound by the findings of fact reached by the District Court. If the legislature intended to confer power on it to reexamine both questions of law and fact it would have conveyed its intention by appropriate words as has been done under various other statutes. A wrong decision on facts by a competent court is also a decision according to law. [701 D] A decision being "contrary to law" as provided in section 100(1)(a) of the Code of Civil Procedure is not the same thing as a decision being not "according to law" as prescribed in the first proviso of section 75(1) of the Act. The latter expression is wider in ambit than the former. It is neither desirable not possible to give an exhaustive definition of the expression "according to law". The power given to the High Court under the first proviso to section 75(1) of the Act is similar to that given to it under section 25 of the Provincial Small Causes Courts Act. [701 F] Bell & Co. Ltd. vs Waman Hemraj, ; Hari Shankar vs Rao Girdhari Lai Chowdhury, [1962] 1, supp. S.C.R. 399; 699 Official Receiver, Kanpur and Anr. vs Abdul Shakur ; ; referred to and explained. (ii) On the evidence, the findings of the District Court on the payment of consideration were correct findings of fact and the High Court could not have interfered with the same. However, one payment in respect of the mortgage in C.A. 845 was not proved and the mortgage was therefore only valid to the extent of Rs. 10,5001 .

The appellant was holding a temporary post of Editor in the Publications Division of the Department of Information and Broadcasting. The temporary post was sanctioned upto 28 2 1957. On 16 2 1959, the President of India, in exercise of the powers conferred by the proviso to article 309 of the Constitution, promulgated the Central Information Service Rules, 1959. These Rules were meant for the creation of a Central Information Service with prescribed grades and strengths, and entry into the service was open to departmental candidates according to r. 5 for the initial constitution of the service. The appellant was chosen by the Selection Committee and was posted as an Assistant Editor. He challenged the order. A single Judge of the High Court allowed the petition. On appeal, in the course of arguments, the question arose whether the post of Editor was abolished or had ceased to exist and the respondent was allowed to file an affidavit stating that the post of Editor had ceased to exist. The Division Bench then held that there was no question of demotion or reduction in rank and hence that article 31 1 was not applicable. In appeal to this Court, it was held (1) The additional affidavit filed by the respondent did not introduce anything new but only clarified the position. [455 E] (a) There was nothing to show that the temporary post of Editor in which the appellant was initially appointed had been continued beyond 28 2 1957 for any period. [455 C] (b) The question whether the constitution of the Central Information Service involved fresh appointments to new posts or its effect was merely to transfer existing employees to corresponding posts with new designations was already before the court. [455 D E] (c) The appellant himself never asked for any opportunity to meet any allegation in the additional affidavit. [454 F G] (2) There is nothing to indicate that on the face of the impugned order, that the appellant had been demoted as a measure of punishment. [455 F G] (3) it could not be held that the order, which had the effect of terminating an officiating appointment in which the appellant had no right to continue and which gave him a fresh appointment with a different designation, 'out permanent tenure and prospects, constituted a 450 violation of either article 14 or 16, simply because the process which resulted in such an order did not have a similar effect upon the position or rights of any other person in the Department; especially when, after taking into account the appellant 's individual case, the Selection Com mittee recommended the maximum pay in the class and grade of the post given to him. [456 A C] (4) (a) The new rules had the effect of constituting a new service with a fair and reasonable procedure for entry into it. , Such a procedure could not be characterized as a device to defeat the provisions of article 311 or a fraud upon the Constitution simply because the result of subjection to the process of appraisement of the merits of each candidate may not meet the expectations of some candidates. [457 F G] (b) Article 311 afford , a reasonable opportunity to defend against threatened punishment to those already in Government service. Rule 5 of the Central Information Service Rules provides a method of recruitment or entry into a new service of persons who, even though they may have been serving the Government had no right to enter the newly constituted service before going through the procedure prescribed by the rule. The fields of operation of article 311 and r. 5 are quite different and distinct. [457 G H; 458 A B] (c) The definition of 'departmental candidates ' in r. 2(b) was meant only as an aid in interpreting r. 5 and was not intended to operate as a fetter on the functions and powers of the Selection Committee. It does not require that all persons falling within the definition of 'departmental candidate ' should be placed in a single class, Under r. 5 the Selection Committee could assign different grades to the departmental candidates. The post actually held by the appellant before his selection for appointment to the newly constituted service did not automatically or wholly determine the position of a departmental candidate who offered himself to the process of appraisement of his merits by the Selection Committee to be made on the totality of relevant facts. That Committee was presided over by the Chairman or a Member of the Union Public Service Cornmission and had officials of the Department on it who were in a position to correctly evaluate the appellant 's merit 's and the weight to be attached to his confidential records. [459 B H] (5) The appellant 's allegations of mala fides and that he was the victim of the prejudice and machinations of an (unnamed) officer in the Transport Ministry, could not properly be tried in writ proceedings and without impleading that official. [460 F G]

The respondent plaintiff instituted a suit against the appellant defendant for declaration of title and possession of the suit properties on the basis of a sale deed dated February 10, 1964 executed in his favour by Mrs. T. The appellant defendant also asserted his title and possession under an earlier deed dated February 14, 1959 executed by Mrs. T in his favour. The respondent contended that the deed of 1959 in favour of the defendant was sham and without any consideration. The Trial Court decreed the suit and the decree was confirmed in appeal. The High Court set aside the decree and remanded the case to the first appellate court stating that the burden to prove that the 1959 deed was sham was on the plaintiff. After the remand, the first appellate court considered the evidence adduced by both sides and upheld the plaintiff 's title and confirmed the decree of the trial court. The second appeal filed against the judgment was dismissed in limine by the High Court. In defendant 's appeal to this court it was contended that inspite of specific direction by the High Court in the order of remand that the burden to prove that 1959 deed was sham was on the plaintiff, no fresh evidence was tendered by the plaintiff to discharge the burden and the appellate court proceeded to examine the evidence tendered by the defendant and rejected the same; hence the appellate court committed an error in disposing the appeal which gave rise to a substantial question of law and the High Court failed to exercise its jurisdiction under Section 100 CPC in dismissing the second appeal in limine. Dismissing the appeal, this Court HELD: 1. It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff but after having gone into 545 evidence, he cannot ask the court not to look at and act on it. The question of burden of proof at the end of case when both parties have tendered evidence is not of any great importance and the court has to come to a decision on a consideration of all materials. [515H; 516A] 2. In the suit based on title the burden was undoubtedly on the plaintiff to prove such title. When the plaintiff assailed the earlier deed executed by his vendor in respect of the same land it was for him to establish that it was a Farzi Kebala and sham transaction unsupported by consideration. But in examining the question whether the plaintiff had succeeded in proving the negative fact it was open to the court to consider the entire evidence on record when both the parties have tendered evidence and no part of the evidence could be left out. The plaintiff proceeded on the basis that the deed executed by his vendor in 1959 was sham unsupported by consideration and it never came into operation thereby pleading the necessary facts in support of his title. Evidence was tendered to prove what has alleged. To counter the claim, the defendants have asserted that the consideration was paid under the deed and counter evidence was tendered. The entire evidence was fully apprecited by the Appellate Court and the findings recorded. Thus the Appellate Court recorded definite findings on a clear analysis of the entire evidence and the findings are fully supported by the evidence on record. Therefore, no error had been committed by the learned Judge in his approach. [597C D; 599B C]

iminal Appeal No. 51 of 1959. Appeal by special leave from the judgment and order dated May 16, 1958, of the Calcutta High Court in Criminal Appeal No. 2 of 1958. A. section B. Chari, K. C. Jain and B. P. Maheshwari, for the appellant. N. C. Chatterjee, H. R. Khanna and D. Gupta, for respondent. April 19. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is from the order of the Calcutta High Court dated May 16, 1958, summarily dismissing the appeal of the appellant from the order of the learned Single Judge of the High Court convicting him on jury trial of offences under section 120 B read with section 471, Indian Penal Code, and on two counts under section 471 read with section 466, Indian Penal Code, with respect to two documents. L. N. Kalyanam, who was also tried at the same trial and convicted of the offences under section 120 B read with section 471, Indian Penal Code, two counts under section 466, Indian Penal Code, and of the offence under section 109, read with section 471, Indian Penal Code, did not appeal against his conviction. The brief facts of the prosecution case are that the appellant Purushottamdas Dalmia was one of the partners of the firm known as Laxminarayan Gourishankar which had its head office at Gaya and branch at Calcutta. The Calcutta branch was located at 19, 103 Sambhu Mallick Lane. On April 26, 1952, the appellant applied for a licence for importing rupees one crore worth of art silk yarn. On May 2, 1952, the Joint Chief Controller of Imports, Calcutta, issued a provisional licence. In accordance with the rules, this licence was to be got confirmed within two months by the Deputy or Chief Controller of Imports and on such confirmation it was to be valid for a period of one year. The licence was to be treated as cancelled in case it was not got confirmed within two months of the date of issue. This provisional licence was not confirmed within two months. The appellant was duly informed of the refusal to confirm the licence. The appellant 's appeal against the refusal to confirm the licence was dismissed in September 1952. The provisional licences issued were returned to the appellant. The letter communicating the dismissal of the appeal and the return of the licence was issued from the office of the Joint Chief Controller of Imports on September 26, 1952. The letter dated September 29, 1952, from the office of the Chief Controller of Imports, New Delhi, informed the appellant with reference to the letter dated September 4, 1952, that instructions had been issued to the Joint Chief Controller of Imports and Exports, Calcutta, for re consideration of such cases and that he was advised to contact that authority for further action in the matter. The appellant rightly, did not appear to take this letter to mean that the order of rejection of his appeal was still under further consideration. He did not take any steps to contact the Joint Chief Controller of Imports and Exports on the basis of this letter. Instead, he applied on October 7, 1952, for the return of correspondence. That correspondence was returned to him on October 9, 1952. Nothing happened up to March 31, 1953, on which date the appellant wrote to the Chief Controller of Imports, New Delhi, a long letter expressing his grievance at the action of the Joint Chief Controller of Imports and Exports, Calcutta, and requesting for a sympathetic decision. The Chief Controller of Imports and Exports, by his letter dated April 20,1953, informed the 104 appellant that the order of the Joint Chief Controller of Imports and Exports could not be revised for the reasons mentioned in that letter. This letter gave the wrong number of the appellant 's firm. It mentioned its number as '16 ' instead of the correct number '19 '. In other respects the address of this letter was correct. The appellant states that he did not receive this letter. In August 1953, the appellant met Kalyanam at Calcutta. Kalyanam told the appellant that he could get the licence validated through the good offices of one of his acquaintances, Rajan by name, at Delhi. Both these persons came to Delhi in August, 1953, and visited Rajan. The appellant made over the file containing the licences to Kalyanam who in his turn made over the same to Rajan. Two or three days later Kalyanam returned the licences containing the alleged forged endorsements to the appellant. The forged endorsements related to the confirmation of the licence and its re validation till May 2, 1954. The confirmation endorsement was purported to be dated July 2, 1952, and the re validating one purported to be dated April 25, 1953. Thereafter, orders were placed on the basis of the re validated licence and when the goods arrived attempt was made to clear them at Madras. The clearing office at Madras suspected the genuineness of the confirmation and re validating endorsements and finding the suspicion confirmed, made over the matter to the Police. As a result of the investigation and preliminary enquiry, the appellant and Kalyanam were committed to the High Court for trial. Eight charges were framed. The first charge related to the criminal conspiracy between the two accused and was as follows: "That the said (1) Purushottamdas Dalmia and (2) L. N. Kalyanam along with the person or persons name or names unknown between the months of April and December one thousand nine hundred and fifty three at Calcutta, Howrah, Delhi, Madras and other places were parties to a criminal conspiracy to commit an offence punishable with rigorous imprisonment for two years or upwards, to wit, an 105 offence of forgery by certificate or endorsement of confirmation and an endorsement of validation of the Import Trade Control Licence being licence No. 331913/48 (the Exchange Control Copy whereof is Ext. 5 and the Customs Copy whereof is Ext. 6) purporting to be made by public servant, to wit, the officers and staff of the Chief Controller of Imports and Exports and/or the offence of fraudulently or dishonestly using the aforesaid licence containing the aforesaid forged certificates and endorsements as to the confirmation and validation thereof knowing or having reason to believe the same to be forged documents and thereby they the said (1) Purushottamdas Dalmia and (2) L. N. Kalyanam committed an offence punishable under Sectionl2O B read with section 466 and/or section 471 read with section 466 of the Indian Penal Code within the cognizance of this Court. " Charges Nos. 2, 3 and 4 were with respect to the false endorsements on the copy of the licence Ext. The second charge was under section 466, Indian Penal Code, against Kalyanam alone and charges Nos. 3 and 4 were against the appellant for abetting the offence of forgery by Kalyanam and of using the forged document as genuine. Charges 5, 6 and 7 related to corresponding matters with respect to the licence copy Ext. The eighth charge was against Kalyanam alone and was for his abetting the appellant in his committing the offence of fraudulently and dishonestly using as genuine the Customs Copy of the said licence, Ext. The jury returned a verdict of 'not guilty ' with respect to charges Nos. 3 and 6 and also with respect to the charge of conspiracy under section 120 B read with section 466, Indian Penal Code. The jury returned a verdict of 'guilty ' against the appellant on the charge of conspiracy under section 120 B read with section 471, Indian Penal Code and the other charges Nos. 4 and 7. It is not disputed, and cannot be disputed, that forgeries were committed in the two documents Exts. 5 and 6. The following points were raised by learned counsel for the appellant: 14 106 (i) The offences of using the forged documents as ,genuine were committed at Madras and therefore the Courts at Calcutta had no jurisdiction to try these offences under section 471 read with section 466, Indian Penal Code. (ii) Alternative conspiracies could not be charged as they must be the result of different agreements between the conspirators. (iii) The learned Judge misdirected the jury in putting certain matters before it in the form he had done. The chief criticisms in this connection were that (a) the accused must have known from the ante dating of the confirmation endorsement that the re validation of the licence was a forgery; (b) even if the proper officer of the Department had signed the re validation, it would still be a forgery when it was ante dated; (c) the letter of the Chief Controller of Imports and Exports dated April 20, 1953, though wrongly addressed, must have reached the appellant; (d) the learned Judge expressed his opinions strongly and this could have unduly affected the mind of the jury and forced it to come to the same conclusions. The jurisdiction of the Calcutta High Court to try an offence of criminal conspiracy under section 120 B, Indian Penal Code, is not disputed. It is also not disputed that the overt acts committed in pursuance of the conspiracy were committed in the course of the same transaction which embraced the conspiracy and the acts done under it. It is however contended for the appellant, in view of section 177 of the Code of Criminal Procedure, that the Court having jurisdiction to try the offence of conspiracy cannot try an offence constituted by such overt acts which are committed beyond its jurisdiction and reliance is placed on the decision in Jiban Banerjee vs State (1). This case undoubtedly supports the appellant 's contention. We have considered it carefully and are of Opinion that it has not been rightly decided. The desirability of the trial, together, of an offence of criminal conspiracy and of all the overt acts committed in pursuance of it, is obvious. To establish the offence of criminal conspiracy, evidence of the (1) A.I.R. 1959 Cal. 107 overt acts must be given by the prosecution. Such evidence will be necessarily tested by cross examination on behalf of the accused. The Court will have to come to a decision about the credibility of such evidence and, on the basis of such evidence, would determine, whether the offence of criminal conspiracy has been established or not. Having done all this, the Court could also very conveniently record a finding of 'guilty ' or 'not guilty ' with respect to the accused said to have actually committed the various overt acts. If some of the overt acts were committed outside the jurisdiction of the Court trying the offence of criminal conspiracy and if the law be that such overt acts could not be tried by that Court, it would mean that either the prosecution is forced to give up its right of prosecuting those accused for the commission of those overt acts or that both the prosecution and the accused are put to unnecessary trouble inasmuch as the prosecution will have to produce the same evidence a second time and the accused will have to test the credibility of that evidence a second time. The time of another Court will be again spent a second time in determining the same question. There would be the risk of the second Court coming to a different conclusion from that of the first Court. It may also be possible to urge in the second Court that it is not competent to come to a different conclusion in view of what has been said by this Court in Pritam Singh vs The State of Punjab (1): "The acquittal of Pritam Singh Lohara of that charge was tantamount to a finding that the prosecution had failed to establish the possession of the revolver exhibit P 56 by him. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged. That fact was found against the prosecution and having regard to the observations of Lord Mac Dermoidal quoted above, could not be proved against Pritam Singh Lohara. in any further proceedings between the Crown and him." (1) A.I.R. 1956 section C. 415, 422. 108 In these circumstances, unless the provisions of the Code of Criminal Procedure admit of no other construction than the one placed upon them by the Calcutta High Court, they should be construed to give jurisdiction to the Court trying the offence of criminal conspiracy to try all the overt acts committed in pursuance of that conspiracy. We do not find any compelling reasons in support of the view expressed by the Calcutta High Court. It is true that the Legislature treats with importance the jurisdiction of Courts for the trial of offences. Jurisdiction of Courts is of two kinds. One type of jurisdiction deals with respect to the power of the Courts to try particular kinds of offences. That is a jurisdiction which goes to the root of the matter and if a Court not empowered to try a particular offence does try it, the entire trial is void. The other jurisdiction is what may be called territorial jurisdiction. Similar importance is not attached to it. This is clear from the provisions of sections 178, 188, 197(2) and 531, Criminal Procedure Code. Section 531 provides that: "No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub division or other local area, unless it appears that such error has in fact occasioned a failure of justice. " The reason for such a difference in the result of a case being tried by a Court not competent to try the offence and by a Court competent to try the offence but having no territorial jurisdiction over the area where the offence was committed is understandable. The power to try offences is conferred on all Courts according to the view the Legislature holds with respect to the capability and responsibility of those Courts. The higher the capability and the sense of responsibility, the larger is the jurisdiction of those Courts over the various offences. Territorial jurisdiction is provided just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused 109 who will have to meet the charge levelled againt him and the convenience of the witnesses who have to appear before the Court. It is therefore that it is provided in section 177 that an offence would ordinarily be tried by a Court within the local limits of whose jurisdiction it is committed. It was said in Assistant Sessions Judge, North Arcot vs Ramaswami Asari (1): "The scheme of chapter XV, sub chapter (A) in which sections 177 to 189 appear, seems to me to be intended to enlarge as much as possible the ambit of the sites in which the trial of an offence might be held and to minimise as much as possible the inconvenience which would be caused to the prosecution, by the success of a technical plea that the offence was not committed within the local limits of the jurisdiction of the trying Court. " It is further significant to notice the difference in the language of section 177 and section 233. Section 177 simply says that ordinarily every offence would be tried by a Court within the local limits of whose jurisdiction it was committed. It does not say that it would be tried by such Court except in the cases mentioned in sections 179 to 185 and 188 or in cases specially provided by any other provision of law. It leaves the place of trial open. Its provisions are not peremptory. There is no reason why the provisions of sections 233 to 239 may not also provide exceptions to section 177, if they do permit the trial of a particular offence along with others in one Court. On the other hand, section 233, dealing with the trial of offences, reads: "For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239. " The language is very peremptory. There is a clear direction that there should be a separate charge for every distinct offence and that any deviation from such a course would be only in cases mentioned in sections 234, 235, 236 and 239. It is true that it is not stated in express terms (1) Mad, 779, 782, 110 either in section 235 or section 239, that their provisions would justify the joint trial of offences or of persons mentioned therein in a Court irrespective of the fact whether the offences to be tried were committed within the jurisdiction of that particular Court or not. But such, in our opinion, should be the interpretation of the provisions in these two sections. The sections do not expressly state that all such offences which can be charged and tried together or for which various per. sons can be charged and tried together must take place within the jurisdiction of the Court trying them. The provisions are in general terms. Sub sections (1) to (3) of section 235 provide for the offences being charged with and tried at one trial and therefore provide for the trial of those offences at one trial in any Court which has jurisdiction over any of the offences committed in the course of the same transaction. The illustrations to section 235 also make no reference to the places where the offences were committed. In particular, illustration (c) can apply even when the offences referred to therein were committed at places within the territorial jurisdiction of different Courts. Similarly, section 239 provides for the various persons being charged and tried together for the same offence com mitted in the course of the same transaction are accused of different offences committed in the course of the same transaction. Such offences or persons would not be tried together if some of the offences are committed by some of them outside the jurisdiction of the Court which can try the other offences, if the contention for the appellant be accepted and that would amount to providing, by construction. an exception for these sections. As sections 235 and 239 of the Code are enabling sections, the legislature, rightly, did. not use the expression which would have made it incumbent on the Court to try a person of the various offences at one trial or to try various persons for the different offences committed in the course of the same transaction together. The omission to make such peremptory provision does not necessarily indicate the intention of the legislature that the Court having jurisdiction to try certain offences cannot try an offence committed 111 in the course of the same transaction, but beyond its jurisdiction. No definite conclusion about the approval of the legislature to the interpretation put on the provisions of sections 235 and 239, Criminal Procedure Code, by the Calcutta High Court in Bisseswar vs Emperor (1) or by the Madras High Court in In re: Dani (2) and in Sachidanandam vs Gopala Ayyangar (3) can be arrived at when it is found that there had been some cases which expressed the contrary view. The case law having a bearing on the question under determination is, however, meagre. In Gurdit Singh vs Emperor (4) the conspiracy to murder a person was entered into in the district of Montgomery in Punjab and the attempt to murder that person in pursuance of that conspiracy was made within the jurisdiction of the Magistrate at Roorkee in the United Provinces. Broadway,. J., said: "It appears that, rightly or wrongly, an allegation has been made that the abetment by conspiracy or by instigation took place, in the Montgomery District, and that, therefore, the case can be tried either at Roorkee or in Montgomery. Section 180, Criminal Procedure Code, is clear on this point and no further discussion is needed. " In In re: Govindaswami (5) a person murdered A and B, one after the other, in the same night. The houses of A and B were divided by a street which formed the boundary between two districts. The accused was sent up for trial for the murders of A and B to the various Courts having Jurisdiction to try the offences of the murder of A and of the murder of B. The learned Judges said: "There is a further aspect of the case on which we would like to make some observations. These two cases of alleged murder by the same appellant one after the other that same night brought as they were into the same confession should obviously have been tried by one and the same (1) A I.R. (2) A.I.R. 1936 Mad. (3) Mad. 991, 994. (4) 517. (5) A I. R. 1953 Mad 372, 373. 112 Sessions Judge. The street between the houses of Govindan Servai and Malayappa Konan appears however to have been a boundary between the districts of Tiruchirapalli and Tanjore and one murder was committed in the jurisdiction of the Sessions division of Tiruchirapalli and the other in the jurisdiction of the Sessions division of Tanjore. This appears to have been the only reason why two separate charge sheets were laid in respect of these murders. The learned Public Prosecutor agrees that there was no impediment to the two murders being tried together under section 234(1), Cr. P. C., and it is indeed obvious that one Court should have dealt with both these murders. " The two cases could not be tried by any one of the two Sessions Courts if the provisions of section 234, Criminal Procedure Code, were subject to the provisions of sections 177 to 188 with respect to the territorial jurisdiction of Criminal Courts. In Sachidanandam vs Gopala Ayyangar (1) Odgers, J., relying on the case reported as Bisseswar vs Emperor (2) held that unless the abetment of an offence took place within its territorial jurisdiction, a Court could not avail itself of the provisions of section 239 to try such abetment along with the principal offers. He observed: "I am doubtful about the matter, I must say; but giving the best consideration I can to it, and with this expression of opinion of the Calcutta High Court, I am inclined to think that jurisdiction, being the foundation of the charge, is to be imported or understood as present in all the subsequent procedure set out in the Code; and if that is so, it clearly must govern section 239." The approval of the Legislature of a particular construction put on the provisions of an Act on account of its making no alteration in those provisions is presumed only when there had been a consistent series of cases putting a certain construction on certain provisions. (1) Mad. 991, 994 (2) A.I.R. 1924 Cal. 113 Lastly, an implied support to the view we are inclined to take is to be obtained from the observations of the Judicial Committee in Babulal Choukhani vs The King Emperor ( 1): "Nor is there any limit of number of offences specified in section 239(d). The one and only limitation there is that the accusation should be of offences 'committed in the course of the same transaction '. Whatever scope of connotation may be included in the words 'the same transaction ', it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a, circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it. ,, This indicates that the only limitation on the jurisdiction of the court to charge and try together various persons in pursuance of the provisions of cl. (a) of section 239, Criminal Procedure Code, is that the accusation against those persons should be of offences committed in the course of the same transaction. It cannot be disputed that the accusation against the accused with respect to the overt acts committed by them in pursuance of a conspiracy is with respect to offences committed in the course of the same transaction and that therefore persons accused of these offences can be tried together at one trial in pursuance of the provisions of el. (a) of section 239. We therefore hold that the Calcutta Court had jurisdiction to try the appellant of the offences under section 471 read with section 466, Indian Penal Code, even though those offences, in pursuance of the conspiracy, were committed at Madras. The second contention for the appellant is really to the effect that the appellant was charged with two conspiracies in the alternative and that such a charge (1) (1938) L.R. 65 I.A. 158,175, 176. 15 114 is unwarranted by law. This, however, is not the correct interpretation of the charge of conspiracy framed against the appellant. The charge was one of conspiracy, it being a conspiracy to commit an offence punishable with rigorous imprisonment for two years or upwards. The particular offence to be committed was described in the alternative. One was to commit an offence of forgery and to use the forged document and the other was the offence of fraudulently or dishonestly using the licence containing the forged certificates and endorsements. The expression 'and/or ' in the first charge simply meant that the offences they had conspired to commit consisted either of the offence to commit forgery and subsequently to use the forged document as genuine or the object was merely to use the licence with forged endorsements even though there was not any conspiracy to commit forgeries in the licences. In other words, the charge was that the appellant and Kalyanam entered into a conspiracy to commit offences punishable with rigorous imprisonment for two years or upwards and that the offences contemplated to include the offence of using the licence with forged endorsements and may also include the offence of forging the licence. Thus there was no case of two alternative conspiracies. The conspiracy was one and it being doubtful what the facts proved would establish about the nature of offences to be committed by the conspirators, the charge illustrated the offence in this form. In his charge to the jury the learned Judge said at page 14: "In this case from the circumstances, it may not be very clear whether they actually made an agreement among themselves to do or cause to be done forgery of the document or whether they merely agreed to use it as a genuine document knowing that it was a forged document. Therefore, the charge is in the alternative that either they agreed among themselves to do or cause to be done the forgery of this document or rather, the forgery of the endorsements of confirmation or revalidation; or in the alternative, they agreed among themselves regarding user of such a forged document knowing 115 that it is forged. So both and/or ' is mentioned in the charge, either they agreed to commit forgery or they agreed to use it knowing it is forged or they agreed to do both, both to commit forgery and use it knowing it to be a forged document. " Such a charge is justified by the provisions of section 236 of the Code. We are therefore of the opinion that the charge of conspiracy does not suffer from any illegality. We have carefully considered all that has been said in connection with the alleged misdirections in the charge to the jury and are of opinion that the charge does not suffer from this defect. The Judge has at places expressed in unequivocal language what appears to him to be the effect of certain pieces of evidence. But that, in our opinion, has not been in such a setting that it be held that the jury must have felt bound to find in accordance with that opinion. The Judge has, at various places, stated that the jury was not bound by his opinion, that it had to come to its own conclusion on questions of fact and that it was the function of the jury to decide all questions of fact. There is nothing wrong in telling the jury that even if the endorsements had been made by the proper departmental officer and they were ante dated, forgery would have been committed. That is the correct proposition of law. The ante dated document would be a false document. Knowledge of ante dating the endorsements, naturally conveyed knowledge of the commission of forgery. The mistake in the letter dated April 20, 1953, from the Chief Controller of Imports and Exports, is not such as to lead to the conclusion that the letter could not have been delivered to the proper addressee. The appellant 's firm is located at 19, Sambhu Mallick Road and the address of this letter gave the number as 16. Shop No. 16 could not have been at much distance from Shop No. 19. The postman delivering letters at the two shops must be the same. Postmen get to know the regular addressees by their names and ordinarily locate them even if there be some slight error or even omission in the address. The letter 116 addressed to the appellant 's firm is not proved to have returned to the dead letter office or to the Chief Con troller of Imports and Exports. If it was delivered by the postman at the Shop No. 16, ordinary courtesy requires that shop would have sent over the letter to the neighboring Shop No. 19. The appellant 's conduct in not taking any action to find out what was the result of his representation to the Chief Controller of Imports and Exports is consistent with the view that he did receive the reply of the Chief Controller of Imports and Exports. In the circumstances, an expression of opinion that the letter would have reached the appellant cannot be said to amount to a misdirection. The learned Judge is perfectly justified to ask the jury to take into consideration the probabilities of a case, where no definite evidence, in connection with an incidental matter, exists. We do not consider that the contentions raised do amount to misdirections. In view of the above, we, see no force in this appeal and accordingly dismiss it. Appeal dismissed.

The appellant was convicted by the Court of Session, High Court, Calcutta, of offences under section 120B read with section 471 and section 471 read with section 466 of the Indian Penal Code in respect of an import licence. His appeal against the order of conviction and sentence passed by the trial judge was summarily dismissed by the High Court. Although the conspiracy was entered into at Calcutta the offences of using the forged documents as genuine were committed at Madras. It was contended on behalf of the appellant in this Court that the said offences having been committed outside the territorial jurisdiction of the Calcutta Courts, they had no jurisdiction to try the offences under section 471 read with section 466 of the Indian Penal Code, even though committed in pursuance of the conspiracy and in course of the same transaction. Held, that the desirability of trying all the overt acts committed in pursuance of a conspiracy together is obvious and SS. 177 and 239 of the Code of Criminal Procedure, properly construed, leave no manner of doubt that the court which has the jurisdiction to try the offence of criminal conspiracy has also the jurisdiction to try all the overt acts committed in pursuance of it even though outside its territorial jurisdiction. jiban Banerjee vs State, A.I.R. 1959 Cal. 500, overruled. Pritam Singh vs The State of Punjab, A.I.R. 1956 S.C. 415, referred to. Babulal Choukhani vs The King Emperor, (1938) L.R. 65 I.A. 158, relied on. It is evident from the relevant provisions of the Code of Criminal Procedure that of the two types of jurisdiction of a criminal court, namely, (1) that of trying a particular offence and (2) its territorial jurisdiction, while the former goes to the root of the matter and any transgression of it renders the entire trial void, the latter is not of a peremptory character and leaves the place of trial open. Assistant Sessions judge, North Arcot vs Ramaswami Asari, Mad. 779, referred to. Although SS. 235 and 239(a) of the Code of Criminal Proce dure do not expressly so provide, there can be no doubt that 102 they contemplate the joint trial of offences and persons mentioned therein in a court whether or not all the offences to be tried by it are committed within its territorial jurisdiction, the only limitation being that the offences must have been committed in the course of the same transaction. Section 177 of the Code, therefore, does not control section 239. No presumption as to the approval of the Legislature of a particular construction of a statute can be drawn from the absence of any statutory modification of its provisions unless there is a consistent series of decisions in favour of that construction. Case law discussed.

In respect of its business as a middleman relating mainly to sales of coal and coke in the course of inter State trade, the appellant firm was assessed to Central sales tax under section 8(2) of the , by the Commercial Tax officer. The appellant without availing itself of the remedies under the Act, applied for and obtained special leave to appeal under article 136 of the Constitution of India directly against the order of assessment When the appeal was taken up for hearing, the question was raised as to whether it should be entertained, when even the facts had not been finally determined by the final fact finding authority under the Act, nor had the jurisdiction of the High Court been invoked to exercise its powers under the Act. Held, that an assessee is not entitled ordinarily to come up to the Supreme Court directly against the judgment of the Assessing Authority and invoke the Court 's jurisdiction under article 136 of the Constitution without first exhausting the remedies provided by the taxing statutes. Mahadayal Premchandras vs Commercial Tax Officer Calcutta, and The State of Bombay vs M/s. Ratilal Vedilal, [1961] 2 section C. R. 367, explained. Chandi Prasad Chokhani vs The State of Bihar, [1962] 2 section G. R. 276 and Kanhaiyalal Lohia v, Commissioner of Income Tax Bengal, [1962] 2 section C. R. 839, followed. ^ Held, further, that in the present case, in which there, were no special circumstances and in which the facts had not yet been finally determined, the appeal must be considered to be incompetent.

The respondent manufactures cigarettes at its factory upon which Excise Duty is levied by the Assistant Collector of Central Excise, Calcutta Division. The rates varied according to the provisions of Finance Act, 1951, and 1956 and the Additional Duty of Excise (Goods of Special Importance) Act, 1957. The Company was required to furnish quarterly consolidated price lists and the particulars of cigarettes to be cleared were furnished by the Company as required by Rule 9 of the Central Excise Rules. For facilitating collection of duty, the Company maintained a large sum of money in a Current Account with the Central Excise authorities, who used to debit this account for the duty leviable on each stock of cigarettes allowed to be removed. The Company used, to furnish its quarterly price lists to the Collector ,on forms containing nine columns and until July 1957, so long as this form was used by the Company, no difficulty was experienced in checking prices. But after this column was dropped from the new form of six, columns, the Excise authorities encountered some difficulty in valuing the cigarettes for levying Excise Duty. They therefore, changed the basis of assessment from the Distributors selling price to the wholesale cash selling price at which stockists or agents were selling the same in the open market. The authorities informed the Company of this change of basis on 5 11 58 by letter, which also asked the Company to furnish its price lists immediately for determining the correct assessable value of its cigarettes. Two days thereafter, the authorities served a notice upon the Company demanding payment of Rs. 1,67,072,40 P. as Basic Central Excise Duty and Rs. 74,574,85 P. as Additional Central Excise Duty on ground of short levy for a certain brand of cigarettes cleared from Company 's Factory between 10th August 1958, After another five days, the authorities sent another notice demanding more than Rs. 6 lakhs as Basic Central Excise Duty and more than Rs. 2 lakhs as Additional Central Excise Duty. On the following day, the authorities sent a third notice under Rule 10 A of the Central Excise Rules, demanding more than Rs. 40,000/as Central Excise Duty and more than Rs. 16,000/ as Additional Duty. The Company challenged these notices by a writ before the High Court. , The High Court quashed the notices on the ground that the Company had not been given an opportunity of being heard. No appeal was filed by the other side against this decision, but when the case went back to the Collector, he issued P. fresh notice on 24 4 1960. By this notice, for certain periods, a sum of more than Rs. 10 lakhs was levied as Basic Central Excise Duty and a total sum of more than Rs. 3 lakhs as Additional Duty, and this amount had been provisionally debited in the Company 's Account on the basis of the price list supplied by the Company and the Company was informed that if it desired a personal hearing, it 823 can appear before the authorities to make the final assessment in accordance with law. The Company challenged the validity of this notice dated 24 4 60 on the ground that the notice was barred by limitation and was 'issued without jurisdiction, so that no proceedings could be taken. The learned single Judge, as well as the Divisional Bench of the High Court allowed the petition on the ground that the notice was barred by time under Rule 10 of the Central Excise Rules because the notice was held to be fully covered by Rule 10 and by no other rule. The case was certified under article 33(a), (b) and (d) for an appeal to this Court. Rule 10 of the Central Excise Rules provides that when duties or charges have been short levied through inadvertence or misconstruction etc., the person chargeable with the duty so short levied, shall pay the deficiency or pay the amount paid to him in excess on written demand by the proper officer within three months from the date on which the duty or charge is paid or adjusted in the owner 's account, if any, or from the date of making the refund. It was contended that this was substantially a provisional assessment covered by Rule 10 B. The Division Bench of the High Court, however, refused to agree that the impugned notice of 24 460 fell under Rule, 10 A. The reason given for this refusal was that such a case was neither taken before the learned single Judge, nor could be found in the grounds, of the appeal despite the fact that the appellant had ample opportunity of amending its Memorandum of Appeal. Allowing the appeal. HELD : (i.) That the High Court erroneously refused to consider whether the impugned notice fell under Rule 10 A. The applicability of Rule 10 A was very much in issue because the Collector in his affidavit denied that Rule 10 A of the said rules had any application to the facts of the case. (ii) It cannot be accepted that merely because the current account kept under Rule 9 indicated that an accounting had taken place, there was necessarily a legally valid or complete levy. The making of debit entries was only on ground of collection of the tax. Even if payment or actual collection of tax could be spoken of as a defective levy, it was only provisional and not fINal. It could only be closed or invested with validity after carrying out the obligation to make an assessment that really determines whether the levy is short or complete. It is not a faCtual or presumed levy which could prove an assessment. This has to be done by proof of the actual steps taken which constitute assessment. [836D] A mechanical adjustment, or settlement of accounts by making debit entries was gone through in the present case, but it cannot be said that any such adjustment is assessment which is a quasi judicial process and involves due application of mind to the facts, as well as to the requirements of law. Rule 10 and 10 A seems to be so widely worded as to cover any inadvertence error etc.; whereas Rule 10 A would appear to cover any deficiency in duty if the duty has for any reason, been short levied, except that it would be outside the purview of Rule 10 A if its collection is expressly provided or by any rule. Both the rules as they stood at the relevant time, deal with collection, and not with assessment. In N. B. Sanjana 's case ; this Court indicated that Rule 10 A which was residual. in character, would be inapplicable if a case fell within a specified category of cases mentioned in Rule 10. It was pointed out in Sanjana 's case that the reason for the addition 824 of the new rule 10 A was a decision of the Nagpur (Chotabhai Jethabhai 's case; A.I.R. 1952 Nagpur 139), so that a fresh demand may be made on a basis altered by law. The excise authorities had made a fresh demand under Rule 10 A, the validity of which was challenged, but it was upheld by a Full Bench decision of the High Court of Nagpur. This Court, in Chotabhai Jethabhai 's case also rejected the assessee 's claim that Rule 10 A was inapplicable after pointing out that the new rule was specifically designed for the enforcement of the demand like the present one. [836F 837E] (iii)The present case, therefore, falls within the residuary clause of unforeseen cases from the provisions of section 4 of the Act, read with Rule 10 A, an implied power to carry out or complete an assessment, not specifically provided for by the rules, can be inferred. Therefore, it is wrong to hold that the case falls under Rule 10 and not under Rule 10 A.

An application for leave to appeal to the High Court under section 417(3) Code of Criminal Procedure against an order of acquittal by a Magistrate dated August 31, 1965 was filed on November 1, 1965. It was claimed that two days were necessary for obtaining the certified copy of the order of the Magistrate. The application would be in time if these two days were deducted. The High Court accepted the appeal and convicted the appellant. In appeal to this Court against his conviction the appellant contended that the period of 60 days mentioned in section 417(4) was not a period of limitation within the meaning of section 12 of the Limitation Act and that the sub section barred the jurisdiction of the High Court to deal with the application if a period of 60 days had expired from the date of the order of acquittal. HELD : The application under section 417(3) to the High Court was within time. Section 417(4) itself prescribes a period of limitation; it was open to the legislature to prescribe a period of limitation in the code itself. In the context of section 417(4) the word "entertain" means "file or receive by the court" and it has no reference to the actual hearing of the application for leave to appeal; otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put up for hearing before the High Court within sixty days of the order of acquittal. [901 D F] Kaushalya Rani vs Gopal Singh, , 987, Anjanabai vs Yeshwantrao Daplatrao Dudhe, I.L.R. (1961) Bom. 135, 137 and Lakshmi Rattan Engineering Works vs Asstt. Commissioner Sales Tax; , , referred to.

The appellant. was tried by the Sessions judge and acquitted of the charge of murder. On appeal the High Court convicted him and sentenced him to imprisonment for life. The appellant applied for and was granted a certificate under Art 134 (1) (c) of the Constitution for appeal to the Supreme Court on the ground that there was unusual delay in delivering the judgment of the High Court and that the judg ment failed to deal with certain questions of fact which were raised at the hearing of the appeal. Held, that the certificate granted by the High Court was not a proper certificate. The mere ground of delay in giving judgment did not fall within the words "fit one for appeal to the Supreme Court" in article 134 (1) (c). The points raised in the appeal before the High Court were questions of fact and the High Court was not justified in passing such questions on to the Supreme Court for further consideration thus converting the Supreme Court into a court of appeal on facts. Haripada Dev vs State of. West Bengal; , and Sidheswar Ganguly vs State of West Bengal, [1958] section C. R. 749, followed. Banaswmi Parshed vs Kashi Krishna Narain, (1900) L. R. 23 1. A I I and Radhakrishna Ayyar vs Swaminathna Ayyar, (1920) L. R. 48 I. A. 31, referred to.

The respondents had been detained under the Preventive Detention Act. On their release their employer the appellant Board, commenced disciplinary proceedings and issued show cause notices why their services should not be terminated on the principal ground that they had been detained for acts prejudicial to the maintenance of public order. Not being satisfied with their answers, the appellant terminated their services. The respondents ' appeals to the Chairman of the appellant Board were dismissed. Thereupon, the respondents filed writ petitions in the High Court, challenging the orders on the grounds that reasonable opportunity was not given to them, and that even the relevant statutory provisions had been contravened. The petitions were dismissed, but were allowed by a Division Bench on appeal. In the appeal to this Court, HELD: If the appellants wanted to take disciplinary action against respondents on the. ground that they were guilty of misconduct, it was absolutely essential that the appellant should have held a proper enquiry instead of equating the detention to a conviction by Criminal Court. At this enquiry, reasonable opportunity should have been given to the respondents to show cause and before reaching its conclusion, the appellant was bound to lead evidence against the respondents, and give them a reasonable chance to test the evidence in accordance with the rules of natural justice. Therefore, the Court of appeal was right in taking the view that in the departmental enquiry which the appellant held against the respondents it was not open to the appellant to act on suspicion, and inasmuch as the appellant 's decision was based only upon the detention orders and nothing else, there could be little doubt that the said conclusion was based on suspicion and nothing more. [459E H] Case law referred to: An obligation to hold such an enquiry is also imposed on the employer by cl. 36(3) of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951, and cl. 45(6) of the Scheme of 1956. [459G]

The appellant imported 1,65,000 pieces Chinese silver dollars from Tibet through Sikkim State under two Reserve Bank import licences. As there were two licences the dollars were divided into two lots. One lot bore the mark 'H.D. ' and the other 'H.N. ' The appellant made two applications hearing Nos. 32 and 34 to the Officer in charge, Land Customs Station, for the grant of permits for passing the goods across the frontier. Application No. 32 related to the lot marked 'H.N. ' and the application No. 34 related to the lot marked 'H.D. ' On May 16, 1957 the two consignments arrived at the land customs station, Kalimpong and were examined and appraised by the land customs officer in charge of the station. On the duty being paid, the officer endorsed the applications certifying that the duty was paid and permitting the import of the goods. 'The consignments there were then delivered at Siliguri to the carriers for carriage by air to Dum Dum. On May 17, 1957 one consignment together with application No. 34 was sent by plane from the Sonapur airstrip and on the same date reached Dum Dum and was delivered to the appellant at Calcutta. On May 18, 1957 the Range Officer, Matidhar seized the second consignment bearing the marks 'H.D. ' together with application No. 32 when they were about to be despatched from the Sonapur airstrip. The seizure was made under section 5(3) of the Land Customs Act on the ground that the mark on the consignment was 'H.D. 'whereas the accompanying import application No. 32 related to the consignment marked 'H.N. ' The Collector of Land Customs, Calcutta after hearing the appellant held that offences under section 5(3) and section 7(1) of the , and section 167(8) read with of the had been committed by the appellant. He directed confiscation of the goods under those sections read with section 23A of the Foreign Exchange Regulation Act, 1947. Departmental remedies having failed the appellant filed a writ petition in the High Court. Appeal in this Court was filed by the appellant with certificate. The questions that came up for consideration were inter alia: (i) whether the seizure and confiscation. of the goods was authorised by section 5(3) of the , and (ii) whether the finding that the appellant had committed offences under that section and other provisions of law was perverse and liable to be quashed. HELD: (i) Section 5(3) of the . by itself does not require that all imported goods must always at all times, and at all places be accompanied by a permit. After the permit the goods become a part and parcel of the mass of other like goods in India. There is no duty 534 to keep the permit with the consignment for aH times and at all places. Nor is the importer under a duty to keep the consignment in his hands. He can sell portions of it to different buyers and obviously he could not give the permit to every consumer. [540 G H] Before March 29, 1968 when the Central Board of Revenue framed the Chinese Silver Dollars (Import) Rules, there was no provision in the Act or Rules in force which required the appellants to keep the permits at Sonapur airstrip with the dollars seized on that date. Section 5(3) was not infrinrged when the carriers did not produce the permit concerning the goods at the Sonapur airstrip on May 18, 1957, and the goods could not be confiscated under section 5(3). [541 C] (ii) Nor were the goods liable to confiscation under section 7(1) of the . There was no evidence to show that the seized dollars were not covered by licences. On the materials on record the conclusion was irresistible that due to the inadvertence of the carriers the permits were inter changed and that application No. 34 was sent with 'H.N. ' consignment and application No. 32 was kept with 'H.D. ' consignment. No inference of smuggling could be drawn from the fact that 'H.D. ' consignment was found with application No. 32. In the circumstances the finding that the appellant had smuggled the goods and was guilty of an offence under section 7(1) of the must be characterised as perverse. [541 D E; 542 B C] (iii) It was also not proved that the appellant committed any offence ' under sections 8(1) and 23A of the Foreign Exchange Regulations Act read with sections 19 and 167(8) of the . Although the offence under these sections may be proved by circumstantial evidence in the present case there was no evidence direct or circumstantial to prove the offence. [542 D] Issardas Daulat Ram vs Union of India, [1962] Supp.1 S.C.R. 358, referred to. (iv) Having regard to the facts on the record no tribunal could reasonably come to the conclusion that the dollars were liable to confiscation if they properly understood the relevant enactments. In the circumstances the order of the Collector confiscating the goods was liable to be quashed by a writ of certiorari. [542 F] Regina vs Medical Appeal Tribunal, ; , 582, applied.

At the sale held by the Official Liquidator under the orders of the Bombay High Court, the appellant a public limited company, purchased the "Hirji Textile Mills" minus its goodwill and its workmen who were discharged earlier. The appellant invested some fresh capital in the business, renovated the machinery and employed workmen on fresh contracts which included 70% of the workmen formerly working in that factory and commenced to produce certain never types of things at the factory w.e.f. November 12, 1955, after obtaining a new licence to run it. When by the end of February, 1956 the Regional Provident Fund Commissioner made certain enquiries about the working of the factory in order to enforce the provisions Provident Fund Act against the appellant, the appellant wrote to him stating that The factory was an infant factory having been established on November 12,1955 and the period of three years had not elapsed from that date within the meaning of Section 16(1) (b) of the Act. When the Regional Provident Fund Commissioner was not convinced about its explanation, the appellant first filed a writ petition under Article 226 of the Constitution before High Court of Bombay in Miscellaneous Application No. 76 of 1957 challenging the applicability of the Act to the factory and after withdrawing it, filed Short Cause Suit No. 2088 of 1958 before the City Civil Court at Bombay for a declaration that the Act and the scheme framed thereunder could not be enforced against the factory until the expiry of three years from November 12, 1955 and that the appellant was not liable to make any contributions under the Act. The trial Court dismissed the suit holding, that in view of the several facts established in the case it could not be presumed that a new factory was established by the 517 appellant on November 12, 1955, that the continuity of the old factory had A not been broken and as such the appellant was liable to make contributions under the Act. The judgment of the trial Court was affirmed by the Bombay High Court in Appeal No.406/64. Hence the appeal by special leave. Dismissing the appeal, the Court, ^ HELD: 1.1. Every statute should be construed so as to advance the object with which it is passed and as far as possible, avoiding any construction which would facilitate evasion of the Act. [521 C] 1.2. In consonance with the directions enshrined in Article 43 of the Constitution, Employees ' Provident Fund Scheme is intended to encourage the habit of thrift amongst the employees and to make available to them either at the time of their retirement or earlier, if necessary, substantial amounts for their use from out of the provident fund amount standing to their credit which is made up of the contributions made by the employers as well as the employees concerned. The Act being a beneficent statue and section 16 of the Act being a clause granting exemption to the employer from the liability to make contributions, section 16 should receive a strict construction [521A B, 522A] 2.1. The criterion for earning exemption under section 16(1)(b) of the Act is that a period of three years has not yet elapsed from the date of establishment of the factory in question. It has no reference to the date on which the employer who is liable to make contributions acquired title to the factory which once established may be interrupted on account of factory holidays, strikes, lock outs, temporary breakdown of machinery, periodic repairs to be effected to the machinery in the factory, non availability of raw materials, paucity of finance etc., and also on account of an order of court as in the present case. Interruptions in the running of factory which is governed by the Act brought about by any of these reasons without more cannot be construed as resulting in the factory ceasing to the factory governed by the Act and on its restarting it cannot be said that a new factory is or has been established. On the resumption of the manufacturing work in the factory it would continue to be governed by the Act which does not state that any kind of stoppage in the working of the factory would give rise to a fresh period of exemption. In other words the period of three years should be counted from the date on which the factory was first established and the fact that there had been a change in the owners p makes no difference to the counting of period. [522A D, 524D E] Lakshmi Rattan Engineering Work vs Regional Provident Fund Commissioner, Punjab & Ors. SC, reiterated. Chaganlal Textile Mills Pvt. Ltd. Y.P.A. Bhaskar Misc. Appln. No. 289 of 1956 disposed of on November 5, 1956: M/s. Bharat Board Mills Ltd. vs The Regional Provident Fund Commissioner & Ors. Vegetable Products Ltd. vs Regional Provident Fund Commissioner W. Bengal & Ors. ; Jamnadas Agarwala & Anr. vs The Regional Provident Fund Commissioner West Bengal & Ors. ; 518 Robindra Textile Mills vs Secretary Ministry of Labour Govt. of India New Delhi & Anr A.I.R. 1936 Punjab 55. Hindustan Electric Co. Ltd. vs Regional Provident Fund Commissioner Punjub & Anr. A I.R 1959 Punjab 27 Regional Provident Fund Commissioner Punjab & Anr. v Lakshmi Rattan Engineering Works Ltd M/s. R.L. Sahni & Co vs Union of India represented by the Regional Provident Commissioner Madras & Anr. A.l.R. ; Kunnath Textile vs Regional Provident Fund Commisioner ; The New Ahmedabad v Bansidar Mills Pvt Ltd. Ahmedabad vs Union of India & Ors. A I R. 1968 Gujarat 71; approved. Provident Fund Inspector Trivendrum vs Secretary N.S. section Co operative Society Changanacherry ; Vithaldas Jagnnathdas & Anr. vs The Regional Provident Fund Commissioner Madras & Anr. ; distinguished.

No. 24 of 1960. Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights. C. B. Aggarwala and K. P. Gupta, for the petitioners. N. section Bindra and D. Gupta, for respondents Nos. 1, 2 and 4. K. L. Mehta and K. L. Hathi, for respondent No. 3. 1961. April 19. The Judgment of the Court was delivered by section K. DAS, J. This is a writ petition under article 32 of the Constitution in respect of a dharmasala, an adjoining temple and some appurtenant shops, standing on a piece of land near the railway station at Barnala, district Sangrur, in the State of Punjab. The petitioners are sons, grand sons and daughter of one Lala Ramji Das, and widow of one Tara Chand, a predeceased son of Lala Ramji Das. The case of the petitioners in short is that Lala Ramji Das, who died in 1957, had built the dharmasala, temple and shops out of the funds of the joint family consisting of himself and the petitioners near about the year 1909 and during his life time managed the dharmasala, temple and shops on behalf of the joint family. The dharmasala was built for the benefit of the traveling public and was used as a rest house by travelers; three deities were installed in the 71 temple and members of the public offered worship therein, though there was no formal dedication; and the shops were let out on rent for the upkeep of the dharmasala and temple. They allege that after the Sri death of Ramji Das they came into possession of the properties in question but in January, 1958, the respondents, namely, the State of Punjab, some of its officials ' and the Municipal Committee, Barnala, by force and without any authority of law dispossessed them from the dharmasala in question and further deprived them of the control and management of the said dharmasala and temple and are seeking to interfere with their management and control of the shops appurtenant thereto. The Municipal Committee, it is stated, was put in possession of the dharmasala and has opened its office in its main room. The petitioners first asked for a copy of the orders in pursuance of which these acts were committed, but were unable to obtain the same. The petitioners then made an application under article 226 of the Constitution in the Punjab High Court, which was rejected on the preliminary ground that the matter involved disputed questions of fact. An appeal was also dismissed on the same ground. The petitioners then filed the present petition and contend that the orders in pursuance of which the acts of dispossession have been committed as well as the acts themselves, constitute a flagrant infringement by the State and its officials of the fundamental right of the petitioners to hold and possess the properties in question unless and until they are evicted in due course of law, and accordingly they have prayed that: (i) a suitable writ, order or direction be issued quashing the illegal orders of the State Government, the Deputy Commissioner, Sangrur, and the Sub Divisional Magistrate, Sangrur, if any, culminating in the handing over of possession, management and control over the dharmasala, the temple and the shops to the Municipal Committee, Barnala, district Sangrur; (ii) a suitable writ, order or direction be issued 72 prohibiting the respondents from interfering with the management and control of the petitioners over the temple and the shops and with the realization of rent of the shops by the petitioners; (iii) a suitable writ, order or direction be issued to the respondents to withdraw their possession, control and management over the dharmasala and other properties and to put the petitioners in possession over the same; and (iv) such other and further writ, order or direction be issued which this Court may deem fit and proper in the interests of the petitioners. It is necessary at this stage to recite briefly some of the earlier history relating to the dharmasala, temple and shops, so far as such history is available from the undisputed documents filed before us. It is not disputed that the land on which the dharmasala, temple and shops stand was "nazul" property of the then State of Patiala. Sometime in 1909 Lala Ramji Das who was carrying on a joint family business in the name and style of Faquir Chand Bhagwan Das asked for permission to construct a dharmasala on the land in question which was near Barnala railway station and therefore convenient, to travellers who come to that place. At first, permission to build a dharmasala was granted by the then Patiala Government in favour, of the Choudhuris of Barnala bazar, who. were unable however to get together adequate funds for the purpose. Ramji Das then asked for sanction to construct the dharmasala in the name of the firm Faquir Chand Bhagwan Das and at the firm 's expense sometime in May, 1909. This sanction was granted and communicated to Ramji Das by the Assistant Surgeon inching of Barnala hospital, who was presumably in charge of public health arrangements at Barnala. The sanction was made subject to the following conditions (see exhibit A), "(1) No tax be, taken for this land from them. (2) The shopkeepers will arrange 'Piao ' (shed for the arrangement for supplying drinking water) for the passengers and will maintain it. 73 (3) Plans of the building which they want to construct should at first be presented before me (Assistant Surgeon in charge). (4) They will be responsible for observing cleanliness and sanitary rules and will construct good drains. (5) No permission to construct any shop will be granted. The building will be constructed only for the passengers. (6) If the abovementioned conditions are not fulfilled, the State will dispossess them of the land. " In 1909 the dharmasala was constructed with an inscription on stone to the effect "Dharmasala Lala Faquir Chand Bhagwan Das, mahajan, 1909. " It appears that though one of the conditions was that permission to construct shops would not be granted, a number of shops were later constructed with the permission of the authorities concerned for meeting the expenses for the maintenance of the temple and dharmasala. Soon after, that is in 1911, there was a complaint against Ramji Das (exhibit B) in which allegations were made to the effect that Ramji Das was utilising the dharmasala for his private purpose, etc. Nothing appears to have come out of this complaint. Sometime in January, 1925, Ramji Das himself appears to have made a statement to the Tahsildar, Barnala, in which he said: "This inn land was given to me by the Govern ment by way of wakf. I invested money on the building from my own funds for charitable purpose. I do not want to reap any benefit. The Government will be within its rights to keep watch over it and maintain its accounts anyway it likes but it may not be used as a Government building and nor anyone be allowed to have a permanent abode therein. It may be specifically reserved for the convenience of incoming and outgoing passengers. The income derived from the shops by way of rent be spent over its repairs. The income of rent is Rs. 15 to 16 per month. I have appointed one man as inn keeper at the rate of Rs. 11 per month out of 74 this income for its supervision. He will remain over there permanently." This statement was made in the course of an enquiry which was started earlier, the exact date of which is not ascertainable from the documents in this record but may have been instituted in 1920. On April 7, 1928, the Revenue Minister, Patiala State, passed an order which said that though the land on which the dharmasala had been built was originally Government land (nazul property), it would not be proper to declare it as such and the dharmasala should continue to exist for the benefit of the public. The order concluded with the following direction: "It would be proper if the inn be kept as it is for the public benefit, but it is hereby ordered that neither Ramji Das nor any other person will be competent to transfer it in any manner. Ramji Das will look after it in the capacity of a Manager and the income accruing therefrom will be spent on the inn for the public benefit. And if Ramji Das or any other person or Manager will transfer it, then any such transfer will be considered unlawful and invalid and in such an event the Government will eschewer it but even then this inn will be used for the public benefit. No Government servant will make therein a permanent abode and nor would it be sold as Nazool property. " The trouble did not end however with the order of the Revenue Minister. A re investigation appears to have been ordered, presumably at the instance of the Sanatan Dharma Sabha, Barnala. Again, an enquiry was hold and it was found by the Nazim, district Barnala, that the dharmasala and temple were constructed by Ramji Das; that he employed three employees one bandit for worship etc., one for looking after the travelers, and a third to keep the premises clean; that there was no order to take accounts from Ramji Das; and that repairs etc. were carried out from the rents of the shops. The Nazim, however, said in his order that the 'Sarai ' was declared to be that of the State, and presumably he said so on the ground that it stood on Government land. Later, Ramji Das 75 obtained further permission to make a raised platform and other extensions, details whereof are not necessary for our purpose. We then come to 1954. On September 10, 1954, one Gopal Das, Secretary, Congress Committee, Barnala, filed a petition to the Revenue Minister, Patiala, in which various allegations were made against Ramji Das and it was prayed that Ramji Das be suspended and the management of the dharmasala etc. be taken over by the State. This petition was enquired into by the Tahsildar, who again found that the dharmasala was constructed by Ramji Das on Government land, that the dharmasala was for public benefit and that Ramji Das had been managing it all along. He reported, however, that Ramji Das was bound to render accounts and as he had failed to do so and considered the property to be his own, he should be removed and past accounts called for. The matter was then referred to the Legal Remembrance of the State Government. This officer referred to the earlier order of the Revenue Minister and pointed out that the dharmasala and temple, though built on Government land, were not Government property and even though Ramji Das was repudiating the existence of a public trust, he was working as trustee of a trust created for public purposes of a charitable or religious nature and could be removed only as a result of a suit under section 92, Civil Procedure Code. The matter appears to have rested there and no further action was taken against Ramji Das on the petition of Gopal Das. We may refer here to a somewhat earlier order of the Revenue Minister dated December 13, 1954, in which there was a direction that a deed of trust should be executed appointing Ramji Das and two other persons as trustees. No such trust deed appears to have been executed. We now come to the last part of the story. After the death of Ramji Das on December 10, 1957, the petitioners continued the management of the dharmasala, temple and the shops appurtenant thereto. This was not seriously disputed before us. The petitioners 76 paid the necessary taxes and electric charges for which they obtained receipts; they also realised the rent of the shops. On or about December 23, 1957, Gopal Das and some others describing themselves as members of the public, Barnala, made an application that since Ramji Das was dead, new arrangements should be made for the proper management of the dharmasala which is used for the benefit of the public. This led to fresh researches into the old papers, and this time the Sub Divisional Officer, Barnala, recommended that in the interest of Government (sometime before this Barnala come into the Punjab State) the Municipal Committee, Barnala, should take immediate charge of the management of the dharmasala. This recommendation was affirmed by the Deputy Commissioner, Sangrur, who wrote to the Punjab Government for necessary sanction of the recommendation. The sanction has not been produced before us, but learned Counsel for the respondents has produced before us the letter which the Deputy Commissioner wrote. This letter says: "Subject:Management of 'Sarai ' near Railway Station, Barnala. One Shri Ramji Das was appointed as Manager vide order of the Revenue Minister of the erstwhile State of Patiala dated 26 12 1987Bk of the property, as cited subject. The Manager was only to look after the property and to utilize the income of the property for the improvement of the 'Sarai ' for publi c welfare. Shri Ramji Das, manager is reported to have died and there is none else to manage 'Sarai '. The section D. O., Barnala, has recommended that in the interest of the Government, the management of the 'Sarai ' may immediately be entrusted to the M. C., Barnala. I also fully agree with the views of the section D. O., Barnala, who has accordingly been directed to hand over the management to the M. C. in anticipation of approval of the Government." In pursuance of the direction given by the Deputy Commissioner, the Kanungo presumably in accordance 77 with the orders of the Sub Divisional Officer, Barnala, dispossessed the petitioners from part of the dharmasala on January 7, 1958, and made over charge of the same to the Municipal Committee, Barnala. The petitioners challenge these orders as being without authority of law and complain that these orders and the acts committed in pursuance thereof, amount to a flagrant violation of their fundamental rights under articles 14, 19 and 31 of the Constitution. They say that they have been deprived of property by the State and its officers in pursuance of executive orders without authority of law; they have been denied equal protection of the laws; and their fundamental right to hold property has been violated in the most arbitrary manner which is destructive of the basic principles of the rule of law guaranteed by the Con stitution. On behalf of the respondents an affidavit has been made by the Sub Divisional Officer, Barnala, in which it has been stated, inter alia, that "the property is trust property of a public and charitable character and the petitioners are not entitled to claim any property rights in respect of the same". Assuming that the property is trust property of the nature suggested, no attempt has been made in the affidavit to show under what authority of law the State or its executive officers were justified in taking the action that was taken against the petitioners in respect of the dhar masala. Learned Counsel for the respondents has sought to justify that action on the ground that the petitioners were mere trespassers and as the land on which the dharmasala stood belonged to the State, the respondents were entitled to use the minimum of force to eject the trespassers. Secondly be has contended, on the strength of the decision of this Court in Sohan Lal vs The Union of India (1), that there is a serious dispute on questions of fact between the parties in this case and also whether the petitioners have any right or title to the subject matter of dispute; therefore, proceedings by way of a writ are not appropriate in this case inasmuch as the decision of the (1) [1957] S.C.R. 738. 78 Court would amount to a decree declaring a party 's title and ordering restoration of possession. We consider that both these contentions are unsound and the petitioners have made out a clear case of the violation of their fundamental rights. There has been some argument before us as to the true legal effect of the sanction granted in 1909 to Ramji Das subject to the conditions adverted to earlier: whether it was a lease in favour of the firm Faquir Chand Bhagwan Das; whether it was a licence coupled with a grant or an irrevocable licence within the meaning of section 60(b) of the Easements Act, 1882. These are disputed questions which we do not think that we are called upon to decide in the present proceeding. The admitted position, so far as the present proceeding is concerned, is that the land belonged to the State; with the permission of the State Ramji Das, on behalf of the joint family firm of Faquir Chand Bhagwan Das, built the dharmasala, temple and shops and managed the same during his life time. After his death the petitioners, other members of the joint family, continued the management. On this admitted position the petitioners cannot be held to be trespassers in respect of the dharmasala, temple and shops; nor can it be held that the dharmasala, temple and shops belonged to the State, irrespective of the question whether the trust created was of a public or private nature. A trustee even of a public trust can be removed only by procedure known to law. He cannot be removed by an executive fiat. It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country; see Thakoor Chunder Parmanick vs Ramdhone Bhuttacharjee (1); Lala Beni Ram vs Kundan Lall (2) and Narayan Das Khettry vs Jatindranath (3). These decisions show that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quicquid plantatur solo, solo cedit. It is, therefore, impossible to hold (1) (2) (1899) L. R. 26 I.A. 58. (3) (1927) L.R 54 I.A. 218. 79 that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the State 's Legal Remembrancer. It is well recognised that a suit under section 92, Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of the trust. Learned Counsel for the respondents has drawn our attention to the statement of Ramji Das made ill 1925 and the order of the Revenue Minister dated December 13, 1954, and has contended that Ramji Das himself admitted that he was a more trustee. Be that so; but that does not give the State or its executive officers the right to take the law into their own hands and remove the trustee by an executive order. We must, therefore, repel the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order. As to the second argument, it is enough to say that it is unnecessary in this case to determine any disputed questions of fact or even to determine what precise right the petitioners obtained by the sanction granted to their firm in 1909. It is enough to say that they are bona fide in possession of the constructions in question and could not be removed except under authority of law. The respondents clearly violated their fundamental rights by depriving them of possession of the dharmasala by executive orders. Those orders must be quashed and the respondents must now be restrained from interfering with the 80 petitioners in the management of the dharmasala, temple and shops. A writ will now issue accordingly. Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government, the petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property. As pointed out by this Court in Wazir Chand vs The State of Himachal Pradesh (1), the State or its executive officers cannot in terfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In Ram Prasad Narayan Sahi vs The State of Bihar (2) this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extraordinary action are, to (1) ; (2) ; 81 quote what we said in Sahi 's case (supra), remarkable for their disturbing implications. For these reasons, we allow the application with costs and a writ will now issue as directed. Petition allowed.

One Ramjidas built a dharmasala, a temple and shops appurtenant thereto with the joint family funds on Government land with the permission of the Government. After his death the other members who were in management and possession of those properties were dispossessed by the State, its officers and the local Municipality which was put in possession. The petitioners applied to the Punjab High Court for the issue of appropriate writs under article 226 of the Constitution, but the petition was dismissed on the, preliminary, ground that the matter involved disputed questions of fact. An appeal against that order was also dismissed on the same ground. The petitioners then moved this court under article 32 of the Constitution. Their case was that they had been evicted without authority of law and in violation of the Constitution. It was urged on behalf of the State that the property being trust property built on Government land, the petitioners were mere trespassers liable to be ejected with the minimum amount of force and relying on the decision of this Court in Sohal Lal vs The Union of India, it was further urged that redress by way of writs was wholly inappropriate in disputes on questions of fact and title. Held, that on the admitted facts of the case the petitioners could not be trespassers in respect of the dharmasala, temple and shops, nor the State the owner of the property, irrespective of whether it was a trust, public or private. The maxim, that what is annexed to the soil goes with the soil, is not an absolute rule of law in this country, and if the State wanted to remove the constructions or resume the land, it should have taken appropriate legal action for the purpose. Thakoor Chunder Parmanick vs Ramdhone Bhuttacharjee, , Lala Beni Ram vs Kundan Lall, (1899) L.R. 26 I.A. 58, and Narayan Das Khettry vs jatindranath, (1927) L.R. 45 I.A. 218, referred to. Even if Ramjidas was no more than a trustee, that would not give the State or its officers the right to take the law into their 70 own hands and the argument that the petitioners were tres passers and could be removed by an executive order must be rejected not merely as specious but highly dangerous in its implication. It was not necessary in this case to determine disputed questions of fact, nor as regards the precise rights of the petitioners. It was enough that they were bona fide in possession of the property and could not be removed except by authority of law. The executive action taken in the present case must be deprecated as being destructive of the basic principles of the rule of law; it was a highly discriminatory and autocratic act which deprived a person of the possession of property without reference to any law or legal authority.

The appellant Panchayat owned 1200 Bighas of land in Village Kanonda Distt. Rohtak in Haryana. A Scheme of con solidation of Holdings under Section 20 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948 was confirmed on 15.1.1974, as a result whereof the Panchayat 's land was consolidated, repartitioned and allot ted to persons, allegedly having no right to hold the same with the result, the Panchayat was reduced as a landless person, and financially weak. The Panchayat, therefore, on 20.9.1977 moved an application under section 42 of the Act objecting to the utilization of the Land of the value of /2/ (Two annas) and the allotments made to other right holders. After hearing the parties, the Director of Consolidation of Holdings by his order dated 8.2.79 set aside the scheme and remanded the case to the consolidation officer with some directions. The Director took the view that even though the application had been made much beyond the period of limita tion of six months contemplated under Rule 18, yet in view of the fact that the Panchayat had no other land to culti vate due to which the Panchayat was unable to develop the agricultural Schemes, condoned the delay and allowed the application as aforesaid. Against the said orders the Re spondents moved the High Court by means of a Writ Petition urging inter alia that the Director had condoned the delay without there being any ground for the same and thus had acted illegally. The High Court held that the Director condoned the delay on extraneous considerations and accord ingly quashed the impugned 577 order of 8.2.79 passed by the Director. Hence the Panchayat has filed this appeal after obtaining Special Leave. Allowing the appeal, this Court, HELD: (Per K.N. Saikia & M. Fathima Beevi, JJ.) Section 42 of the Act envisages proceedings wherein order is passed, scheme prepared or confirmed or repartition made. These are the distinct proceedings for the purpose of exercising jurisdiction under this section. [585B] Applying Rule 18, the application has to be one under section 42 of the Act, and it has to be against an order and under the first proviso, a certified copy of the order is required to accompany the application and in computing the period of limitation of six months, the time spent in ob taining the certified copy is to be excluded. [585F]. Rule 18 has to be interpreted as it is found, and the words of the rule are simple, precise and unambiguous and no more is necessary than to understand these words in their natural and ordinary sense. Two different meanings cannot be given to the same word "order" namely, that, in section 42 it does not include scheme prepared or confirmed or reparti tion made, while in Rule 18, it would include them. [586B C] The Rule did not come into play when a petitioner chal lenged either the scheme of consolidation including its preparation or confirmation or the repartition made in pursuance thereof. The amendment made this position clear. [586E] Though section 42 envisaged orders, preparation or confirmation of scheme and repartition separately, Rule 18 provides for limitation only in respect of an application under that section in a proceeding where an order was passed. There is the maxim expressio unius est exclusio alterius expression of one thing implies the exclusion of another. When mention has been made only of "orders", the inference would be that preparation or confirmation of scheme and repartition are excluded. [588F G] In matters like consolidation of Holdings by a scheme and the preparation and confirmation of the scheme and repartition thereafter, the objections may arise at various stages for various reasons and it will 578 not be possible to prescribe any hard and fast rule as to the reasonable period after which an application could be made under section 42 of the Act. The Legislature itself did not do so. [589C D] In the instant case, it has not been shown that the Panchayat earlier moved an application under section 42 on the same subject matter. There is no material to hold that the instant order of the Director is an order of review of his earlier order. [590A] (Per K. Ramaswamy, J.) As regards the exercise of the power under sections 19 & 20, the statute does not envisage passing any orders. But when exercising the power, the officer is enjoined to pass orders and appeals are provided within the prescribed limi tation against those orders to the appellate forums. This also, is an indication of the fact that the limitation of six months is confined to the orders to be revised under section 42. [580C D] The prescription of limitation of six months under Rule 18 would be confined only to order passed by an officer under the Act, it would not apply to the revision filed against the scheme prepared on confirmed or repartition made in pursuance thereof. [580F] It is undoubted that when there is no limitation pre scribed for exercise of the revisional power under section 42 against the schemes prepared or confirmed or repartition made, it would be exercised within a reasonable time. [580G] What is reasonable time is always a question of fact depending upon the facts and circumstances of each case. [580G] When legislature chose not to fix a particular period of limitation, by judicial dicta it is not permissible to limit to a particular period. :While exercising power under Sec tion 42, the revisional authority may take into account the long lapse of time as a factor in the light of the facts and circumstances obtainable in an appropriate, case. No abso lute or precise period of limitation could be predicted or laid. [580H] Jagtar Singh vs Additional Director, Consolidation of Holdings, Jullundar, AIR 1984 Punjab & Haryana 216, ap proved. Haqiqat Singh vs Addl. Director, Consolidation of Hold ings, AIR 1981 Punjab & Haryana 204; Joginder Singh & Ors. vs The Director, 579 Consolidation of Holdings, and Harbha jan Singh vs Karam Singh & Anr., ; , referred to.

The State of Haryana came into existence On 1st November 1966. The Cabinet placed certain sums of money at the disposal of the ministers, one of whom was the appellant to be used at their discretion for purposes of public utility, for the benefit of the general public and for the uplift of backward communities. The money had to be disbursed before 31st March 1967 through Panchayat, Municipal or Government agencies. The appellant sanctioned certain payments for building two dharmashalas in two wards of a Municipality. Long after the sanction, her candidature for election to the Vidhan Sabha of the State was recognised by her party and she stood for election from a constituency which included these two wards. She was elected, and some time later, the money was made available to the wards though the recipients were writing that the money should be made available at once. The first respondent challenged the election alleging corrupt practices and later amended the petition giving better particulars. The pleas in the petition contradicted each other, the evidence tendered at the trial of the petition contradicted the pleas, and the witnesses were found to be thoroughly unreliable. In spite of this the petition was allowed on the ground that the circumstances showed that the were in fact paid to bargain for votes and to influence the voters in favour of the appellant. In appeal to this Court, HELD : The action of the appellant could not be construed against her. It was done in the ordinary course of her duties as Minister and there was no evidence that it was, directly or indirectly, part of a bargain with the voters. No hurry to make the money available to the recipients emanated from the appellant. It was only the persons who were to benefit by the discretionary grant that were anxious to lay hands on the money, as soon as possible, so that the grant might not be cancelled later by a change of attitude caused by the election going against the particular party. [117 H; 118 A C] Ghasi Ram vs Dal Singh & Ors. ; followed. Bhagwan Dutta Shastri vs Ram Ratanji Gupta, A.I.R. 1960 S.C. 200 and Kandaswami vs Adityan, , referred to.

By a lease dated 14th December 1948, the respondent plaintiff gave to the appellant defendant on lease two plots Nos. 12 and 13 situated at Sitaladevi Temple Road, Mahim for a period of 15 years commencing from 1st December 1948 at the yearly rent of Rs. 10,200/ payable in equal quarterly instalments of Rs. 2,550/ in advance. The lease deed provided that the appellant was at liberty to erect building and structures on the two plots of land. The appellant agreed to pay and discharge all taxes and outgoings imposed on the above two plots as also on the buildings to be erected by the defendant. On the expiration of the term of the lease, the appellant agreed to deliver back the possession of two plots to the respondent `free of all buildings, erections and structures and levelled and put in good order and condition to the satisfaction of the respondent '. Clause IV of the lease provided for determination and forfeiture of the lease in the event of the rents having been allowed to be in arrears for more than 30 days or upon breach of conditions of the lease. The forfeiture clause also provided that upon forfeiture the respondent would be entitled to re enter upon not only the two plots of land but also the structure standing thereon. The appellant constructed on plot No. 12 a three storied building consisting of about 72 flats, shops with carpet area of 13,000 square feet and the cost of the building with superstructures in 1949 was about Rs. 6,00,000/ . Since the appellant defaulted not only in payment of rent but also in payment of dues in respect of lands and buildings which he erected, the respondent filed a suit in 1951 for ejectment. The appellant filed an application for the fixation of standard rent and the standard rent was fixed at Rs. 435/ per month from September 1, 1950. A compromise was entered into between the parties in the suit on 5th March, 1954, by which they agreed on a rent of Rs. 435/ per month from September 1950 to February 1954. An appeal against the fixation of standard rent of Rs. 435/ per month was disposed of on 28th June, 1955 whereby standard rent was refixed at Rs. 620/ p.m. from 1st September 1950. The appellant again defaulted in payment of rent and taxes. The arrears of rent amounted to Rs. 11,472.30 and taxes to the extent of Rs. 1,12,053.60 for the period ending 30th September 1960. The respondent by a notice determined and forfeited the lease and called upon the appellant to deliver possession of the lands alongwith structures thereupon. The notice also specified that the notice was not only a notice of forfeiture, but also notice under section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. On 1st 1016 December 1961, as the appellant failed to pay the arrears of rent and the taxes, the respondent filed the suit for ejectment and prayed for a decree for ejectment against the appellant in respect of two plots of land Nos. 12 and 13 and also the buildings and structures standing thereon, and claimed arrears of rent of Rs. 11,472.50 and mesne profits at the rate of Rs.620/ p.m. The appellant in order to get the benefit of section 12(3)(b) of the Rent Control Act, 1947, applied for time for making deposit of arrears of rent. The appellant could not make the payment within the extended time allowed, but after the issues were framed and the suit was taken up for trial, he deposited the arrears of rent and cost in the Court after the Court made an endorsement "accept without prejudice". Subsequently, on 11th November, 1964 the Trial Court passed a decree for ejectment in respect of plots and the buildings in favour of the respondent. A decree was granted regarding arrears of rent and for mesno profits. Both the appellant and the respondent preferred appeals and the Bench of two Judges of the Court of Small Causes by a common judgment disposed of both the appeals on 4th April 1965. The Appellate Court held that it had no jurisdiction to give a decree for ejectment in respect of the two buildings constructed on plot No. 12 by the appellant. It held that clause IV of the lease which permitted forfeiture was in the nature of penalty and the appellant was entitled to be relieved from the liability to deliver possession of the buildings constructed by him upon forfeiture by the respondent. It also found that the appellant was entitled to be relieved from the penalty of forfeiture of the lease under section 114 and 114A of the Transfer of Property Act. It rejected the plea of the appellant that he was always ready and willing to pay arrears of rents and found that because of repeated defaults the appellant was not entitled for relief from ejectment under section 12(3)(b) of the Bombay Rent Act. The respondent filed a revision petition against the order of the appellate Court declining to direct possession of the two buildings and the appellant tenant filed an appeal against the order of appellate Court directing his ejectment from the two plots of lands Nos. 12 and 13. The High Court disposed of both the revision petition and the cross appeal by a common judgment whereby it allowed the revision petition of the respondent/landlord and dismissed the appeal of the appellant/tenant and decreed the suit of the respondent directing the appellant to deliver peaceful possession of the land demised to him and also buildings which have been constructed by the appellant on the demised lands. It also confirmed the decree regarding arrears of rents and mesne profits. Hence the appeal by certificate. Dismissing the appeal, the Court. ^ HELD: 1. Section 28 of the Bombay Rent Act, 1947 confers jurisdiction on the Court of Small Cause. Bombay to entertain try any suit for proceedings between a landlord and tenant relating to recovery of rents or possession of any premises to which any of the provisions of that part applied. The Jurisdiction thus conferred enables the Court to try any Suit between the landlord and the tenant relating to recovery of possession of the premises. [1022 A B] Importers and Manufacturers Ltd. vs Pheroze Framroze Taraporewala and Ors. ; Babulal Bhura Mal and Anr. vs Nandram Shivram and Ors., ; ; followed. 1017 Raizada Tapen Das and Anr. vs M/s Gorakhram Gokalchand ; ; Sushila Kashinath Dhonde and Ors. vs Harilal Govinji Bhogani and Ors., ; explained and distinguished. The conditions specified in section 12(3)(b) of the Bombay Rent Act, 1947 will have to be strictly observed by the tenant if he wants to avail himself of the benefits provided under the section. In the instant case, the persistent default of the appellant tenant on various occasions and his clear statement that he was not in a position to pay the arrears would exclude any relief under section 12(3) (b) of the Act. The respondent plaintiff would be entitled to a decree for possession of the plots under the provisions of the Bombay Rent Act and in effect the decree for possession of the land would mean that the land should be delivered to him without the structures. [1023 D G, 1025 D E] Ganpat Lodha vs Sachikant Vishnu Shivale. ; ; applied. 3. To contend that as the respondent plaintiff has sought two reliefs one under the Bombay Rent Act and another under the contract, the entire plaint must be rejected is wrong. In asking for the relief for possession of the land. the respondent plaintiff is entitled to incidental and consequential reliefs such as for effectively taking possession of the plot without the structure, that is he is entitled to ask for the demolition of the superstructure. The prayer in the plaint asking for possession of the land including the structures would not take the suit out of the competence of the Small Causes Court. [1025 E. F G] Ramachandra Raghunath Shirgaonkar vs Vishnu Balaji Hindalekar. ; Khimjee Thakorsee vs Pioneer Fibre Co. Ltd., AIR 1941 Bom. 337 and K Arumugham Naicker and Anr. vs Tiruvalluva Nainar Temple by its Trustee. AIR 1954 Mad. 985; approved.

The respondent, a company incorporated in the former State of Bhopal, presented a petition in August 1960 under article 226 of the Constitution in the High Court of Madhya Pradesh for a writ restraining the State of Madhya Pradesh from enforcing the Bhopal State Agricultural Income tax Act, 1953, claiming that the Act contravened the respondent 's right under article 14 of the Constitution. By the the territory of the State of Bhopal was 847 incorporated from November 1, 1956 into the newly formed State of Madhya Pradesh. The by section 119 continued the operation of the laws in force in the territories in which they were previously in force until the competent legislature or authority amended, altered or modified these laws. Shortly after the reorganisation. the Madhya Pradesh Adaptation of Laws Order, 1956 was issued so as to make certain laws applicable uniformly to the entire State and later the Legislature by the Madhya Pradesh Extension of Laws Act, 1958 made other alterations in the laws applicable to the State. But Bhopal Act 11 of 1953 remained unamended or unaltered: nor was its operation extended to the other areas or regions in the State with the result that Agricultural Income tax was levied within the territory of the former State of Bhopal and not in the rest of the territory of the State of Madhya Pradesh. The High Court held that the provisions of Bhopal Act 11 of 1953 contravened article 14 of the Constitution and observed that though the State had removed diversity in some of the laws of the component regions, no attempt was made to remove discrimination between the territory of the former Bhopal State and the rest of the territories of the State of Madhya Pradesh with respect to this law. Held: (i) Where application of unequal laws is reasonably justified for historical reasons, a geographical classification founded on those historical reasons would be upheld. The legislature has always the power to make special laws to attain particular objects and for that purpose has authority to select or classify persons, objects or transactions upon which the law is intended to operate. Differential treatment becomes unlawful only when it is arbitrary or not supported by a rational relation with the object of the statute. Bhaiyalal Shukla vs State of Madhya Pradesh, [1962] Supp. 2 S.C.R. 257, The State of Madhya Pradesh vs The Gwalior Sugar Co., , Maharaj Kumar Prithivi Rai vs State of Rajasthan, C.A. Nos. 327 328, dated 2 11 1960 and Anand Prasad Lakshminivas Ganeriwal vs State of Andhra Pradesh, A.I.R. 1953 S.C. 853. relied on. State of Rajasthan vs Rao Manohar Singhji, [1954] S.C.R. 996, explained. (ii) It would be impossible to lay down any definite time limit within which the State had to make necessary adjustments so as to effectuate the equality clause of the Constitution. It cannot be said that because a certain number of years have elapsed or that the State has made other laws uniform, the State has acted improperly in con tinuing an impost which operates upon a class of citizens more harshly than upon others. (iii) To make out a case of denial of the equal protection of laws under article 14, a plea of differential treatment is by itself not sufficient. An applicant pleading such denial must make out that not only he 848 had been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is Unjustifiably made.

The Settlement Officer under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 suo motu made an inquiry as to whether a particular village notified by the State Government was an estate or not within the contemplation of section 9(2) of the Act and held that it was not an "inam estate" within the meaning of section 2(7) of the Abolition Act but that the village became an estate by virtue of Madras Estates Land (3rd Amendment) Act, 1936. Ther appellants unsuccessfully appealed to the Estate Abolition Tribunal. The appellant then instituted a suit (O.S. 47 of 1953) against the State Government for a declaration that the village was not an "estate" under section 3(2)(d) of them Madras Estates Land Act, 1908 and consequently Madras Estate (Reduction of Rent) Act, 1947 and the Abolition Act were not applicable to it. The trial court decreed the suit. The State Preferred an appeal. During the pendency of the appeal the appellant filed a suit (O.S. No. 101 of 1954) against the respondents for recovery of certain amount as rent or damages in respect of lands cultivated by them in the village in dispute. The respondents contended that the village was an estate within the meaning of the Act and that it had been so held by the Settlement Officer. Ultimately both the parties filed a joint memo on 26th March, 1958 that they would abide by the decision of the High Court or the Supreme Court in the appeal or revision arising out of the suit (O.S. 47/53) on the question whether the village was or was not an "estate" under, section 3(2)(d) of the Madras Estates Land Act. The High Court (in A.S. No. 668 of 1954 which was an appeal arising out of O.S. 47 of 1953) confirmed the decree of the trial court that the village in dispute was not an 'estate '. The State did not appeal, with the result that the High Court 's decision became final and the decree dated 28th March, 1958 became, effective. Against the decree of 28th March, 1958 the appellants preferred an appeal (A.S. 239 of 1961) to the High Court. The appeal related only to the extent of the land in the possession of the respondents and the quantum of rent or damages. The appellants ' claim was that the entire land was under cultivation of the respondents and so the lower court was wrong in not decreeing the appellants ' claim for rent or damages in toto. The respondents raised a preliminary objection at the time of hearing of the appeal that the suit itself was incompetent as the Civil Court had no jurisdiction to decide whether the suit village was an estate or not and, therefore, any (decision given by the High Court would not bind the parties and the decree in O.S. 101 of 1954 would be without Jurisdiction rendering it null and void and that the Settlement Officer was the competent authority to decide the tenure of the village and his deci sion had become final in view of the introduction of section 9A by Act 20 of 1960. The High Court upheld the preliminary objection of the respondents and rejected the contentions of the appellants that since section 9A was inserted by an amendment which came into force on 23rd June, 1960, it could not affect the compromise decree of the court passed on March 28, 1958 or the decree of the High Court by which both the parties agreed to abide by the decision of the High Court or the Supreme Court in appeal or revision arising out of O.S. 47 of 1953. The High Court held that the Civil Court was not the forum for the suit as framed by the appellants and the questions raised in the suit L748SuP CI/74 656 including the claim for arrears of rent or damages, were outside the jurisdiction of the Civil Court, and so dismissed the appeal. Allowing the appeal, HELD:1 (a) There is no doubt that the question was within the competence of the Civil Court. Under the Abolition Act, as it stood at the material date, the inquiry of the Settlement Officer could legitimately be confined to the ascertainment of only two disputes of fact, viz., (i) Was the village an "inam village"? (ii) If so, was it an 'Inam Estate ' as defined in section 2(7) of the Abolition Act ? Once issue (ii) was determined, the inquiry would be complete and the limits of his exclusive jurisdiction circumscribed by section 9(1) reached; if he went beyond those limits to investigate and determine something which is unnecessary or merely incidental or remotely related to issue No. (ii), 'then such incidental or unnecessary determination could be questioned in a Civil Court. [668FG] (b) Any finding recorded by the Settlement Officer regarding the property in question being an 'inam village ' or not, ' is not final or conclusive it being a finding of a jurisdictional fact only, the Preexistence of which is a sine qua non to the exercise of his exclusive jurisdiction by the Settlement Officer. [668H] (c) The legislature must have visualised that under the cloak of an erroneous finding as to the existence or nonexistence of this prerequisite, the Settlement Officer may illegally clutch at jurisdiction not conferred on him or refuse to exercise jurisdiction vesting in him. Perhaps that is why the statute does not leave the final determination of this preliminary fact to the Settlement Officer/Tribunal and his erroneous finding on that fact is liable to be questioned in a Civil Court. Once it is held that determination of this fact is not a matter of the exclusive jurisdiction of the Settlement Officer, the appellants cannot be debarred on the basis of any doctrine of res judicata from getting the matter fully and finally adjudicated by a court of competent jurisdiction. [669B C; E] Addanki Tiruvenkata Tata Desika Charyulu vs State of Andhra Pradesh A.I.R. 1964 S.C. 807 followed. District Board, Tanjore vs Noor Mohammed, (1952) 2 MJ. 586 (S.C.) referred to. (2) It is well settled that ordinarily when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was taken unless the new statute shows a clear intention to vary such rights. A plain reading of the impugned Act would show that there was nothing of this kind which expressly or by necessary intendment affects pending actions. [67OC D] (b) There is no non obstante clause in the amending Acts 17 and 18 of 1957 with reference to pending or closed civil actions. These amending Acts ' were published in the government gazette of December 23, 1957 and will therefore be deemed to have come into force from that date only. They could therefore be construed as having prospective operation only. [67OG H] (c) In the Amending Act 20 of 1960 also no back date for its commencement has been mentioned. It will, therefore, be deemed to have commenced on June 23, 1960 which is the date on which it was published in the Government gazette. [674E] Section 9A takes in its retrospective sweep only those decisions of the Settlement Officer or the Tribunal which at the commencement of 'the Amending Act 20 of 1960 were subsisting and had not been totally vacated or rendered non est by a decree of a competent court. [675 F] In the instant case the decision of the Settlement Officer dated September 2, 1950 was not such a decision. It had ceased to exist as a ' result of the inter linked decree in O.S. 47 of 1953 and O. section 101 of 1954 passed before the enactment of the Amending Act. The Amending Act of 1960, therefore, does not in any way affect the finality or the binding effect of those decrees. [675G] 657 (d) Order 23 rule 3 C.P.C. not only permits a partial compromise and adjustment of a suit by a lawful agreement, but further gives a mandate to the court to record it and pass a decree in terms of such compromise or adjustment in so far as it relates to the suit. If the compromise agreement was lawful the decree to the extent it was a consent decree was not appealable because of the express bar in section 96(3) of the Code. [672E] Raja Sri Sailendra Narayan Bhanja Deo vs State of Orissa ; , Shri Prithvi Cotton Mills Ltd. vs Broach Borough Municipality and Reid vs Reid at 408, followed. (e) In any suit the parties, in order to avoid unnecessary expenses and botheration, could legitimately make an agreement to abide by a determination on the same point in issue in another pending action in an advanced stage There was nothing unlawful and improper in such an arrangement particularly when the interests,of the respondents were sufficiently safeguarded by the State. By no stretch of reasoning it could be said that the agreement was collusive or was an attempt, to contract out of the statute. In the instant case as soon as the parties made the agreement to abide by the determination in the appeal (A. section 668) and induced the court to pass a decree in terms of that agreement the principle of estoppel underlying section 96(3) C.P.C. became operative and the decree to the extent it was in terms of that agreement became final and binding between the parties. It was as effective in creating an estoppel between the Parties as a judgment on contest. [672F C & 673C] In the instant case that part of the decree in suit No. 101 of 1954 and the appeal from that decree could not be said to be a continuation of that part of the claim which had been settled by agreement. The combined effect of the two integrated decrees was to completely vacate and render non est decision dated September 2, 1950 of the Settlement Officer. [673F] Raja Sri Sailendra Narayan Bhanja Deo vs State of Orissa ; applied. Per Krishna Iyer, J. concurring Courts have to be anchored to well known canons of statu tory construction and if they are out of tune With the law maker 's meaning and purpose the legitimate means of setting things right is to enact a new Interpretation Act. [678B] The Indian Constitution, adopting the fighting faith of equal I protection of the laws to all citizens, necessarily contemplates a new jurisprudence where vested rights may be, and often times are, extensively interfered. with for achieving the founding fathers ' social goals. Legislative exercises directed towards distributive justice as in the present case, cannot be considered in the light of dated value system, though sanctified by bygone decisions of Courts. [677H] In the present case the Act in question is clear about its intent and its application gives little difficulty.

The petitioner after a prolonged litigation and having ful filled all the conditions of the Delhi Rent Control Act, obtained decrees of ejectment against the tenants. 126 In the meantime the Slum Areas (Improvement and Clearance) Act, 956, came into force and the petitioner in accordance with section s.9 of the said Slum Areas Act applied to the competent authority for permission to execute the decree, which permission was refused inter alia on the grounds of hardship to the tenants and the human aspect of the case. The appeals therefrom were also rejected. The petitioner moved the Supreme Court for issue of a writ of certioraris to quash the orders on the ground that (1) section 19 of the Act was invalid and unconstitutional as violative of the petitioner 's rights guaranteed by articles 14 and 19(1)(f) of the Constitution, in as much as section 19 of the Slum Areas Act was a super imposition on the rights of the petitioner who had satisfied the requirements of the Rent Control Act before obtaining his decree, which amounted to unreasonable restrictions on the right to hold property guaranteed by the Constitution, and (2) that section 19(3) of the Slum Areas Act vested an unguided, unfettered, and uncontrolled power in an executive officer to withhold permission to execute a decree which the petitioner had obtained after satisfying the reasonable requirements of the law as enacted in the Rent Control Act, (3) The power conferred on the competent authority by section 19(3) of the Slum Areas Act was an excessive delegation of legislative power and therefore unconstitu tional. Held, that section 19 of the Slum Areas (Improvement and Clea rance) Act, 1956, was not obnoxious to the equal protection of laws guaranteed by article 14 of the Constitution. There was enough guidance to the competent authority in the use of his discretion under section 19(1) of the Act. The restrictions imposed by section 19 of the Act could not be said to be unreasonable. The guidance could be derived from the enactment and that it bears a reasonable and rational relationship to the object to be attained by the Act and in fact would fulfil the purpose which the law seeks to achieve, viz., the orderly elimination of slums, with interim protection for the slum dwellers until they were moved into better dwellings. The order of the competent authority in the present case was not open to challenge as it was in line with the policy and purpose of the Act. So long as the Legislature indicated in the operative provi sions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation was skeletal or that every detail of the application of law to a particular case, was not laid down in the enactment itself or the fact that a discretion was left to those entrusted with administering the law, afforded no basis either for the contention that there had been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested was uncanalised and unguided so as to amount to a carte blanche to discriminate. If the power or discretion has been conferred 127 in a manner which was legal and constitutional the fact that the Parliament could possibly have made more detailed provi sion, could not be a ground for invalidating the law. The freedom to 'hold property ' was not absolute but was subject, under article 19(5), to "reasonable restrictions" being A placed upon it "in the interests of the general public". The criteria for determining the degree of restriction on the right to hold property which would be considered reasonable, were by no means fixed or static, but must obviously vary from age to age and should be related to the adjustments necessary to solve the problems which communities faced from time to time. If law failed to take account of unusual situations of pressing urgency arising in the country and of the social urges generated by the patterns of thought, evolution and of social consciousness, it would have to be written down as having failed in the very purpose of its existence. Where the legislature enacted laws, which in its wisdom, was considered necessary for the solution of human problems, the tests of "reasonableness", had to be viewed in the context of the issues which faced the legislature. In the construction of such laws and particularly in judging of their validity the courts had to approach it from the point of view of furthering the social interest which it was the purpose of the legislation to promote, for the courts were not, in these matters, functioning as it were in vacuo, but as parts of a society which was trying, by enacted law, to solve its problems and achieve social concord and peaceful adjustment and thus furthering the moral and material progress of the community as a whole. That the provisions of the special enactment, the Slums Areas (Improvement and Clearance) Act, 1956, will in respect of the buildings in areas declared slum areas operate in addition to the Delhi & Ajmer Rent Control Act, 1952. Ramakyishna Dalmia vs justice Tendolkar; , , Harishankar Bagla vs State of Madhya Pyadesh, , M/s. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh, ; , State of West Bengal vs Anwar Ali Sarkar; , , Kathi Ratting Rawat vs State of Saurashtra; , , Kedar Nath Bajoria vs State of West Bengal, ; and Pannalal Binjraj vs Union of India, ; , discussed.

By a notification of the Delimitation Commission dated July 24, 1964 issued in terms of section 10(1) of the , Ujjain City, which had been a general constituency, was notified as reserved for the Scheduled Castes. The appellant who was a resident of Ujjain and a citizen of India, Mad a petition under article 226 praying for a writ of certiorari for quashing the notification on the ground that he had a right to be candidate for parliament from the Ujjain City constituency which had been taken away. The petition was rejected by the High Court on the short ground that the notification could not be questioned in any court because under article 329(a) of the Constitution the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, could not be called in question in any court. In appeal to this Court it was contended on behalf of the appellant that the impugned notification, which was an order under section 9 and published in accordance with the provisions of section 10(1) of the Act, was not a law within the meaning of section 329; that in any event under section 10(2) such an order was to have the force of law but was not itself a law; and that the notification was not made under article 327 but article 82 of the Constitution. HELD : dismissing the appeal, The impugned notification was a law relating to the delimitation of constituencies or the allotment of seats to such constituencies made under article 327 of the Constitution. An examination of sections 8 and 9 of the Act showed that the matters therein dealt with were not to be subject to the scrutiny of any court of law. Section 10(2) clearly demonstrates the intention of the legislature that the orders under sections 8 and 9 published under section 10(1) were to be treated as law which was not to be questioned in any court. There was very good reason behind such a provision. If the orders made under sections 8 and 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. [410 B C, G, H] Although an order under section 8 or section 9 published under section 10(1) is not part of an Act of Parliament, its effect is to be the same. Section 10(4) puts such an order in the same position as a law made by the Parliament itself which could only be made by it under article 327. [415 E] 401 Case law referred to. Article 82 merely envisages that upon the completion of each census the allocation of seats in the House of the People and the division of each State into territorial constituencies may have to, be readjusted. It is article 327 which enjoins upon Parliament to make provision by law from time to time with respect to all matters relating to or in connection with elections to either House of Parliament, delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. [406 C]

Appeal No. 461 of 1957. Appeal by special leave from the judgment and decree dated July 5, 1954. of the Punjab High Court in L. P. A. No. 29 of 1953. N. section Bindra and Sardar Singh, for the appellant. P. D. Ahuja and H. P. Wanchoo, for respondent No. 1. 471 1961. March 21. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave from the judgment of the Punjab High Court and arises out of a suit for possession of land brought by Munshi Ram, respondent. The following pedigreetable will be useful in understanding the claim put forward by the respondent: Heman Karori Laghi Maghi Jai Dayal (issueless) Gobind Ata Nanak Chand Santu Munshi Ram (adopted son) plaintiff Hans Raj Salig Kam ( Defdt.) MunshiRam (adopted by Ata) The claim of Munshi Ram was with respect to the property left by Nanak Chand who is his natural grandfather and also Santu. There is no dispute now about the property of Santu and we are concerned in this appeal only with the property of Nanak Chand. Nanak Chand died in 1939. Munshi Ram 's natural father Hans Raj had predeceased Nanak Dhand. Munshi Ram himself was adopted by Ata in 1918 before the death of his natural father Hans Raj which took place in 1920. It will be clear from these dates therefore that Hans Raj never succeeded to the property of his father Nanak Chand and Munshi Ram had been adopted by Ata even before Hans Raj 's death. The case of Munshi Ram was that he was entitled to one half share of the property left by Nanak Chand as his their, according to Zamindara custom. The parties, it may be Mentioned, are Brahmins and Munshi Ram claimed joint possession of the half share of the property left by Nanak Chand on his 472 death. The suit was resisted by Salig Ram (defendant appellant) who is the other son of Nanak Chand. His case was that Munshi Ram was not entitled either according to personal law or the riwaj i am of Amritsar district to any share in the property left by Nanak Chand. The trial court held that Munshi Ram was entitled to succeed to the property left. by, Nanak Chand along with Salig Ram and decreed the suit accordingly Salig Ram went in appeal to the District Judge but failed. He then went in second appeal to the High Court but the second appeal was also dismissed The High Court having refused to grant a certificate the appellant applied to this Court for special leave which was granted; and that is how the matter has come up before us. In questions regarding succession and certain other matters, the law in the Punjab is contained in section 5 of the , No. IV of 1872. Clause (b) of that section provides that the rule of decision in such matters shall be the Hindu law where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act or has been modified by any such custom as is referred to in cl. (a) thereof. Clause (a) provides that any custom applicable to the parties concerned, which is not contrary to Justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority shall be applied in such matters. The position therefore that emerges is, where the parties are Hindus, the Hindu law would apply in the first instance and whosoever asserts a custom at variance with the Hindu law shall have to prove it, though the quantum of proof required in support of the custom which is general and well recognised may be small while in other cases of what are called special customs the quantum may be larger. As was pointed out by Robertson, J., as far back as 1906 in Daya Ram vs Sohel Singh and others (1), "in all cases under section 5 of the , it lies upon the person asserting that he is ruled (1) 1906 P. R. No. 110. 473 in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is. There is no presumption created by the clause in favour of custom; on the contrary it is only when the custom is established that it is to be the rule of decision. " These observations were approved by the Privy Council in Abdul Hussein Khan vs Bibi Sona Dero and another (1). The same view has been taken by this Court in Ujagar Singh vs Mst. Jeo (2). We have therefore in the first instance to apply Hindu law to the parties to this suit, and it is only when a custom different from Hindu law is proved that rights of the parties would be governed by that custom. Munshi Ram 's case was that he was adopted by Ata according to custom (i.e., in accordance with the mode prevalent in the community for purposes of adoption) during the lifetime of Hans Raj. Thus Munshi Ram having been adopted by Ata would have no right left in the family of his natural father Hans Raj, unless the adoption was in the dvyamushyayana form. It was however never the case of Munshi Ram that the adoption was in dvyamushyayana form and so far as Hindu law is concerned, if it applies to this case Munfshi Ram would not be entitled after the adoption to succeed to the property left by Nanak Chand. But Munshi Ram 's case was that according to Zamindara custom he was entitled to succeed to half of the properties left by Nanak Chand. The question therefore arises: what the Zamindara custom is in the present case. In the plaint the custom was not actually pleaded, though strictly speaking this should have been done. However, the custom that is relied upon is to be found in para. 48 of the Digest of Customary Law in the Punjab by Rattigan at p. 572, 13th Edition. This paragraph appears in section V dealing with "Effect of Adoption on Succession" and is in the following terms: "An heir appointed in the manner above described ordinarily does not thereby lose his right to succeed (1) (1917) L. R. 45 I. A. 10, 13. (2) [1959] SUPP. 2 S.C. R. 781 60 474 to property in his natural family, as against collaterals, but does not succeed in the presence of his natural brothers. " It is not disputed before ,is that para. 48 applies in the case of adoption also; but what is contended on behalf of the appellant is that para. 48 only mentions a custom prevalent throughout the Punjab while the riwaj i am of Amritsar district from which area the parties come also records a custom confined to that area which really governs the parties. It appears that in 1865 the riwaj i am of Amritsar district stated that "an adopted son will not be a co sharer amongst his brothers, in the property left by his natural father", i.e., a son given away in adoption will not inherit in the natural father 's family. We may in this connection refer to Jai Kaur and others vs Sher Singh and others (1), where this Court held that "there is therefore an initial presumption of correctness as regards the entries in the Riwaj i am and when the custom as recorded in the Riwaj i am is in conflict with the general custom as recorded in Rattigan 's Digest or ascertained otherwise, the entries in the Riwaj i am should ordinarily prevail except that as was pointed out by the Judicial Committee of the, Privy Council in a recent decision in Mt. Subhani vs Nawab (2), that where, a,% in the present case, the Riwaj i am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weak, and only a few instances would suffice to rebut it. " As females are not concerned in this case, the entries in the riwaj i am of Amritsar district in 1865, if they conflict with para. 48 of Rattigan 's Digest,, should prevail. On that view Munshi Ram would have no right to succeed in the family of his natural father after he was adopted by Ata. The High Court, however, pointed out that there were decisions of courts which did not accept the riwaj i am of Amritsar district of 1865 as laying down the correct custom and therefore para. 48 of the Digest by Rattigan would still prevail. (1) A.I. R. (2) A.I.R. 1941 P.C. 21. 475 In this connection the High Court relied on Majja Singh and others vs Rain Singh (1). That was however a case of Jats and not of Brahmins and the person who was adopted in that case was an only son. That case would not therefore necessarily override the custom so far as it applies to Brahmins. In any case the position is made clear by the Manual of Customary Law prepared in 1911 12 by Mr. Cralk. The custom recorded in that compilation is that with the exception of Brahmins and Khatris, an adopted son does not retain his right to inherit from his natural father, even if the latter dies without leaving any other son. The High Court however pointed out that the Brahmin,,; and khatris did not accept this custom; but it failed to notice a further paragraph in answer to that very question where it was pointed out that among Brahmins and Khatris the same custom prevailed except that where there was no other son, the son who was adopted in another family would succeed to the property of his natural father. In 1940 the customary law of Amritsar district was again compiled and the custom recorded is that an adopted son loses his right to inherit from his natural father but if the latter dies without other sons the adopted son cannot inherit as a son but may inherit collaterally as a successor of his adoptive father. The position as it emerges from a comparison of the entries in the riwaj i am of 1865, 1911 12 and 1940 is somewhat confused and the High Court therefore thought that the custom recorded in para. 48 should be adhered to as Brahmins and Khatris did not accept the extreme position that as on given away in adoption was excluded altogether from succeeding in his natural father 's family as recorded in 1911,12. This conclusion seems to be fortified by the statements of Brahmins and Khatris in 1911 12 that a son given away in adoption succeeded in the family of his natural father if he had no brothers though the High Court did not notice this part of the answer in the riwaj i am of 1911 12. The conclusion therefore at which we arrive is that amongst Brahmins and (1) 1879 P.R. No. 43 476 Khatris of Amritsar district, a son given away in adoption can succeed to the property of his natural father only if there is no other son of the natural father; if there is another son he cannot succeed. Now let us see how this proposition works out in the present case. In this case Munshi Ram was claiming to succeed not to the property of Hans Raj, his natural father, but, to the property of Nanak Chand his natural grandfather. If the case was for succession to the property of the natural father, namely, Hans Raj, the custom might have favoured Munshi Ram, for Hans Raj had no other son and Munshi Ram would thus have succeeded to the property of Hans Raj. But Hans Raj, having died in the lifetime of his father (Nanak Chand), never succeeded to the property of his father. The High Court, however, thought that on the principle of representation Munshi Ram stepped into the shoes of Hans Raj and therefore was entitled to succeed to the estate left by Nanak Chand as his father would have succeeded if he had been alive at the time of the death of Nanak Chand. But if Munshi Ram is to succeed by the application of the principle of representation it would follow that Munshi Ram would really be deemed to be Hans Raj at the time of the death of Nanak Chand. In that case the position would be that Nanak Chand would have died leaving two sons, namely, Salig Ram and Munshi Ram in the guise of Hans Raj. But Munshi Ram having been adopted away and there being another son of Nanak Chand, even the custom recorded in para. 48 would exclude Munshi Ram because then there would be a brother of Munshi Ram alive in the family of Nanak Chand and this brother would succeed in exclusion of Munshi tam who would be representing his father. The argument on behalf of Munshi Ram is that though for the purpose of representation Munshi Ram would be treated as if he stood in the shoes of his father, the representation could not go further and it could 'not be held that there were two sons of Nanak Chand living it the time of his death, one of whom in the guise of Munshi Ram was adopted away. We cannot accept this 477 argument; and if Munshi Ram is to succeed on the principle of representation that principle must be fully worked out and he must for all intents and purposes be deemed to be Hans Raj. As the person who is deemed to be Hans Raj was adopted away and has a brother in the shape of Salig Ram he would not succeed even under the custom recorded in para. 48 of Rattigan 's Digest. The position therefore is that neither under Hindu law nor under the custom recorded in para. 48 can Munshi Ram succeed to the property of Nanak Chand. We therefore allow the appeal and set aside the decree of the courts below and dismiss the suit of the plaintiff respondent so far as the property of Nanak Chand is concerned. In the circumstances we also order the parties to bear their own costs throughout as the High Court did. Appeal allowed.

M, a Hindu belonging to the Brahmin community in the Amritsar District of Punjab, instituted a suit for the possession of a half share in the property left by his natural paternal grandfather. His father had predeceased him, but another son of his grandfather was alive. He had been adopted away in a different family but he claimed that according to the custom of his community in the district he was entitled to get his share in the estate of his natural grandfather. The based his claim on the principle of representation that he, stepped into the shoes of his natural father. Held, that under section 5 of the , the law applicable to Hindus in Punjab in respect of questions regarding succession and other matters referred to in that section, is Hindu law in the first instance, but where a custom different from Hindu law is proved then the rights of the parties would be governed by that custom; and whosoever asserts a custom at variance with Hindu law has to prove it, though the quantum of proof required in support of the custom which is general and well recognised may be small while in other cases of what are called special customs the quantum may be larger. Held, further, that in the Amritsar district of Punjab amongst Brahmins and Khatri s, a son given away in adoption can succeed to the property of his natural father if there is no other son of the natural father, but if there is another son he cannot succeed. Held, also, that in the present case neither under Hindu law nor under the customary law of Punjab could M succeed to the property of his natural grandfather.

The respondent while he was posted as a Squadron Leader at Delhi was on June 27, 1968 allotted by the Directorate of Estate a residential fiat in the Curzon Road Hostel on a monthly rent of Rs. 161, under sub r.(1) of SR 317 .B 11. Although he was transferred from Delhi to Chandigarh on June 11, 1970, he did not give any intimation of his transfer to the Directorate of Estates and therefore the said allotment stood automatically cancelled under sub r. (2) thereof after the concessional period of two months from the date of his transfer i.e. w.e.f. August 11, 1970. The respondent contin ued in unauthorised occupation of the said fiat for a period of nearly five years and in the meanwhile he was being charged the normal rent for that period. On February 28, 1975 the Estate Officer having come to know of the transfer of the respondent from Delhi, the Directorate addressed a letter dated March 18, 1975 cancelling the allotment w.e.f. August 11, 1970. On the next day i.e. the 19th, the Direc torate sent another letter asking the respondent to vacate the fiat, which he did on March 25, 1975. The Estate Officer raised a demand for recovery of Rs.38,811. 17 p. under SR 3 17 B 22 and served the respondent with a notice under s.7(3) of the . The 95 respondent disputed his liability to pay damages for the period of his unauthorised occupation. Thereupon, the Estate Officer initiated proceedings under s.7 of the Act to recov er the amount of Rs.38,811. 17p. Subsequentiy, the Central Government on a representation being made by the respondent reduced the amount to Rs.20,482.78p. On compassionate grounds and deducted the same on October 30, 1976 from out of the commuted pension payable to him. The respondent filed a petition under Art.226 of the Constitution before the High Court. The writ petition was allowed by a learned Single Judge holding that although the allotment of the flat stood cancelled in terms of sub r.(3) of SR 317 B 11 w.e.f. August 11, 1970 i.e. after the conces sional period of two months from the date of his transfer, the government was estopped from claiming the amount of Rs.20,482.78p. as damages equivalent to the market rent under SR 317 B 22 for the period from August 11, 1970 to March 25, 1975 on the ground that the government not only knowingly allowed the respondent to continue in occupation till March 25, 1975 but also charged him the normal rent of Rs. 161 p.m. presumably under its power of relaxation under SR 317 B 25. Further, he held that the government having failed to serve the respondent with a notice that he would be liable to pay market rent for the period of his unautho rised occupation, the doctrine of promissory estoppel pre cluded the government from claiming damages equivalent to the market rent under SR 317 B 22 for the period in ques tion. On appeal, a Division Bench upheld the decision of the learned Single Judge mainly on the terms of SR 317 B 23 which conferred the power of relaxation on the government. Hence the appeal by Special Leave. Allowing the appeal, in part, the Court, HELD: 1.1 The Government could not unilaterally deduct the amount of Rs.20,482.78p. from the commuted pension payable to the respondent, contrary to s.11 of the Pension Act, 1871. [106B C] 1.2 According to its plain terms, section 11 of the protects from attachment seizure or sequestration pension or money due or to become due on account of any such pension. The words "money due or to become due on account of pension" by necessary implication mean money that has not yet been paid on account of pension or has not been received by the pensioner and therefore wide enough to include commuted pension. [103A B] 96 Union of India vs Jyoti Chit Fund & Finance & Ors., ; , followed. Crowe vs Price, 15; Municipal Council, Salem vs B. Gururaja Rao, ILR ; C. Gopala chariar vs Deep Chand Sowcar, AIR 1941 Mad. 207; and Hasso mal Sangumal vs Diaromal Laloomal, AIR 1942 Sind 19, re ferred to. 2.1 The construction placed by the High Court on the two provisions contained in SR 317 B 22 and SR 3 17 B 25 is apparently erroneous. It is plain upon the terms of SR 3 17 B 22 that the liability to pay damages equal to the market rent beyond the concessional period is an absolute liability and not a contingent one. The Court was clearly in error in subjecting the liability of a government officer to pay market rent for period of unauthorised occupation to the fulfilment of the condition that the Director of Estate should serve him with a notice that in the event of his continuing in unauthorised occupation he would be liable to pay market rent. [101A C] 2.2 Non recovery of the rent at the market rent as permissible under SR 317 B 22 due to inaction of the govern ment and allowing the allottee to continue in authorised occupation for a period of nearly five years, as in this case, does not lead to the presumption that the government had relaxed the condition in his favour under SR 317 B 25. [101D] 2.3 For a valid exercise of power of relaxation, the condition pre requisite under SR 3 17 B 25 is that the government may relax all or any of the provisions of the Rules in the case of an officer or residence or class of officers or types of residences, for reasons to be recorded in writing. There was no question of any presumption arising for the relaxation which had to be by a specific order by the government for reasons to be recorded in writing. [101D E] 3. There was no question of any promissory estoppel operating against the government in a matter of this kind. Before an estoppel can arise, there must be first a repre sentation of an existing fact distinct from a mere promise made by one party to the other; secondly that the other party believing it must have been induced to act on the faith of it; and thirdly, that he must have so acted to his detriment. In this case, there was no representation or conduct amounting to representation on the part of the government intended to induce the respondent to believe that he was permitted to occupy the fiat in question on payment of normal rent or that he was induced to change his position on the faith of it. [101E;102A C] 97

The sixth respondent granted various Pattas of his lands to his wife, to the appellant and others in November, 1944. After the coming into force of the Andhra Pradesh (Andhra Area) Estates Communal, Forest and Private Lands (Prohibition of Alienation) Act, 1947, section 4(1) of which declared alienation of Communal or Forest Lands after October, 1939, to be void, a petition was filed in the District Court by two ryots for a declaration that the alienations in the present case were void and did not confer any rights on the alienees. The District Judge allowed the petition holding that the lands in question were forest lands and the alienations were void. Revision petitions filed before a Single Judge of the High Court were dismissed but in a Letters Patent Appeal it was held that the petitioners as ryots had no right to maintain the petition, and a reasonable opportunity had to be given to the State to get itself transposed as the petitioner. The State Government was then transposed as the petitioner but thereafter the District Judge held that the petition was not maintainable by reason of the repeal of the Act of 1947 upon the passing of a subsequent Act namely the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. However, a revision petition against this order was allowed by the High Court which remitted the matter to the District Judge. By a judgement in November, 1960 the District Judge allowed the were forest lands and there transfers were void. Further revision petitions filed by the appellant and others were dismissed by the High Court. In appeal to this Court it was contended inter alia on behalf of the appellant that (1) the Act of 1947 was a temporary Act and all proceedings thereunder came to an end with the implied repeal of the Act by Act XXVI of 1948; (2) a notification by the State Government describing the land as forest land was an essential pre requisite to the application of the Act; and (3) the Act applied only to lands which were admittedly forest lands and the operation thereof could not be extended to lands in respect of which there was a dispute as to the nature thereof. It was argued that any such dispute could only be decided by the Settlement Officer and not by the District Judge. HELD: Dismissing the appeal, (1) The purpose of the Act of 1947 was to prohibit the alienation of communal, forest and private lands in estates in the Province of Madras and the preamble to the Act shows that it was enacted to prevent indiscriminate alienation of such lands pending the enactment of legislation for acquiring the interest of landholders in such estates and introducing ryotwari settlement therein. No fixed duration of the Act was specified 330 and it was impossible to hold that merely because of the contents of the preamble, the Act became a temporary Act or that it stood repealed by the enactment of the later Act of 1948 unless there were express words to that effect or unless there was a necessary implication. It is not reason able to hold that the alienation of large blocks of land which were rendered void under the Act of 1947 became good by reason of the passing of the later Act. [332 B] (2) The definition of "forest lands" in section 2(b) of the Act is an inclusive one and shows that 'forest land ' would include not only waste land containing trees, shrubs and pasture lands but also any other class of lands declared by Government to be forest land. This does not mean that before a piece of land could be said to be forest land there would have to be a notification by the Government and that otherwise the application of the Act would be excluded. [334 C] (3) Section 20(1) of the Act of 1948 as originally enacted was substituted for another by section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) (Amendment) Act, 1956, which was to. be deemed to have come into force on April 19, 1949 being the date on which the Act of 1948 originally came into force. The section as it now stands did not confer any jurisdiction on the Settlement Officer to determine any question as to whether any land was forest within the meaning of the Act and consequently the adjudication by the District Judge under sub. section (4) of

The Ziarat Shareef of Hazrat Baba Ibrahim, a holy place of worship, in the Rakhbahu area of Jammu City was granted certain land to the Ziarat by the State Government vide two orders dated September 22, 1955 and November 29, 1958. The Ziarat was being managed by the 1st appellant and his brothers, since the death of their father in 1963. The Committee of Muslim Wakf, incorporated under the Jammu and Kashmir Muslim Wakf Act, which came into force in 1959, file a suit for restraining them from alienating, raising construction or recovering the rent from the Wakf land in dispute vested in the Ziarat, on the allegation that the appellants defendants were treating the lands granted to the Ziarat, as their personal property and mismanaging and also alienating the same. Resisting the suit, the appellants, defendants contended, inter alia, that notwithstanding the use of the word "Ziarat" in the two Government orders the transfer of the land in dispute was in their father 's favour in his personal capacity, in lieu of his possessory right over about 400/500 kanals of land which was taken over by the Government, and not in the form of any dedication, and as such the land was not the property of the Ziarat but their father 's absolute property, and had devolved upon them by succession and, therefore, they had the right to deal with the property in any manner they liked. The trial court dismissed the suit, holding that the two grants were in fact made in favour of defendants ' father and not the Ziarat. 254 The first appellate court upheld the trial court 's findings. However, in second appeal, the High Court held that from the recitals of the two orders of the Government of 1955 and 1958 it was clear that the two grants were in favour of the Ziarat. Hence, the appellants defendants filed the appeal, by special leave before this Court contending that the High Court had erred in upsetting the findings of the courts below, based on appreciation of the evidence that, as a fact, the appellants defendants were the owners of the property, the subject matter of the Government grants. Dismissing the appeal, the Court, HELD: 1.1 The two orders of the Government dated September 22, 1955 and November 29, 1958 are absolutely clear and unambiguous and can admit one and only one interpretation that the Government intended to grant the land to the Ziarat alone and not to the appellants defendants in their personal capacity. In fact the names of the appellants defendants or their ancestors are not even mentioned in the two orders. The order of 1955 specifically stated that the lands in Rakhbahu surrounding the Ziarat Shareef of Baba Ibrahim Shah be granted to the said Ziarat permanently. The later order of 1958 also says the same thing. It is nowhere mentioned in any of those orders that the land was given not to the Ziarat but to the father of the appellants defendants, who was Majawar of the Ziarat, either in his personal capacity or in lieu of compensation for his personal lands acquired by the Government. [259A, B C] 1.2 A manager or a trustee in possession of a religious shrine cannot be allowed to assert a hostile title unless he formally surrenders possession to the lawful authority. [260B] In the instant case, there was no justification for the appellants defendants to cast their covetous eyes on the property of the Ziarat, taking advantage of their possession over the same, which was as managers or trustees and assert a hostile title to it. Even if they were in possession of the lands, it would have to be referable to a lawful title and cannot be treated to be adverse to the Ziarat. In other words, the possession would be for. the benefit of the Ziarat. [259H, 260A, E] 1.3 In the face of clear and unambiguous terms of the Government orders, it was not permissible for the appellants defendants to adduce evidence to show that the grant was made to them and not to the 255 Ziarat. The question was of interpretation of two Government orders, which was essentially a question of law. [260G] In the circumstances, the High Court was not in error in upsetting the findings of the courts below. [260F]

Harnam Singh died leaving behind two daughters. They also died without leaving any issue surviving them. The Revenue authorities ordered that the entire estate of Harnam Singh be entered in the revenue records in the names of the defendants. The plaintiffs filed a suit for possession of the estate of Harnam Singh. Their contention was that notwithstanding the adoption of Ghuda Singh, their predecessor, by his maternal uncle, they as descendants of Ghuda Singh were not excluded from inheritance to the estate of a member in the natural family of Ghuda Singh. It was also contended that the family of the plaintiffs and Harnam Singh was governed by Zamindara Riwaj i am by virtue of which a son adopted in another family and his decendants did not lose their right to inherit in the natural family because by the adoption according to the custom of the community, the adopted son did not completely sever his connection with his natural family. The contention of defendants appellants was that in the District of Ferozeporc, every adoption in a Hindu family was formal and according to the Riwaj i am of the District, an adopted son was excluded from the right to inherit in his natural family. Consequently, Ghuda Singh, who was adopted by Bhan Singh, could not inherit the estate because his adoption operated as complete severance from the natural family. The suit was dismissed by the Subordinate judge and his order was confirmed by the District judge. However, the High Court set aside the order of the District judge and held that the record disclosed no evidence that the adoption of Ghuda Singh was formal and hence it must be presumed that the adoption was a customary appointment of an heir and not a formal adoption under the Hindu Law. It was also held that there was overwhelming authority in favour of the proposition that by reason of a customary adoption, the adopted 20 son and his descendants were not excluded from the right to inherit to collaterals in the natural family. The plaintiffs as grandsons in the male line of Ghuda Singh were entitled to inherit the estate. The appellants came to this Court by a certificate of fitness granted by High Court. Held, that the view of the High Court was correct. A person adopted according to the customs of the community, i.e. who is appointed as a heir to inherit the property of a person outside the family, does not. by virtue of such appointment, lose his right to inherit in his natural family except the right to inherit the property of his natural father when there are natural brothers. The natural brothers would take the property to the exclusion of such an adopted son and his defendants. Daya Ram vs Sohel Singh (1906) P. R. No. 110 (F.B.), Abdul Hussain Khan vs Bibi Sona Dero 1917) L.R. 45 I .A. 10, Vaishno Ditti vs Rameshri (1928) L. R. 55 I. A. 407, Mela Singh vs Gurdas, (1922) 1. L. R. , Jagat Singh vs Ishar Singh Lah. 615, Kanshi Ram vs Situ (1934) I. L. R.16 Lah. 214, Rahmat vs Ziledar (1945) 1. L. R.26 Lah. 504 and Jai Kapur vs Sher Singh, [1960] 3 section C. R.975, referred to.

A money suit against the appellant was dismissed by the trial court but the first appellate court passed an ex parte decree against him. The appellant 's property was sold in execution and purchased by the decreeholder. The appellant went to the High Court which set aside the exparte decree and remanded the suit. The appellant then filed an appli cation for restitution under section 144 of the Code of Civil Procedure. It was stayed pending proceedings in the main suit. 'Me suit was finally decided against the applicant, by the High Court. Thereafter the trial court allowed the appellant 's application for restitution. After intermediate proceedings the High Court decided in Letters Patent Appeal that the appellant was not entitled to restitution. He appealed to this Court by special leave. HELD: The application for restitution was filed by the appellant before the passing of a fresh decree by the High Court in second appeal. At the time of the application therefore the appellant was entitled to restitution because on that date the decree in execution of which the properties were sold had been set aside. The appellant was therefore entitled to restitution notwithstanding anything which happened subsequently. [27 C E] The principle of the doctrine of restitution is that on the reverse of a decree the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. The Court in making restitution is bound to restore the parties so far as they can be restored to the same position they were in at the time when the Court by its erroneous action had displaced them from. [27 E F] Zainal Abdin Khan vs Muhammad Asghar All Khan, I.L.R. 10 All 166, relied on. Set Umedmal & Anr. vs Srinath Ray & Anr. I.L.R. 27 Cal. 810, Raghu Nandan Singh vs Jagdish Singh, , Abdul Rahaman vs Sarafat Ali, and Shivbai Kom Babya Swam vs Yesoo, I.L.R. , referred to. Lal Bhagwant Singh vs Rai Sahib Lala Sri Kishen Das, , distinguished.

In the village of Challayapalam, there were six inams, namely, the Challayapalam Shrotriem and five minor inams but there was no information as to when the inams were created and by whom. In two suits, one filed by the shrotriemdars, against the tenants for a declaration that the tenants did not have occupancy rights in the lands in their occupation, and the other by the tenants for a declaration that they had occupancy rights, the question arose whether the shrotriem was an "estate" within the meaning of section 3 (2) (d) of the Madras Estates Land Act, 1908, as amended by Act 18 of 1936. The trial court held, on a review of the evidence, that the grant was of the whole village within the meaning of the section and that the tenants had occupancy rights. On appeal, the High Court held that the evidence on record was inconclusive, that the onus of proving that the ant was of an estate lay upon the tenants, and that, since the tenants had Failed to discharge the onus, the question should be decided against the tenants. In the appeal to this Court by the tenants, the question was : if there was no evidence justifying an inference that the grant was of a whole village, whether explanation 1 to section 3(2)(d) (added by Act 2 of 1945) gave rise to a presumption in favour either of the shrotriemdars or the tenants. HELD : The suit of the shrotriemdars must fail, because, the Explanation raises a presumption, where a grant is expressed to be of a named village, that the area which formed the subject matter of the grant shall be deemed to be an estate. Raising of the presumption is not subject to any other condition. The legislature has, by the non obstante clause in the Explanation, affirmed that such presumption shall be raised even if it appears that in the grant are not included certain lands in the village, which have, before the grant of the named village been granted on service or other tenure or have been reserved for communal purposes. The party contending that the grant in question falls outside the definition in section 3(2) (d), has to prove that case, either by showing that the minor inams not comprised in the grant were created, contemporaneously with or subsequent to the grant of the village, by the grantor. [857 D E; 861 C E] By enacting the Explanation the intention of the legislature was to declare occupancy rights of tenants in inam villages. It would be attributing to the legislature gross ignorance of local conditions. if it was held that the legislature intended to place upon the tenant the onus of establishing affirmatively that the minor inams were granted before the grant of the named village and that if he fails to do so his claim is liable to fail. It is well nigh impossible to discharge such a burden in normal cases. Nor was it intended that, when the evidence was inconclusive, the person who approached the Court for relief must fail, for, as in the present 842 843 case, if the inamdar as well as the tenant sue for relief, the application of the rule would require the court to adopt the anomalous course of dismissing both the actions. In cases, which arose after the Amending Act of 1936, reference to the presumption in section 23 of the Act would be wholly out of place, the applicable presumption being the one prescribed by Explanation 1. The presumption under section 23, that a grant in favour of an inamdar was of the melvaram only, applied only in cases which arose before the Amending Act of 1936. [857 G; 858 B; 860 B; 862 F G] District Board of Tanjore vs M. K. Noor Mohammad Rowther, A.I.R. 1953 S.C. 446 and Varada Bhavanarayana Rao vs State of Andhra Pradesh, ; , explained.

The 1960 Act makes provision for imposition of Ceiling on Land holdings and for determination of surplus land. It was amended by U.P. Act 18 of 1973 to lower the ceiling limit and to make provisions with regard to transfers of land in anticipation of the imposition of ceiling. This Act came into force on June 8, 1973. Further amendments were made in the Act by U.P. Act 2 of 1975 inserting Explanation I & Explanation II after sub section (1) of section 5 as substituted by 1973 Act and given effect retrospectively i.e. from June 8, 1973. A notice under section10(2) of Act was issued to the appellant and he filed objections submitting that Chhiddu Singh, his father, had executed a registered gift deed dated October 13, 1971 in respect of plot No. 111 measuring 63 Bighas, 12 Biswas and 17 Dhur in favour of appellant 's mother. appellant 's wife and two sons of the appellant. Chhiddu Singh died on April 28, 1973. Accordingly the said gifted land was not inherited by the appellant and it could not be treated as part of his holding for the purpose of imposition of ceiling. The prescribed authority overruled the objections, included the said land as part of the hold ing of the appellant and declared the surplus land of the appellant to the extent of 49 Bighas and 17 Biswas. The appellant filed an appeal to the First Additional Civil Judge. It was allowed partly and the surplus land was reduced to 42 Bighas 13 Biswas and 6 Dhur. The appellant thereafter filed a writ petition in the High Court which was dismissed. Feeling aggrieved the appellant filed this appeal after obtaining special leave to appeal. The appellant urged before this Court that amendments introduced by the 1973 Act are not retrospective in nature and are operative only from June 8, 1973, that the surplus land has to be determined as on June 8, 1973, the date of coming into force of 1973 Act, and that the 119 land gifted by the appellant 's father on October 13, 1971 could not be included in the holding of the appellant as he was not the tenure holder of the said land on the death of his father on April 28, 1973. Dismissing the appeal, the Court, HELD: The 1973 Act postulates that ceiling area of a tenure holder has to be determined in accordance with the provisions contained in sec. 5 of the Act. While determining the ceiling area, the surplus land held in excess of ceiling area, which is to be acquired by the State, has also to be determined. [123H; 124A] For determining ceiling area sub section (6) of section 5 provides that any transfer of land, which but for the transfer would have been declared surplus land under the Act if made after January 24, 1971 shall be ignored and not taken into account but transfers falling within the ambit of clauses (a) and (b) of the proviso to sub sec. (6) are, excluded, and such transfers even though made after January 24, 1971, have to be taken into account. [124B] In the instant case, the gift was made and executed on October 13, 1971 and it was a transfer of land and as it was made after January 24, 1971 the transfer of land was in respect of land which would have been declared surplus land under the Act. This transfer did not fall within the ambit of clauses (a) and (b) of the proviso to sub section (6) of section 5. Thus such gift was liable to be ignored for the purpose of determining the ceiling area applicable to the appellant. Sub section (6) of section 5 does not speak of a transfer by the tenure holder but it speaks of any transfer of land made after January 24, 1971. So the contention of the appellant that gift was made by his father and not by him as tenure holder and he did not inherit the same on the death of his father is untenable, since sub section (6) of section 5 is applicable to a transfer even made by the predecessors in interest of the tenure holder whose ceiling area is to be determined and who inherited the land prior to June 8, 1973. The land which was transferred vide gift deed dated October 13, 1971 was land which but for the said transfer would have been declared surplus land under the Act. [124C H; 125A] Thus, once the gift is ignored it is to be treated to have continued to vest in the appellant 's father and after his death the appellant inherited the same and as such was part of the holdings of the appellant on June 8, 1973 and has to be taken into consideration for determining the surplus land held by the appellant. [125B] 120

No. 85 of 1959. Writ Petition under article 32 of the Constitution of India for the enforcement of fundamental rights. A. V. Viswanatha Sastri, R. section Pathak, section N. Andley, Rameshwar Nath and P. L. Vohra, for the petitioner. K. N. Rajagopala Sastri and D. Gupta, for respondents Nos. 1 and 2. 1961. April 14. The Judgment of the Court was delivered by section K. DAS,J. One Ranjit Singh is the petitioner before us. The respondents are the Commissioner of Income tax, Lucknow, the Income tax Officer, Lucknow, and the Collectors of three districts in Uttar Pradesh, namely, Dehra Dun, kanpur and Lucknow, being officers under whose orders certain properties of the petitioner and his family have been attached in pursuance of a notice of demand issued under section 29 of the Indian Income tax Act, 1922, in circumstances which we shall presently state. The facts are shortly these. In 1948 the Central Government referred a number of cases in which the petitioner was concerned to the Income tax Investigation Commission set up under the relevant provisions 968 of the Taxation on Income (Investigation Commission) Act, 1947 (Act XXX of 1947), hereinafter referred to as the Act. On May 30, 1948, the Secretary of the Commission issued a notice to the petitioner to furnish a list of businesses or concerns in which the petitioner was interested and to produce the account books, registers etc. relating thereto. The petitioner complied with the notice. Then, an Autho rised Official appointed by the Commission commenced an investigation into the cases in February, 1949, and in due course submitted a report to the Commission. The Commission heard the petitioner and on April 16, 1949, submitted a report under section 8 A(1) of the Act. The findings of the Commission appear from the following extract from their report: "The total tax payable on the undisclosed in come upto March 31, 1947 would accordingly be Rs. 6,61,917. . . . . . The amount of Rs.6,61,917 may be recovered from Mr. Ranjit Singh and from the family assets in the hands of Mr. Ranjit Singh. In view of the admission recorded as number (iii) in para 6 supra, the tax will also be recoverable from the properties acquired between 1939 and 1947 in the names of Mrs. Ranjit Singh and Mr. Ranjit Singh 's sons Baljit Singh and Satendrajit Singh. In the circumstances, we recommend that no penalty be levied on the assessee in respect of non disclosures and false or incorrect statements so far made either to the income tax authorities or in the course of the present proceedings (including those before the Authorised Official). Mr. Ranjit Singh and Mr. Vaidyanatha Ayyar (representative of Mr. Ranjit Singh) have asked that they be allowed sufficiently long time to pay up the tax. It has been represented that out of taxes already assessed by the Income tax Department about Rs. 3,86,000 is still due and the addition of the amount leviable under this report will bring the assessee 's total liability to about 10 1/2 lakhs. Mr. Ranjit Singh has asked that he may be permitted to pay up this sum in not 969 more than five years, in instalments of not less than a lakh of rupees at a time. While we do not wish to go into the details of the offer, we recommend this request for time for favourable consideration by Government." Then, on November 7, 1949, the petitioner, his wife and two sons submitted a petition to the Commission in which they accepted the findings of the Commission as correct and offered to pay the tax in instalments in accordance with certain terms of settlement. Some of these terms are: "3. We offer to pay the aforesaid amount of Rs. 6,61,917 as per the following instalments: (1) on or before the 31st March, 1951 Rs. 1,00,000. (2) on or before the 31st March, 1952 Rs. 2,31,000. (3) on or before the 30th June, 1952 Rs. 3,30,917. We, however, pray that so far as the last instalment is concerned in case we are unable to pay the same by the date mentioned above and are able to satisfy the Central Board of Revenue that we have failed to raise the money for reasons beyond our control and for no fault of our own, a suitable extension of time may be granted. 5.In respect of the other instalments, we agree that in case of default in the payment of any one of them, the whole amount of tax outstanding at the time shall become immediately payable. " The report of the Commission and the terms suggested by the petitioner for a settlement were accepted by the Central Government and an order was passed under section 8 A(2) of the Act on November 21, 1949, which stated in its operative part that a demand notice be served immediately by the Income tax Officer concerned under section 29 of the Indian Income tax Act, 1922, on the petitioner in accordance with the terms and conditions of settlement and that all such other proceedings under the Indian Income tax Act or under any other law as may be necessary be taken with a view to enforce the payment of the demand and terms and conditions of the settlement. 122 970 The respondents allege that a demand notice was accordingly issued to the petitioner on December 2, 1949. The petitioner alleges, however, that he received the notice in or about April, 1950, after the Constitution of India had come into force. Thereafter, in pursuance of the demand notice certain payments were made by the petitioner. The petitioner was, however, unable to make full payment within the stipulated periods mentioned in the demand notice. The result was that according to the terms of settlement the whole amount outstanding at the time became immediately payable by the petitioner. Then, certain properties of the petitioner and his family were attached by the Collector of the district concerned in pursuance of the orders received from time to time from the Income tax Officer. On June 8, 1959, the petitioner filed the present writ petition challenging the legality of the demand notice dated December 2, 1949, and the subsequent proceedings taken in pursuance of that notice. The case of the petitioner is that after the coming into force of the Constitution of India on January 26, 1950, the demand notice could not be given effect to and the proceedings taken in pursuance of that notice are unconstitutional inasmuch as they violate his fundamental rights guaranteed by the Constitution. In the petition a reference has been made to Articles 14,31 and 19(1)(g) of the Constitution, but the argument before us has proceeded on the contention urged on behalf of the petitioner that there has been a violation of the fundamental right of equal protection of the laws guaranteed to him under article 14 of the Constitution inasmuch as he has been dealt with differently from other debtors who owe money to the State under a contractual liability. The substantial prayer of the petitioner is for the issuance of a writ of mandamus directing the respondents not to give effect to the notice of demand dated December 2, 1949, nor to take any proceedings for enforcing the terms of settlement and for recovery of the sums specified therein. The petition has been contested by the respondents and the principal point taken on their behalf is that 971 the legality of the demand notice dated December 2, 1949, cannot be challenged by the petitioner on the strength of the provisions of the Constitution, because the Constitution is prospective and not retrospective; secondly, it is contended on behalf of the respondents that the subsequent proceedings taken in pursuance of the demand notice aforesaid do not in any way violate the right of equal protection of the laws guaranteed under article 14 of the Constitution. It is convenient at this stage to refer to some of the earlier decisions of this Court on the question of con. stitutionality of some of the provisions of the Act. On May 28, 1954, this Court delivered judgment in Suraj Mall Mohta and Co. vs A. V. Visvanatha Sastri and Another (1). It is not necessary to state the facts of that decision. It is enough to say that it was held therein that sub section (4) of section 5 of the Act war, bad, as it offended the provisions of article 14 of the Constitution. Sub section (4) of section 5 of the Act having been declared void, Parliament passed the Indian Income tax Amendment Act (33 of 1954) amending section 34 of the Indian Income tax Act, 1922. As a result of this amendment, the validity of sub section (1) of section 5 of the Act came in for challenge on the ground that the Income tax Officer could pick out some out of the class of substantial tax evaders and refer their cases under sub section (1) of section 5 while dealing with other such persons under amended section 34 of the Indian Income tax Act. In Shree Meenakshi Mills Ltd., Madurai V. A. V. Viswanatha Sastri and Another(2), sub section (1) ' of section 5 of the Act was held to be bad on that ground. It should be noted that in none of the petitions disposed of by that judgment had any assessment been made under the Act and this Court only prohibited further proceedings before the Commission under the Act, Finally, on December 20, 1955, came the decision of this Court in M. CT. Muthiah & two Others vs The Commissioner of Income tax, Madras & Another (3). In that case, on a reference under B. 5(1) of the Act, the Commission submitted its report to Government under (1) ; (2) (3) 972 s.8(1) of the Act on August 26, 1952 that is, after the coming into force of the Constitution, and the Central Government made its order under section 8(2) of the Act on September 16, 1952. In these circumstances it was held: "The result, therefore, is that barring the cases of persons which were already concluded by reports made by the Commission and the directions given by the Central Government under section 8(2) of the Act XXX of 1947 culminating in the assessment or reassessment of the escaped income, those cases which were pending on the 26th January 1950 for investigation before the Commission as also the assessment or reassessment proceedings which were pending on the 26th January 1950 before the Income tax Officers concerned in pursuance of the directions given by the Central Government under section 8(2) of the Act would be hit by Article 14 of the Constitution and would be invalidated. " Lastly, came the decision in Basheshar Nath vs The Commissioner of Income tax, Delhi & Rajasthan and Another (1). That was a case of a settlement under section 8 A of the Act as in the present case, but the fact which distinguishes that case from the present is that the settlement there was made after the commencement of the Constitution. It was held therein that the settlement was the result of a procedure which became discriminatory after the commencement of the Constitution and was therefore bad, and as the discriminatory process of investigation continued even after the commencement of the Constitution, the principle laid down in Syed Qasim Razvi vs The State of Hyderabad and Others (2 ) did not apply. The point which requires emphasis with regard to these earlier decisions is this: they all dealt with the operation of a discriminatory procedure under the different provisions of the Act after the commencement of the Constitution. The position in the case under our present consideration is that the settlement, the order under section 8 A(2) of the Act, and even the notice of damaged in pursuance of that order all these took (1) [1959] Supp. 1 S.C. R. 528. (2) 973 place before the coming into force of the Constitution, and this ' vital distinction must be borne in mind in considering the contentions urged by learned Counsel for the petitioner. The main contention is that the proceedings taken against the petitioner in pursuance of the order under section 8 A(2) are violative of the guarantee of equal protection of the laws under article 14 of the Constitution. There are, however, two subsidiary contentions which do not directly raise any question of the violation of a fundamental right, and these may be disposed of before we deal with the main contention. In his petition the petitioner has stated that he received the demand notice dated December 2, 1949 in or about April, 1950. In the counter affidavit of the respondents it has been stated that the assessee was informed of the demand early in December, 1949. A copy of the order of the Central Government under section 8 A(2) of the Act dated November 21, 1949, was sent to the petitioner; there is an endorsement in the office copy of the demand notice dated December 2, 1949, that it was sent by registered post, acknowledgment due. Thereafter, the petitioner paid part of the tax on different dates without raising any objection that he had not received the demand notice before April, 1950. It was for the first time in April, 1959, some ten years after, that the petitioner asked for a copy of the order under section 8 A(2) and information as to the date when he had received the regis tered notice of demanad. He also asked for an inspection of the file. This was, however, refused. Then, the petitioner made the statement that he had received the demand notice in or about April, 1950. He said that the statement was based on his knowledge; he did not disclose the source of his knowledge nor did he say how he remembered ten years after, without reference to any documents, that he had received the demand notice in or about April, 1950. We are unable to accept the statement as correct. On the materials in the record it is clear that the proceedings against the petitioner culminating in the service of the notice of demand against him were all completed 974 before the coming into force of the Constitution and the petitioner cannot challenge those proceedings under article 14 of the Constitution; for it is well settled that the Constitution is prospective and not retrospective. On the construction of section 8 A of the Act it has been argued that after the order made by the Central Government under sub section (2) thereof, a fresh assessment was necessary and as no such assessment was made, all subsequent proceedings for recovery of the tax are illegal. This is a point which has not been specifically taken in the petition. That apart, we do not think that there is any substance in this contention. We may here read section 8 A, so far as it is relevant: "section 8 A. (1) Where any person concerned in any case referred to or pending before the Commission for investigation applies to the Commission at any time during such investigation to have the case or any part thereof settled in so far as it relates to him, the Commission shall, if it is of opinion that the terms of the settlement contained in the application may be approved, refer the matter to the Central Government, and if the Central Government accepts the terms of such settlement, the Commission shall have the terms thereof recorded and thereupon the investigation, in so far as it relates to matters covered by such settlement, shall be deemed to be closed. (2) For the purpose of enforcing the terms of any settlement arrived at in pursuance of sub ,section (1), the Central Government may direct that such proceedings as may be appropriate under the Indian Income tax Act, 1922 (XI of 1922), the Excess Profits Tax Act, 1940 (XV of 1940) or any other law may be taken against the person to whom the settlement relates, and, in particular, the provisions of the second proviso to clause (a) of sub section (5) of section 23, section 24B, the proviso to sub section (2) of section 25A, the proviso to sub section (2) of section 2 6 and sections 44 and 46 of the Indian Income tax Act, 1922 shall be applicable to 975 the recovery of any sum specified in such settlement by the Income tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income tax or an arrears of income tax within the meaning of those provisions. " The scheme of section 8 A is different from that of section 8. The latter section contemplates an assessment or reassessment in accordance with the direction of the Central Government; see sub section (4) of s, 8. That is not the position under section 8 A, sub section (2) whereof provides for the enforcement of the terms of any settlement arrived at in pursuance, of sub section There is Do doubt a reference to certain special provisions of the Indian Income tax Act, 1922, regarding assessment of partners in a registered firm, tax payable by the representative of a deceased person etc.; but the reference to those provisions does not necessarily mean that a fresh assessment must be made. They merely show that these special provisions will be applicable in appropriate cases. Sub section (2) ends by saying that "sections 44 and 46 of the Indian Income tax Act, 1922, shall be applicable to the recovery of any sum specified in such settlement by the Income tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income tax or an arrears of income tax within the meaning of these provisions. " This clearly shows that the true scope and effect of the sub section is to enforce the terms of any settlement arrived at in pursuance of sub section (1) and to recover any sum specified in such settlement as if it were income tax or arrear of income tax in accordance with the provisions of sections 44 and 46 of the Indian Income tax Act, 1922. We are unable, therefore, to accept the construction which learned Counsel for the petitioner seeks to put on the sub section. This brings us to the main contention that the petitioner has been subjected to a discriminatory procedure after the coming into force of the Constitution by reason of section 8 A(2) of the Act. Learned Counsel for the petitioner has put his argument in the following way. He has submitted that what the petitioner agreed to pay to Government was really a 976 debt arising out of a contract viz., the settlement between him and Government and the petitioner is one amongst the larger class of persons who are debtors of Government; against all other debtors Government have the ordinary remedy by way of suit but against the petitioner a special remedy is provided which is more drastic and envisages the imposition of a penalty under section 46 of the Indian Income tax Act, 1922, if the petitioner is in default in making a payment of the amount due. This, it is argued, is a discriminatory procedure which has been continued even after the coming into force of the Constitution. We are unable to accept this argument as correct. First of all, the petitioner does not really belong to the larger class of persons whom learned Counsel has characterised as debtors of Government. The petitioner belongs to a special class who had evaded payment of Income tax and had entered into a settlement to pay the amount due as income tax or arrear of income tax. For this class of persons the procedure laid down in section 8 A(2) is one and the same, and no discrimination is made in favour of or against any member of the same class. The classification is a, reasonable classification having a just relation to the object of the pro vision. For the recovery of the amount due as income tax or arrear of income tax all these persons are treated on the same, footing. Neither is there any discrimination between them and other persons similarly placed in the matter of recovery of income tax.or arrears of income tax. Secondly, it is open to the legislature to make a law as to how particular Government dues should be realised and if the law applies equally to all persons similarly situated, no objection call be taken to such law on the ground of discrimination. The truth of the matter is that what the petitioner agreed to pay to Government is really income tax which should have been paid in regard to the relevant assessment years but which had escaped assessment and therefore the recovery is to be made according to income tax law. That is all that section 8 A(2) says. In the decisions of this Court to which we bad earlier adverted, what was held to be bad was 977 the application of a discriminatory procedure after the coming into force of the Constitution;. even in Basheshar Nath 's case (1) the Commission applied the discriminatory procedure after the coming into force of the Constitution and then submitted its report on May 24, 1954, and the Central Government accepted the settlement on July 5, 1954. It was held that the settlement itself was vitiated by the discriminatory procedure adopted by the Commission. That is not the position here. In this case everything was con cluded before January 26, 1950, when the Constitution came into force, including the issuance of a notice of demand. All that remained to be done was the recovery of the amount according to the notice of demand. Therefore, the crucial question is is the recovery procedure discriminatory in any way, having regard to the undoubted validity of the proceedings which had been taken against the petitioner before ,January 26, 1950? We are unable to answer this question in favour of the petitioner for the reasons which we have already stated. Learned Counsel for the petitioner relied on the decision in M. L. M. Muthiah Chettiar and Others vs Commissioner of Income tax, Madras (2). The facts of that case were entirely different and no question arose there of considering the provisions of section 8 A (2) of the Act. For these reasons we hold that there is no merit in the petition which is, accordingly, dismissed with costs. Petition dismissed. (1) [1959] SUPP. 1 S.C.R. 528.

In 1948 the Central Government referred a number of cases in which the petitioner was concerned, to the Income tax Inves tigation Commission set up under the relevant provisions of the Taxation on Income (Investigation Commission) Act, 1947. After the Commission had submitted the report under section 8 A(1) of the Act, in which the total tax payable on the undisclosed income upto March 31, 1947, was estimated, the petitioner applied for a settlement of his case by offering to pay the amount of tax in instalments and by agreeing to pay the whole amount immediately in case of default in payment of any of the instalments in time. The Central Government accepted the terms suggested by the petitioner and passed an order on November, 21, 1949, under section 8 A(2) of the Act directing the service of a demand notice on the petitioner and recovery of the tax in accordance with the terms and conditions of the settlement. On December 2, 1949, a notice of demand was issued to the petitioner who, in pursuance thereof, made certain payments. But as the petitioner was unable to make full payment within the stipulated periods, the whole amount outstanding became immediately payable and certain properties belonging to him and his family were attached by the Collector of the district Concerned for the recovery of the amount. On June 8, 1959, the petitioner filed a writ petition tinder article 32 of the Constitution of India challenging the legality of the demand notice dated December 2, 1049, and the subsequent proceedings taken in pursuance of that notice on the ground that after the coming into force of the Constitution of India on January 26, 1950, they were violative of the fundamental right of equal protection of the laws guaranteed under article 14, inasmuch as what he had agreed to pay the Government as a result of the settlement was really a debt, and he had been dealt with differently from other debtors who owed money to the State under a contractual liability. Held, (1) that the proceedings against the petitioner cul minating in the service of the notice of demand against him were all completed before the coming into force of the Constitution and the petitioner cannot challenge those proceedings under 967 article 14 of the Constitution, because it is well settled that the Constitution is prospective and not retrospective; (2) that the true scope and effect of sub section (2) of section 8 A is to enforce the terms of any settlement arrived at in pursuance of sub section (1), which was really income tax which had escaped assessment; (3) that the petitioner belonged not to the larger class of debtors of Government but to a special class which had evaded payment of income tax for which the procedure laid down in section 8 A(2) was one and the same, and that the classification being reasonable having a just relation to the object of the provision, the recovery procedure cannot be challenged as discriminatory under article 14. Suraj Mail Mohta and Co. vs A. V. Visvanatha Sastri and Another, [1955] 1 S.C.R.448, M. CT. Muthiah & two Others vs The Commissioner of Income tax, Madras & Another, ; and Basheshar Nath vs The Commissioner of Income tax, Delhi & Rajasthan and Another, [1959] Supp. 1 S.C.R. 528, distinguished.

The petitioner, a voluntary Organization Interested In protecting environment, approached this Court under Article 32 of the Constitution of India complaining of the widespread illegal mining activity going on in the area declared as a Tiger Reserve In Alwar District in the State of Rajasthan. It prayed that in the interest of ecology, environment and rule of law, the activity should stop. It was alleged that the area where the mining activity was carried on was declared as a tiger reserve under the Rajasthan Wild Animals and Birds Protection Act, 1951; as a sanctuary and a National Park under the Wild Life (Protection) Act, 1972 and as protected forest under the Rajasthan Forest Act, 1953, and that these notifications prohibit all or any mining activity, and yet the State Government had granted hundreds of licences for mining marble, dolomite and other materials and that such section was contrary to law. This Court Issued notices to the State Government and the mineowners respondents In the Writ Petition. An interlocutory direction was also made that no mining operation be carried on in the protected 22 area. The Court also appointed a Committee under the Chairmanship of a Former Judge of the State High Court to ensure due observance of the various Acts and Notifications that had been issued in respect of the protected area. The Committee was requested in particular to demarcate the area declared as protected forest under the notification dated January 1, 1975 issued by the Rajasthan Government under Section 29 of the Rajasthan Forest Act. The Committee submitted its Report dated September 28,1992, stating that the committee had verified and cross checked the tracing maps furnished by the Forest Department with the maps furnished by the Revenue Department and found that both of them matched, and that after looking into the Khasra numbers mentioned in the notification dated January 1, 1975 and the other material placed before it by the parties, the Committee identified the areas declared as protected forest. It stated that they were not in one contiguous block but were comprised in several blocks or areas. The 215 mines mentioned in Appendix A to the Report fall completely within the areas declared as protected forest while 47 mines mentioned in Appendix II to the Report fall partly inside and partly outside the areas declared as protected forest. There was no difference of opinion among the members of the committee regarding the location of the mines but only with respect to the question whether they should be directed to he closed. The Chairman recommended that the mining operations in all the 215 mines listed in Appendix A should be stopped forthwith and the mining operation in the 47 mines listed in Appendix B be stopped forthwith to the extent they fell within the area declared as protected forest. The three other Members of the Committee viz. Collector, Chief Conservator of Forest and Chief Wildlife Warden and Additional Director of Mines differed from the Chairman. They suggested that this Court should accede to the representation of the State Government (Appendix IC ') that the area covered by the mines should be allowed to be excluded from the protected forest, in lieu of which the state Government undertook to provide an equal extent of the area for being included in the protected forest. The Sate Government 's application to the Court was also to the same effect. It was stated therein that the protected forest area measures about 800 23 Sq. kilometers whereas the 262 mines mentioned in Appendixes 'A ' and `B ' cover only an area of 2.08 Sq. kilometers and that in the interest of the economy of the State, industry and workers, an extent of 5.02 Sq. kilometers including the area covered by the said mines be allowed to be deleted from the protected forest, the State Government offering to place an equal extent for the purpose of being declared as protected forest. The mine owners also riled objections to the Report of the Committee and requested that they he allowed to continue their mining operations. The Government of India which was directed to file an affidavit. riled the same and stated that the area declared as project tiger/tiger reserve was covered by notification issued under the Rajasthan Forest Act, Environment Protection Act, 1986 and the Mines and Minerals Regulation and Development Act, 1957. It submitted that the Forest Conservation Act applies not only to reserve and protected forest but to all areas recorded as forest in Government records, and that Mining was non forestry activity and, therefore, cannot be carried on in areas to which the Forest Conservation Act applies, without prior approval of the Government of India. It was further stated that on May 7,1992 the Government of India had issued the final notification under Section 3 of the Environment Protection Act, 1986 prohibiting all mining activity, except with the approval of the Government of India and that since no permission was obtained under any of the said enactments with respect to the said 262 mines, no mining operations can be carried on in the area unless and until the permission of the Central Government was obtained. On petitioner 's behalf it was submitted that all the mining activity in the areas notified under the notification dated May 7,1992 should have stopped long ago and continuance of mining activity amounts to gross contempt and constitutes a clear violation of orders; that the State Government appears to be colluding with the mineowners which is evident from the dissent expressed by officers of the State Government who were Members of the Committee to the straight forward and logical recommendation of the Chairman, and that prohibition of mining flows from the provisions, of the Forest 24 Conservation Act as well as the notification issued under the Environment Protection Act in May, 1992. On behalf of the State Government It was submitted that the State Government and Its, officers were not aware when they granted leases/licences in respect of the listed mine that they fell within the area declared as protected forest and that the certificate issued by the Forest Department indicates that they did not fall within the protected forest area. It was thus a bonafide grant. It was further submitted that the State was prepared to abide fully by the orders of this Court, 54 mines had been shut down and it was prepared to shut down all the listed mines if this Court so directs. A map prepared by the State officers showing the areas covered by tiger reserve, sanctuary, protected forest, and the location of the listed mines was placed before the Court for consideration. On behalf of the mine owners in Mallana village it was submitted that demarcation of protected forest by the Committee was defective, erroneous and unacceptable for the various reasons set out in the objections riled to the report, that the map produced by the State Government delineating the tiger reserve was incorrect besides being an authenticated, that the mine owners do not admit that their mines fell within the tiger reserve or within the protected forest areas, and that closing down of hundreds of mines employing thousands of workers, wherein a large amount of capital was invested would disturb the economy of the State besides affecting the supplies of marble and other minerals, serving no public purpose. On behalf of the some of the other mine owners it was submitted that it was unsafe to act upon and to pass any orders based upon the map produced by the State Government; that the declaration as tiger reserve by the Government of India was not under any statutory authority; that the areas declared as protected forest was not coextensive with the area declared as tiger reserve and sanctuary and national park; that none of the mines fell within the sanctuary or the National Park not even within project tiger, and that the mine owners are as much interested In protecting the environment and ecology as the petitioner. 25 Declaring that the relevant laws were violated, and passing directions, the Court, HELD: 1. This is not a case where the Court is called upon to shut down an activity being carried on lawfully, in the name of higher considerations of ecology and environment. It is a simple case to ensure observance of enacted laws made by the State to protect the environment and ecology of the area. In such a case, there is no need to be oppressed by considerations of balancing the interest . of economy and ecology. That has already been done by the Legislature and Parliament (37 D E). In the instant case, the petitioner 's grievance is against the executive. Charged with the delegation of implementing the laws of the land, the executive is yet failing to do its duty by law and by people, and that when faced with the might of money, respect for law is dissolving into respect for gammon (37 E F). The State Government is empowered not only to declare any forest land as a protected forest but also any waste land as such. The idea evidently is not only to protect the existing forest but also to bring waste lands under schemes of afforestation. Once declared as protected forest, the distinction between forest land and waste land disappears. The entire area becomes a protected forest. (38 B) 3. Reading Section 29 of the Rajasthan Forest Act as a whole, it appears, the normal rule is to make an enquiry into the rights of the state Government and of the private parties over the land proposed to be declared as protected forest in the first in stance, prepare a record thereof and then declare it as a protected forest. But in case of urgency, It is open to the State Government to Issue such notification forthwith subject, of course, to the existing rights of individuals and communities in the area concerned. (38 F) In the instant case, the notification dated January 1, 1975 issued by the Government of Rajasthan appears to be one issued under the proviso to sub section (3) of Section 29. (38 G) 4. Section 29 contemplates only one notification declaring an 26 area as a protected forest. Whether issued after a normal enquiry and record or without enquiry or record, Section 29 contemplates only one notification and not two in any event. Therefore, the notification issued is the valid and effective one. It is not a provisional or preliminary notification. It is not also the case of the mine owners that leases or licences in their favour were granted prior to January 1, 1975. All of them were granted in the middle of or in the late eighties. The savings clause contained in the proviso to sub section(3)does not avail them. (39 A B) 5. The Committee appointed by this court to demarcate and identify the areas declared as protected forest was composed of high officials of the Government of Rajasthan. They had undertaken an elaborate and intensive exercise and have demarcated the areas declared as protected forest with the help of the official maps and records. There is no reason not to accept the said report. The several objections submitted by the mine owners cannot prevail over the official maps and records. They were represented before the commission at the time of the said exercise. The dissent note appended by the officers of the Government of Rajasthan was not with respect to the demarcation or identification of areas declared as protected forest, but only with respect to the closure of the mines operating within those areas. The report of the committee is accepted. (39 D F) 6. Once an area is declared as a protected forest it comes within the purview of the . Even the State Government cannot carry on any non forest activity in the said area without prior approval of the Central Government. That the mining activity amounts to non forest purpose is beyond dispute. Thus the grant of mining lease /licenses their renewal by the State Govern ment, without obtaining the prior approval of the Central Government in respect of the mines situated within the protected forest after January, 1, 1975 is contrary to law. (39 G H, 40 B) 7. All the mines listed in Appendix A to the Committee 's Report do fall within the areas declared as protected forest while the mines listed in Appendix B fall partly with in and partly out side such areas. (41 B) 27 8. According to rule 4(6) of the Rajasthan Minor Mineral A ' Concession Rules, 1986 no mining lease could have been granted or renewed within the forest "without clearance from the Central Government in accordance with the forest (Conservation) Act, 1980 and the Rules made there under". Admittedly, no such prior approval or clearance of central Government was obtained. The purpose of Forest Acts and Environmental Protection Act may not always be the same. Closure of the mines may not serve the environmental purpose but it may serve the forest purpose. (40 B) 10. It is appropriate that the merits of the proposal of the State Government to delete an extent of 5.02 Sq. kilometers from out of the protected forest be examined by the Ministry of Environment and Forest, forests, and a report submitted to this Court, within three months. Orders will be passed thereafter on the application riled by the State of Rajasthan. (40 E) 11.The notification issued by the Central Government under Section 3 of the Environment (Protection) Act 1986 on May 7, 1992 expressly prohibits the carrying on of mining operations, except with the Central Government 's prior permission, in the "areas covered under project tiger". The prohibition extends to existing mining leases in Sanctuaries/National Park. All mining operations are pro hibited therein. (41 C D) 12. There can he no legitimate dispute with respect to the correctness of the map produced by Government of Rajasthan or with respect to the area declared as tiger reserve. Both the State Government and Central Government have delineated it. May be that the declaration as tiger reserve was without any statutory authority and is relatable to the executive power of the Union of India but the notification issued under Section 3 of the Environment (Protection) Act puts the stamp of statutory authority over it. The Central Government has specifically stated in its affidavits that no "prior permission" was obtained with respect to the mines located within the tiger reserve. On this ground, the mining operations being carried on in the tiger reserve, including the listed mines also appears to be 28 contrary to law. (42 C D) 13.The situation is that the mining activity in the listed mines mining activities in 54 mines has already been stopped) is illegal and has to stop. May be that this will have the effect of bringing to halt the activity involving a good amount of capital and a large number of workers. But in view of the inherent illegality attaching to them, there is no option but to close them. They cannot be permitted to operate. If and when the Central Government recommends the plea of the State Government and any of the areas already declared as protected forest are deleted with the leave of this Court, can the mining activity go on in these areas. (43 D) 14.It is directed that the mining activity in the mines situated outside the protected forest areas but within the tiger reserve may continue for a period of four months. Within this period it shall be open to the concerned mine owners to approach the Department of Forest and Environment, Government of India for permission to continue their mining operations. They can continue the mining operations in these mines only if the Central Government permits them and subject to the orders of the Central Government in that behalf. If no permission is obtained from the Central Government within the said period of four months, the mining activity in the entire area declared as tiger reserve shall stop and cease on the expiry of four months. (44 B C)

In 1947 S conveyed by a sale deed to M an undivided half share of Land in his village. On the same day S executed a Kabulayat for 5 years in respect of the same land for cultivation. In 1951 the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951, came into force and the Compensation Officer started enquiry about assessment of compensation. M claimed to retain possession of the half share in all the fallow lands in the village which had been leased by him for cultivation to S on the plea that these lands were 'home farm '. The claim 711 was rejected by the Compensation Officer and confirmed by the Additional Settlement Commissioner. The High Court of Nagpur quashed the order. In appeal to the Supreme the Additional Settlement Commissioner contended that in respect of an undivided interest in the land, the superior holder is not entitled to the benefit of section 4(2) of the Act because it is not a 'holding ', alternatively, that the land which was, at the date of vesting, lying fallow otherwise than in accordance with the usual agricultural practice could never be regarded as 'home farm '. ^ Held, that a part of a holding or an undivided interest in a " holding" in Berar may also be 'home farm ' land if it otherwise fulfils the requirement of cl. (i), (ii) or (iii) of sub cl. (3) of section 2(g) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951. The land having been granted in lease for cultivation it is by virtue of section 4(2) of the Act to be retained in the possession of the proprietor. Grant of a lease for cultivation evidences an intention on the part of the proprietor that the land is to be converted to agricultural purposes, and default on the part of the lessee to cultivate the land will not deprive the lessor proprietor of the benefit granted to him by the statute.

The appellants, two of the electors of the Akola Constituency of the Madhya Pradesh State Assembly, filed an Election Petition against Respondent No. 1, the successful candidate in the election held on December 13, 1951, and the three other respondents who having been validly nominated went to the polls but were defeated. The Election Petition, under Section 80 of the Representation of the People Act of 1951, was admittedly time barred by one day. The Election Commission condoned the delay under the proviso to Section 85 of the Act and constituted a Tribunal for the trial of the petition. On pleadings of the parties, nine issues were framed by the Tribunal which are covered by the following questions: (1) Whether the election petition was presented by a properly authorised person. (2) Whether there was sufficient cause for presentation of the petition one day out of time. (3) Whether the petition was defective for non joinder of certain parties as respondents. (4) Whether the petition was defective for want of proper verification. (5) Whether,the petition was defective for vagueness of the particulars relating to the corrupt practices set out in Schedule A thereto. The Tribunal found only the first of the above points in favour of the petitioners by a majority. But in respect of the other four points, it held against the petitioners unanimously. As a result of the adverse findings on these four points, the petition was dismissed without any trial on the merits. It is against this dismissal that the appellants have now come up to this Court on obtaining special leave. When the delay in submitting an election petition is condoned 429 by the Election Commission in exercise of its power under the proviso to Section 85 of the Representation of the People Act (Act XLIII of 1951), it is not open to the Election Tribunal, under Section 90(4) of the Act, to reconsider the question of limitation. Even if, according to the requirement of Section 82 of the Representation of the People Act, any of the necessary parties other than the returned candidate has not been impleaded, the petition is not liable to be dismissed in limin on that sole ground; but it is a matter to be taken into consideration at the appropriate stage with reference to the final result of the case. Section 83(1) of the Act provides that an election petition has to be verified in the manner provided for verification of pleadings under the Code of Civil Procedure. Clauses (2) and (3) of rule 15 in Order VI of the Code lay down the procedure for verification of pleadings. Apart from those cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss an application on the sole ground of the absence of the date of verification. In such a case the applicant should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earlier omission. The requirement of "full particulars" of corrupt practices in Section 83(2) of the Act, is one that has got to be complied with, with sufficient fullness and clarification, so as to enable the opposite party to meet the allegations against him fairly, and so as to prevent the enquiry from being turned into a rambling and roving inquisition. The primary responsibility for furnishing full particulars of alleged currupt practices and for filing a petition in full compliance with Section 83 (2) of the Act is that of the petitioners. If they fail to do so initially it is their duty and responsibility to remove the defects when opportunity is available. Tribunals, however, should not take an all too narrow view of their function in dealing with the various alleged defects in the petition and dismiss it on the ground of want of particulars. They should call for better particulars and if that order was not complied with strike out such of the charges as are vague. The petitioners also alleged that the returned candidate was disqualified to stand because he had interest in contracts with the Government. But the Tribunal ignored these allegations and without enquiring into their truth dismissed the petition on the ground that the allegations relating to the charge of corrupt practices were vague, Held that it was not in the interest of purity of elections that such allegations of disqualification should be ignored and that it was a matter which called for enquiry. Case remitted for enquiry with reference to the allegations that the returned candidate was disqualified and the charge of corrupt practice, which was held to be not vague. Dinabandhu vs Jadumoni ( ; and Jagan Nath vs Joswant ([1954] S.C.R. 892), followed, 430

The respondent imported 2,000 drums of mineral oil and the appellant confiscated 50 drums and imposed a personal penalty. The appeal of the respondent was dismissed by the Central Board of Revenue. The respondent filed a petition under article 226 of the Constitution in the Calcutta High Court. A Full Bench of the High Court held that the High Court had no jurisdiction to issue a writ against the Central Board of Revenue in view of the decision in the case of Saka Venkata Subbha Rao. However, as the Central Board of Revenue had merely dismissed the appeal against the 564 order of the appellant, the High Court further held that it had jurisdiction to pass an order against the appellant. The appellant came to this Court after obtaining a certificate. Held that the appellant had merged into that of the Central Board of Revenue and hence no order could be issued against the appellant. It is only the order of the appellate authority which is operative after the appeal is disposed of. It is immaterial whether the appellate order reverses the original order, modifies it or confirms it. The appellate order of confirmation is as efficacious as an operative order as an appellate order of reversal or modification. As the appellate authority in this case was beyond the territorial jurisdiction of the High Court, it was not open to the High Court to issue a writ to the original authority which was within its jurisdiction. Election Commission, India vs Saka Vankata Subba Rao, , A. Thangal Kunju Mudatiar vs M. Venkitachalam Poiti, ; , Commissioner of Income tax vs M/s. Amritlal Bhogilal & Co. [1959] section C. R. 713 and Madan Gopal Rungta vs Secretary to the Government of Orissa, (1962) (Supp.) 3 S.C.R. followed. Barkatali vs Custodian General of Evacuee Property, A. 1. R. , overruled. Joginder Singh Waryam Singh vs Director, Rural Rehabilitation, Pepsu, Patiala, A. 1. R. 1955 Pepsu 91, Burhanpur National Textile Workers Union vs Labour Appellate Tribunal of India at Bombay, A. I. R. , and Azmat Ullah vs Custodian, Evacuee Property, A.I.R. 1955 All 435, approved. State of U. P. vs Mohammed Nooh, ; , distinguished.

A Hindu undivided family committed default in payment of income tax, and a certificate for recovery of tax due to the family was issued by the Income Tax Office in exercise of the power conferred by rule 76 of Sch. II of the Income Tax Act, 1961. The Tax Recovery Officer directed the arrest and detention in prison of the karta of the family for non payment of tax. The Karta then moved a petition in the High Court of Andhra Pradesh challenging his detention on the ground that he was not a defaulter. The petition was rejected. The Karta appealed. He also moved a petition under article 32 of the Constitution in the Supreme Court for an order for his release from custody. HELD : The Legislature having treated a Hindu undivided family as a taxable entity distinct from the individual members constituting it,. and proceedings,for assessment and recovery of tax having been taken! against the Hindu undivided family, it was not open to the Tax Recovery Officer to initiate proceedings against the manager of the Hindu undivided family for his arrest and detention. The manager by virtue of his status is competent to represent the Hindu undivided family, but on that account he cannot for the purpose of section 222 of the Act of 1961 be deemed to be. the assessee when assessment is made against the Hindu undivided family and certificate for recovery is also issued against the family. [695 B D] For the purposes of cl. (a) of section 2(7) the person against whom, any proceeding under the Act has been taken is deemed an assessee: but that postulates that the proceeding should be lawfully taken against the person before he may be deemed to be an assessee for the purpose of section 222 or r. 2 and r. 73. There is no provision in the Act which deems the manager to be the assessee for the purpose of assessment and recovery of tax, when the income of the Hindu undivided family of which he is the Manager is assessed to tax. Nor is there any provision in the Act enabling the Income tax Officer or the Tax Recovery Officer to treat the manager of the Hindu undivided family as an assessee in default in respect of tax due by the Hindu undivided family. The Legislature has again made no provision for recovery of tax by resort to the personal property of the manager of the Hindu undivided family assessed to tax or by his arrest and detention for default by the family in paying the tax due. [695 H696D]

The appellant, who was a returned candidate, filed a recrimination petition in the election petition filed by the first respondent and another. As a result of the recount to which all the parties had agreed, the High Court declared the first respondent as elected. Hence this appeal. Dismissing the appeal. ^ HELD: The case of Jabar Singh vs Genda Lal on which the appellant relies is of no assistance to him because the facts of the present case are clearly distinguishable from that case. In that case the returned candidate did not recriminate as provided under sec. 97 of the Representation of the People Act, 1951. In the instant case, the appellant had admittedly recriminated and in the recrimination petition one of the grounds taken related to the errors committed at the time of the counting of votes of the Ist respondent by the Returning Officer. The appellant had also agreed to the recounting of the votes secured by all the parties. [796 E G] Jabar Singh vs Genda Lal, ; , referred to and distinguished.

Pursuant to the directions of the Income tax Appellate Tribunal, the Income tax Officer, determined the assessee 's capital gains under section 12B of the Income tax Act, 1922. He did not, however, make any order under section 23(3) of the Act, nor did he issue a notice of demand under section 29 of the Act. The assessee filed an application before the Commissioner of Income tax, under section 33A(2) of the Act, for revising the computation made by the Income tax Officer drawing his attention to a decision of the Bombay High Court in Baijnath 's case, , as to how the capital gains should be ascertained. That decision was based upon a consideration of the very documents which were the basis of the assessees ' claim. The Commissioner dismissed the revision petition as not maintainable, as well as on merits, ignoring the Bombay decision. Meanwhile, the assessee filed an application requesting the Income tax Officer to issue a notice of demand under section 29, to enable him to file an appeal, but the Officer declined to do so. The assessee filed a writ application in the High Court for issuing appropriate writs to the Commissioner and the Income tax Officer, but the High Court dismissed it in limine. In his appeal to this Court, the assessee contended that (i) the High Court erred in holding that the affidavit filed in support of the writ petition was not in accordance with law, and that even if there were any defects the High Court should have given him an opportunity to rectify them, and (ii) the High Court erred in distinguishing the Bombay decision and in holding that there was no force in the revision filed before the Commissioner, and that, the High Court should have directed the Commissioner to entertain the revision and dispose of it in accordance with law by giving suitable directions to the Income tax Officer. The respondent raised a preliminary objection that as the order of the Commissioner was an administrative act, article 226 of the Constitution could not be invoked. HELD:(i) As no appeal lay to the Appellate Assistant Commissioner against the calculations made by the Income tax Officer, the Commissioner had powers under section 33A(2) to revise the Income tax Officer 's order. The jurisdiction conferred on the Commissioner by the section is a judicial one, The nature of the jurisdiction and the rights decided carry with them necessarily the duty to act judicially in disposing of the revision. Further, the fact that a Division Bench of one of the High Courts in India had taken a view in favour of the assessee, indicated that the question raised was arguable and required serious consideration. Therefore, a writ of certiorari quashing the order of the Commissioner dismissing the assessee 's revision petition, should be issued. [544E G; 548D] 537 Sitalpore Colliery Concern Ltd. vs Union of India, , Additional Income tax Officer, Cuddapah vs Cuddapah Star Transport Co. Ltd. and Suganchand Saraogi vs Commissioner of Income tax, , overruled. Even if the Commissioner only made an administrative order in refusing, to give any direction to the Income tax Officer, the assessee would still be entitled to approach the High Court under article 226, and a writ of mandamus directing the Income tax Officer to discharge his statutory duty of passing the order and issuing the notice of demand in accordance with law, should be issued. [546C E] (ii)The affidavit filed on behalf of the assessee was complete and compiled with the rules made by the High Court. The affidavit spoke only of matters which were within the deponent 's own knowledge, because, the phrase "deponent 's own knowledge" is wide enough to comprehend the knowledge derived from a perusal of relevant documents. Even if the affidavit was defective in any manner, the High Court instead of dismissing the petition in limine should have given the assessee, a reasonable opportunity to file a better affidavit. [547F G, H] (iii)The High Court was also in error in holding that the decision of the Bombay High Court was given on different facts, for the facts in both cases were the same and they arose out of the same transaction. [548B C]

Appeal No. 172 of 1952. Appeal by special leave from the Judgment and Decree dated January 25, 1952, of the High Court of Judicature at Bombay (Chagla C.J.) in Revision Application No. 1119 of 1951 from the Judgment and Decree dated August 10, 1951, of the Court of Small Causes at Bombay in Appeal No. 355 of 1950, arising out of Judgment and Decree dated 227 December 18, 1950, of the Court of Small Causes in Suit No. 1055/7943 of 1948. B. H. Lulla for the appellants. C. H. Daphtary (Solicitor General for India) (B.B. Adhyarujina, with him) for the respondents Nos. 1, 2 and 3. 1952. December 10. The Judgment of the Court was delivered by DAS J. This is an appeal by special leave from the judgment and order of the High Court of Judicature at Bombay passed on January 25, 1952, in Civil Revision, Application No. 1119 of 1951. It arises out of a suit filed in the Bombay Small Causes Court under section 28 of the Bombay Rents, ' Hotel and Lodging House Rates Control Act, 1947, for ejectment from and compensation at the rate of Rs. 370 per month from November 1, 1947, for the use and occupation of the second floor flat of Sunama House situate in Cumballa Hill, Bombay. The plaintiffs are the trustees of the will of Framroze D. B. Taraporewala deceased and as such the owners of the Sunama House. The defendants are two in number, namely, the first defendant Mrs. Dinbai K. Lala to whom the said flat was let out by the plaintiffs on or about September 1, 1942, at Rs. 370 per mouth and the second defendant a limited company to whom the first defendant had sublet the said flat as from November 16, 1947, at the same rent. The defendants contested the suit on a variety of grounds, but the trial Court by its judgment dated October 18, 1950, rejected all the pleas and passed a decree directing both the defendants to vacate the flat by March 31, 1951, and awarding, only as against the first defendant, Rs. 3,317 10 8 for compensation from November 1, 1947, till July 31, 1948, and thereafter at Rs. 370 per month from August 4, 1948, till delivery of possession besides the costs of the suit. The defendants preferred an appeal under section 29 of that Apt. Besides the various pleas put forward 228 before the trial Court, the defendants, before the Appellate Bench, put forward an additional plea, watch was not pleaded in their written statements, namely, that the Small Causes Court had no jurisdiction to entertain the suit in so far as it concerned the second defendant. The Appellate Bench of the Small Causes Court dismissed the appeal with costs. The second defendant thereafter moved the High Court in revision under section 115 of the Code of Civil Procedure which was also dismissed with costs. The second defendant has now come up in appeal before us after having obtained special leave of this Court. The only contention urged before us is that the Small Causes Court had no jurisdiction to entertain this suit. The relevant portions of section 28 of the Act are as follows: "Notwithstanding anything contained in any law and notwithstanding that, by Reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be with in its jurisdiction, (a) in Greater Bombay, the Court of Small Causes, Bombay, (aa). . . . . . (b). . . . . . . shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply, and to decide any application made under this Act and to deal with ' any claim or question arising out of this Act or any of its provisions ; and no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. " It was not disputed that the provisions of Part II of the Act apply to the premises. The contention of the appellant is that the suit as against it was not a suit between a landlord and a tenant and that, in so 229 far as it claimed compensation for use and occupation, it was not a suit for recovery of rent and, therefore, section 28 had no application, and the Court of Small Causes had no jurisdiction to entertain this suit. In view of this plea it is necessary to refer to the plaint in this suit. After setting forth their title as owners of the Sunama Houses trustees under the will of Framroze D. B. Taraporewala the plaintiffs plead that the second floor flat was let out to first defendant on or about September 1, 1942, at Rs. 370 per month on terms and conditions printed on the back Of the rent bill form which were shown to and accepted by the first defendant. In paragraph 5 of the plaint is set out one of those terms, namely, that the tenant shall not assign, sublet or re let the premises without the previous written consent of the landlords. In paragraph 7 reference is made to the notice given by the plaintiffs to the first defendant on October 17, 1946, to vacate the flat at the end of November, 1946, on the ground that the same was required reasonably and bonafide for the use of two of the beneficiaries under the will. Then, after referring to an unsuccessful attempt on the part of the plaintiffs to obtain a certificate under section 9 of the Act ' the plaintiffs refer to a letter dated November 16, 1947, written by the first defendant to the plaintiff8 intimating that she had from that day sublet the flat to the second defendant. It is stated in para,graphs 12 and 13 of the plaint that on December 19, 1947, the second defendant sent a cheque for Rs. 370 for rent , for the month of November, 1947, but the plaintiffs declined to accept the same or to recognise the second defendant as a lawful occupant as subtenant or otherwise. It is also alleged that on January 23, 1948, the plaintiffs gave a notice to both ,the Codefendants to vacate the premises at the end of February 29, 1948. In paragraphs 14 and 15 the plaintiffs formulate the grounds for ejectment, ,namely, (1) that the alleged subletting by the first ,defendant to the second defendant was wrongful, illegal and in breach of the terms of the tenancy and 30 230 (2)that the plaintiffs required the premises reasonably and bona fide for the use and occupation of two of the beneficiaries. The plaintiffs prayed that both the defendants be ordered to vacate the premises and that both of them be ordered to pay to the plaintiffs compensation for the use and occupation of the premises at Rs. 370 per mouth from November 1, 1947, till delivery of vacant possession. The appellant points out that on the face of the plaint the plaintiffs declined to recognise it as a lawful occupant as subtenant or otherwise and treated it as a mere trespasser having no lawful claim to the demised flat and, therefore, the suit, in so far as it was one between the plaintiffs and the appellant (the second defendant), cannot be said to be a suit between a landlord and a tenant and that the suit in so far as it claimed compensation from him cannot be said to be a suit for recovery of rent. The last part of the contention need not detain us long, for the suit was undoubtedly one for possession of the flat and the claim for compensation was only incidental and ancillary to to the claim for possession. Jurisdiction to entertain a suit for possession will empower the Court not only to pass a decree for possession but also to give directions for payment of mesne profits until delivery of possession. Such direction for payment of mesne profits is usually an integral part of the decree for possession. The only question for consideration, therefore, is whether the suit was one between a landlord and a tenant. The respondents (the plaintiffs) do not contend that the appellant (the second defendant) is a 'tenant" as defined in section 5 (11) of the Act. The appellant, on the other hand, does not and, indeed, cannot ;deny that, as between the plaintiffs and the first defendant, the suit is one between a landlord and a tenant and as such the Small Causes Court is, under section 28 of the Act, the only Court competent to entertain the suit. Section 28 confers jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding between a landlord and a 231 tenant relating to the recovery of rent or possession of the premises but also "to deal with any claim or question arising out of this Act or any of its provisions. There is no reason to hold that ' "any claim or question" must necessarily be one between the landlord and the tenant. In any case, once there is a suit between a landlord and a tenant relating to the recovery of rent or possession of the premises the Small Causes Court acquires the jurisdiction not only to entertain that suit but also "to deal with any claim or question arising out of the Act or any of its pro visions" which may properly be raised in such a suit. The plaintiffs in this suit claimed that the purported subletting by the first defendant to the second defendant was unlawful both because it was a breach of the terms of the tenancy and also because as the statutory tenant after the determination of the contractual tenancy the first defendant was not entitled to create a sub tenancy and they questioned the validity of the second defendant 's claim to any protection under the Act. The claim or question as to the respective rights of the plaintiffs and the second defendant thus raised in the plaint certaintly arises out of the Act and the language of section 28 appears to be wide enough to cover the same. Apart from that section, under the ordinary law a decree for possession passed against a tenant in a suit for ejectment is binding on a person claiming title under or through that tenant and is executable against such person whether or not he was or was not a party to the suit. The non joinder of such a person does not render the decree any the less binding on him. It is in this sense, therefore, that he is not a necessary party to an ejectment suit against the tenant. It is, however, recognised that such a person is, nevertheless, a proper party to the suit in order that the question whether the lease has been properly determined and the landlord plaintiff is entitled to recover possession of the premises may be decided in his presence so that he may have the opportunity to see that there is no collusion between the landlord 232 and the tenant under or through whom he claims and to seek protection under the Act, if he is entitled to ' any. Such a person may be joined as a party to the suit from the beginning of the suit or at any later stage of the suit if the Court thinks fit to do so. The joinder of such a proper party cannot alter the character of the suit and does not make the suit any the less a suit between the landlord and the tenant or take it out of section 28 of the Act. To hold otherwise will be to encourage multiplicity of suits which will result in no end of inconvenience and confusion. In our view the decision and the reasoning of Chagla C.J. are substantially correct and this appeal must fail. We, therefore, dismiss the appeal with costs. Appeal dismissed. Agent for respondents Nos. 1, 2 & 3: B. A. Gagrat.

Where a lease of a flat situated within the City of Bombay contained a term that the tenant shall not assign, sub let or re let the premises, without the previous consent of the landlord and the tenant, in contravention of this term sub let the flat, and the landlord instituted a suit against him and the sub tenant in the Court of Small Causes Bombay, for possession and compensation for use and occupation of the premises, and the sub lessee contended that the Court of Small Causes had no jurisdiction so far as he was concerned inasmuch as the suit was not one between a landlord and a tenant nor, one for rent within section 28 of the Bombay Rents, Hotel and Lodging Rates Control Act, 1947: Hold, (i) that the suit was clearly one for possession and the claim for compensation wag merely an incidental claim; (ii) section 28 of the Act conferred jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding between a landlord and tenant for recovery of rent or possession, but also "to deal with any claim or question arising out of this Act or 'any of its provisions" ' and section 28 was thus wide enough to cover the question raised as between the plaintiff and the sub lessee ; (iii) in any event, though the sub lessee was not a necessary party to the suit he was a proper party, and the joinder of such a party cannot alter the nature of the suit and make it any the less a suit between a landlord and tenant or take it out of section 28.

The appellant owned a land which was held for the of miscellaneous inferior services and was classified as a Huzur Sanadi Inam land. The respondents were in possession of the land as tenarlts and were declared as purchasers under the Bombay Tenancy & Agricultural Lands Act, 1948. The Tenancy Act provides by section 32 that on 1st April, 1957, every tenant subject to certain conditions shall be deemed to have purchased from his landlord the land held by him as a tenant. The Bombay Legislature passed the Bombay Merged Territories Miscellaneous Alienations Abolition Act of 1955. The appellant contended that in view of the provisions of the Abolition Act, the relationship of landlord and tenant came to an end between the appellant and the respondents and that, therefore, respondents have no right to purchase the land. The contention of the appellant was negatived by the Agricultural Lands Tribunal which was confirmed in appeal by the special Deputy Collector and in revision by the Maharashtra Revenue Tribunal. A writ petition filed by the appellant in the High Court of Bombay was summarily dismissed Dismissing the appeal by Special Leave, ^ HELD: 1. By section 4 of the Abolition Act, all alienations in the Merged Territories were abolished with effect from the appointed date. Sections 6, 7, 8 and 9 of the Abolition Act provide for the grant of occupancy rights hl respect of the erstwhile Inam Iands. There is no provision in that Act by virtue of which the relationship of landlord and tenant between the ex lnamdar and his tenant would stand extinguished. On the contrary, section 28 Provides that nothing contained in the Act shall in any way be deemed to effect the application of any of the provisions of the Tenancy Act to any alienated land or the mutual rights and obligations of a landlord and his tenants save in so far as the said provisions are in any way inconsistent with the express provisions of the Act. The provisions of the Tenancy Act contained in section 32 are in no way inconsistent with any of the express provisions of the Abolition Act. [495 A, B C, & D] 2. Section 32(O) of the Tenancy Act applies only to tenancies created after the tiller 's day. [495E] 3. The object of the Abolition Act was the elimination of Inamdars as intermediaries and not the eviction of the tillers of the soil. [495G] 4. Section 32G(6) of the Tenancy Act shows that nothing contained in the Abolition Act can affect the tenant 's right of Purchase under section 32, even if any land is regranted to the holder under the Abolition Act on condition that it was not transferable. [496A B]

The respondents were lessees of the appellants for a period of 5 years from March 1, 1943. They were protected tenants under the Bombay Tenancy and Agricultural Lands Act, 1948. They contended that the appellants landlords could not claim eviction, because, being protected tenants their lease was extended by statute up to February 28, 1953, and as a result of the amendment of section 5 of the 1948 Act by amending Act of 1952 the period of lease was further extended upto February 28, 1963. On the question whether a protected tenant could claim the benefit of section 5 as amended by amending Act of 1952, HELD : Section 5 of the 1948 Act as amended in 1952 did not apply to protected tenancy. The principal reason was that the tenancy of a protected tenant under the 1948 Act was of unlimited time. Whereas a tenant other than a protected tenant had a security only for 10 years and it was only under section 5 as amended in 1952 that a tenant other than a protected tenant became entitled to renewal of the tenancy for a period of 10 years in succes sion as mentioned in the said section. Any such renewal, for periods of ten years, of a protected tenancy, would be destructive of the protected tenant 's unlimited security as to duration of tenancy. Secondly, if section 5 as amended in 1952 applied to protected tenants the manner of termination of tenancy mentioned in section 5, namely, by giving one year 's notice in writing before the end of each period of ten years would have been totally inconsistent with the manner of termination of tenancy of a protected tenant. The tenancy of a protected tenant could be terminated by one year 's notice on the grounds mentioned in section 34 whereas the tenancy of one other than a protected tenant, could be terminated on the grounds mentioned in section 34(1) only at the end of each period of ten years. Thirdly, if the word tenancy occurring in s.5as amended in 1952 related to protected tenancy the words "as if such atenant was a protected tenant in section 5(2) would not have been necessary". And finally, section 5 as amended in 1952 was in Ch. II which contained general provisions regarding tenancies and sections 31 and 34 of 1948 Act which related, to protected tenants occurred in Ch. III of the 1958 Act. [341 H 342 H] Trimbak Damodhar Rajpukar vs Assaram Patil, [1962] Supp. 1 S.C.R. 700, referred 'to.

The respondent landlord filed a suit for eviction against the appellant under section 13 (1) (k) of the Delhi and Ajmer Rent Control Act, 1952, on the ground that the appellant had caused damage to the premises. The trial court ordered ejectment in February, 1959, and the appellate authority dismissed an appeal in November, 1959. The Delhi Rent Control Act 1958 came into force in February, 1959. In a revision application before the High Court, the appellant invoked the provisions of the 1958 Act and relied upon section 14(1) (j) read with section 57 of the new Act. The High Court, acting under section 14(1)(j) and sub section (10) of the same section gave the appellant the alternative to pay compensation for the damages caused. The landlord then filed an application for review of the High Court order pointing out that the new Act was not applicable to the case in view of the first proviso of section 57(2). The High Court granted the review and reversed its earlier orders. In appeal to this Court it was contended on behalf of the appellant that by virtue of the first proviso of section 57(2) the High Court was bound to have regard to the provisions of the 1958 Act even in proceedings pending and governed by the 1952 Act. HELD:Dismissing the appeal, The language of the first proviso to section 57(2) clearly shows that the proviso applies to those cases only in which 'Section 54 cannot be made applicable. The area in the present case is admittedly subjected to the , which is one of the enactments mentioned in section 54. Accordingly the terms of the proviso would have no application in this case. [857 G; 859 B] The High Court had rightly held that the phrase "to which section 54 does not apply", governs the word "premises" and is not connected with the words "in any such suit or proceedings". (858A B]

In the Civil Suit No. 203 of 1955, on the original side of the Bombay High . Court, filed by the decree holder/respondent against the appellant/judgment, debtor for recovery of certain amount of money, summons were served on the judgment debtor who after filing his written statement absented himself, and did not take any further part in the proceedings of the Court resulting in a decree dated 29 6 1960 for Rs. 65,953.79. On 20 12 1961, Goa became a part of India and was made a Union Territory of India by the Constitution (Twelth Amendment) Act, 1962 passed on 27 3 1962. The decree holder applied to the Bombay High Court for transferring the decree to Goa Court for execution and by an order dated 28 8 1963 the decree was transferred to the Goa Court for execution. The execution application before the Executing Court at Panjim filed on 21 1 1964 was dismissed on 26 4 1965, holding that the decree transferred to it by the Bombay High Court was not executable. An appeal was preferred to the Additional Judicial Commissioner on 1 6 1965 and the appellant Judgment debtor filed his reply. During the pendency of the appeal, the Code of Civil Procedure was extended to Goa on 15 6 1966 by the Goa, Daman and Diu Extension of the Code of Civil Procedure and Arbitration) Act (30) of 1965 and repealing the Portuguese Code. The Additional Judicial Commissioner by its order dated 28 6 1967 held that in view of article 261(3) of the Constitution, the decree passed by the Bombay High Court could not be treated as nullity and, was therefore, executable. On appeal by certificate, the appellant/judgment debtor contended (1) that the decree passed by me Bombay High Court qua Goa Court was a nullity being a decree of a foreign court. Even if the decree was not a nullity it could be executed by a Goa court if the original decree had been approved by the Goa Court under section 50 of the Portuguese Code; (2) that`the Bombay High Court transferring the decree for execution to the Goa Court under sections 38 and 39 of the C.P.C. was without jurisdiction inasmuch as the C.P.C. had not been applied to Goa when the order of transfer was passed. (3) that as the provisions of the C.P.C. were applied to Goa after the order of the Execution Court was passed and a vested right had accrued to the appellant/judgment debtor the 'J decree continued to be inexecutable and could not be validated by article 261(3) of the Constitution. The respondent/decree holder contended (1) that inasmuch as the judgment debtor had appeared and participated in the suit for some time the decree passed by the Bombay High Court could not be said to be a nullity (ii) that as the C.P.C. was made applicable while the appeal was pending before the Additional Judicial Commissioner, Goa the decree became clearly executable and the order of transfer of the decree by the Bombay High Court stood validated. and (iii) that in view of the provisions of article 261(3) of the Constitution of India, there was no bar to the execution of the decree, which was passed by a court which was in the territory of India. 150 Dismissing the appeal, the Court, ^ HELD: (1) Where a party appears before the court, the decree of the court, even mf it is a foreign court is not a nullity. [154 D] Raj Rajendra Sardar Maloji Marsingh Rao Shitole vs Sri Shankar Saran and others; , , distinguished and held not applicable. Shaligram vs Daulat Ram, ; and Lalji Raja & Sons vs Firm Hansraj Nathuram, ; , applied. (2) The right of the judgment debtor to pay up the decree passed against him cannot be said to be a vested right, nor can the question of executability of the decree be regarded as a substantive vested right of the judgment debtor. A fortiorary, the execution proceedings being purely a matter of procedure it is well settled that any change in law which is made during the pendency of the cause would be deemed to be retrospective in operation and the Appellate Court is bound to take notice of the change in law. The Additional Judicial Commissioner was competent to take notice of the change in the law. [154 E F, 155 G] Mohanlal Chunilal Kothari vs Tribhovan Haribhai Tamboli, ; , 715 716. Gummalapura Taggina Matada Kotturswami vs Setra Veerava and others, A.T.R , 579 and Jose De Costa and another vs Bascora Sedashiva Sinai Naroornin and others, A.I.R. 1975 S.C. 1843, 1849, followed. (3) The proposition adumbrated viz., that the executability of the decree was a vested right which could not be taken away by the applicability of the Code of Civil Procedure to Goa during the pendency of the appeal is wrong, since the executability of the decree could not be considered to be a vested right [155F G] Lalji Raja and Sons. vs Firm Hansraj Nathuram ; , followed. (4) The contention that as the Code of Civil Procedure was not applicable to Goa at the time when the Bombay High Court passed the order transferring the decree to the Goa Court, the order of transfer was absolutely without jurisdiction was wrong.[156 C D] As the decree was passed by the Bombay High Court, section 38 of the Code of Civil Procedure would clearly apply and the decree passed by the Bombay High Court was not a foreign decree. It is true that at the time when the Bombay High Court passed the order of transfer, the Code of Civil Procedure had not been applied to Goa. But, that does not put the respondent/decree holder out of Court. The decree could be transferred and was valid and executable. But, because of infirmity, it could not be executed so long as the C.P.C. was not made applicable to Goa. Thus, the only bar which stood in the way of the execution of the decree was the non applicability of the provisions of the C.P.C. to Goa. This was, however, not an insurmountable bar or an obstacle and the bar or the obstacle disappeared the moment the Code of Civil Procedure was applied to Goa on 15 6 1966. [156 D F] HELD FURTHER: (5) The instant case is a fit case in which the doctrine A of eclipse would apply and the wall or the bar which separated Bombay from Goa having disappeared, there was no impediment in the execution of a decree. The decree lay dormant only so far as no bridge was built between Bombay and Goa but as soon as the bridge was constructed in the shape of the application of the provisions of the Code of Civil Procedure to Goa the decree became at once executable. [156 F G] (6) In the instant case, the decree passed by the Bombay High Court having been passed by a Court of competent jurisdiction and not being a nullity because the judgment debtor had appeared and participated in the proceedings of the Court to some extent, and the order of transfer under section 38 of the Code of Civil Procedure also not having suffered from any inherent lack of jurisdiction, the decree became enforceable and executable as soon as the Code of Civil Procedure was applied to Goa. [157 E F] 151 Bhagwan Shankar vs Rajaram Bapu Vithal, A.I.R. 1951 Bom. 125, 127, approved. (7) article 261(3) of the Constitution enjoins that a decree shall be executable in ally part of the territory of India, according to law. In the instant case, the decree was passed by the Bombay High Court after the Constitution came into force and article 261(3) would apply to the decree passed by the Bombay High Court. The Article would also apply to Goa because at the time when the application for execution was made in Goa Court, the Constitution had already been made applicable to that State also. [158 C D] (8) It is true that at the time when the Executing Court dismissed the suit of the decree holder/respondent, the Code of Civil Procedure had not been applied and the Portuguese Code continued to apply but after the application of the Code of Civil Procedure by virtue of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration) Act, 1965. the Portuguese Code which was in force in Goa was clearly repealed and the present case does not fall within any of the clauses mentioned in the saving provisions of section 4 of the Act. Thus, when the Civil Procedure Code was made applicable to Goa during the pendency of the appeal, the appellate Court, namely, the Additional Judicial Commissioner was bound to decide the matter in accordance with the law that was in force. Hence, the contention the matter in accordance with the law that was in force. Hence, the contention that the words "according to law" in article 261(3) would mean that the decree would be executable only in accordance with the law in force in the Portuguese Code is not correct. [158 B F] [Jose De Costa and another vs Bascore Sadashiva Sinai Narcornin and others, A.I.R. 1975 S.C. 1843, 1849 followed.]

Respondent No. 2, a Co operative Society allotted a flat to respondent No. l. Respondent No. 2 sought recovery of possession of the flat on the ground that the appellant was inducted into the flat without the written consent of the Society. The appellant pleaded that it was continuing in possession of the flat on the basis of the lease and licence agreement by payment of licence fee, and as such the dispute did not come within Section 91 of the Co operative Societies Act as it had become as tenant under Section 15A of the Bombay Rent Act. The Cooperative Court after hearing all the parties made an award holding that the dispute fell within the jurisdiction of the Cooperative Court and that the appellant was occupying the flat in question as a trespasser after the licence in its favour was terminated and that there was no subsisting licence to occupy the flat by the appellant on Ist February, 1973 and so Section 15A of the Bombay Rent Act was not applicable. The appellant 's appeal to the Appellate Authority and writ petition to the High Court having been dismissed, the appellant appealed by special leave to this Court. Dismissing the Appeal, HELD: 1. The appellant is an outsider who has been permitted to possess the suit premises as licencee of respondent No. 2 in contravention of the Rules, bye laws and regulations of the society. The dispute falls squarely within the provision of section 91 of the Maharashtra PG NO 29 PG NO 30 Cooperative Societies Act 1960 and the Cooperative Court has exclusive jurisdiction to entertain and decide the dispute and not the Court under the Bombay Rent Act, 1947. M/s. A.V.R. & Co. & Ors. vs Fairfield Cooperative Housing Society Ltd., [1988] Supp. 3 S.C.R.48. The decree will not be executed for a period of four months. The appellant will not transfer, assign or encumber the flat in any manner whatsoever, and hand over peaceful possession of the flat on or before the expiry of the aforesaid period. He will go on paving the occupation charges equivalent to the amount he had been paying for each month 7th of succeeding month. In default of compliance the decree shall become executable forthwith. [31E F]

In a suit for partition of the joint family properties filed by the respondent against his brother and his sons, appellants 1 to 5 respectively, the latter while admitting the relationship of the respondent and his half share to the family properties, pleaded, inter alia, that the court had no jurisdiction to divide the immoveable properties situated in Burma and in the Indian State of Pudukottai. The trial court passed a preliminary decree excluding from its operation the aforesaid immoveable properties. Against the preliminary decree appeals were preferred before the High Court by the several parties on various grounds, but in his appeal the respondent did not challenge the finding of the trial court that it had no jurisdiction to deal with foreign immoveable properties. During the pendency of the appeals, on the joint application made by the parties, the trial court made an order referring for determination by the two arbitrators named by them " all the matters in dispute in the suit and all matters and proceedings connected therewith ". In due course the arbitrators gave an award which was then filed in the trial court. As regards immoveable properties in Pudukottai the award recited that since the parties had separated and the properties in suit before the arbitrators had been actually divided by metes and bounds, the two branches shall enjoy the Pudukottai properties in equal halves; while with reference to the properties in Burma the arbitrators asked the parties to hold the documents of title half and half for safe custody and added that when the parties decided to divide the properties all the documents would have to be 27 210 brought together and a partition made according to law. The appellant challenged the validity of the award on the grounds inter alia (1) that the reference and the award dealt with immoveable properties in Burma and Pudukottai and so they were invalid, and (2) that the trial court was not competent to make the order of reference under section 21 of the Indian . Held: (1) that the reference and the award could not be challenged on the ground that they purported to deal with foreign immoveable properties because (a) at the time when the matters in dispute were referred to arbitration it was on the basis of the finding of the trial court that the court had no jurisdiction to deal with foreign immoveable properties, and (b) the award did not divide the said properties or declare their shares in them, but merely recited the fact that the parties having become divided and accepted a half share in each of the branches they would hold and enjoy the properties half and half. There is a distinction between a mere recital of a fact and something which in itself creates a title. Bageshwari Charan Singh vs Jagarnath Kuari, (1932) L.R. 53 I.A. 130, relied on. (2) that the words " suit " and " court " in section 20 of the Indian , include appellate court proceedings and appellate court, respectively. Abani Bhusan Chakravarthy and Others vs Hem Chandra Chakravarthy and Others, , disapproved. Thakur Prasad vs Baleshwar Ahir and Others, A.I.R. 1954 Pat. 106, Moradhwaj vs Bhudar Das A.I.R. 1955 All. 353 and Subramannaya Bhatta vs Devadas Nayak and Others, A.I.R. 1955 Mad. 693, approved. (3)that the word " judgment " in section 21 of the Act means a judgmentwhich finally decides all matters in controversy in the suit and does not refer to the various interlocutory orders and judgments that may be passed during the hearing of the suit. (4) that a judgment delivered by a court in a partition suit which is followed by a preliminary decree is not a final judgment in the suit and that a court after a preliminary decree has been passed has jurisdiction to make an order of reference under section 21 of the Act. Jadu Nath Roy and Others vs Paramesway Mullick and Others, (1939) L.R. 67 I.A. 11, relied on. (5) that where a preliminary decree has been drawn up and an appeal has been filed against it, both the trial court and the appellate court are possessed of the matters in dispute in part and it would be open to either court to make an order of reference in respect of all the matters in dispute between the 211 parties; that as in the present case proceedings subsequent to the preliminary decree were pending before the trial court, the latter was competent to act under section 21 of the Act.

Respondent No. 2 was a monthly tenant of 'the appellant on a condition that he would not sublet the premises of any portion thereof Under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 the appellant filed a suit against respondent No. 2 for his eviction on the ground that the tenancy had been determined on account of default in payment of rent. While the suit was pending, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 came into force. The suit was decreed and the appellant took out execution proceedings. The suit was resisted by respondent No. 1 who alleged that he had taken subtenancy from respondent No. 2. Respondent No. 1 also filed a suit impleading the appellant and respondent No. 2 and prayed for a declaration that on the termination of the tenancy of respondent No. 2, respondent No. 1 became a direct tenant of the appellant under section 13(2) of the 1950 Act and he was not liable to be evicted in the execution case. The suit was decreed bY the trial court, which was affirmed by the appellate courts. In appeal by special leave: HELD: The appeal must be dismissed. [334F] In the case of sub letting by a tenant of the first degree no consent of the landlord to sub letting is required as a condition precedent for acquisition by the sub lessee of the tenant 's rights, but in the case of sub letting by a tenant inferior to the tenant of the first degree the ,consent of the landlord and also of the tenant of the superior degree above him to the sub letting is necessary if the sub lessee is to acquire the rights of the tenant contemplated by section 13(2). [332 H] The clause "and the sub lease is binding on the landlord of such last mentioned tenant" in section 13(2) does not govern both classes of tenancies, namelY, sub tenancies created by "tenant of first degree" and also by "a tenant inferior to the tenant of the first degree" as defined in section 13(1). [333 B] Is not correct to say that the rights mentioned in s, 13(2) are conferred u.on the sub lessee only in a case where sub letting is not in violation of the agreement of lease. The right of sub tenant even in a case in which the landlord has brought a suit for eviction against the tenant under section 12(1)(c) are saved and the rights and obligations of sub tenants, would be governed by the provisions of.s. [334A] In enacting section 13 of the Act the legislature has deliberately enlarged the class of sub tenants to be protected from eviction by the landlords and the language of the section dealing with the sublessees has been deliberately changed and proper effect and interpretation must be given to the language of the new section. [334 E] 330

Appeals Nos. 237 and 238 of 1960. Appeals by special leave from the judgment and order dated July 8, 1958, of the Patna High Court, in Misc. Cases Nos. 713 and 819 of 1958. A. V. Viswanatha Sastri, section R. Banerjee and section C. Mazumdar, for the appellants. section P. Varma, for the respondents. April 19. 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. Both these appeals arise out of the same facts and involve the determination of the same question, and this judgment will govern both of them. The appellant in Civil Appeal No. 237 of 1960 is a company registered at Recklinghausen near Dusseldorf in West Germany, and carries on business in the manufacture and erection of plants and machinery. On December 19, 1953, it entered into a contract with a company called Sinclair Fertilisers and Chemicals (Private) Ltd., hereinafter referred to as the Owner, for assembling and, installing machinery, plants and 84 accessories for a coke oven battery and by products plant at Sindri in the State of Bihar for an all inclusive price of Rs. 2,31,50,000. The agreement provides that the appellants were to supply all the materials and labour required for the execution of the works, and that the performance was to be split up into two categories, the German section and the Indian section, that the German section was to consist of deliveries of materials from Germany Free on Board 'European ports, cost of technical drawings and services of German specialists, and that the Indian section was to consist of supply of Indian materials and charges for Indian labour and services to be performed in India. The German section was to be paid out of the lump sum stated above a sum of Rs. 1,31,50,000 in pounds sterling in London on account of the appellant, and the Indian section was to be paid the balance of Rs. 1,00,00,000 in Indian currency in this country, and payments were to be made in instalments related to the progress of the contract. Subsequent to the agreement, the appellant entrusted the work of the Indian section to an Indian company called the Coke Oven Construction Company (Private) Ltd., and the Owner having accepted this arrangement the said company has become the assignee of the contract in so far as it relates to the execution of the Indian section thereof. It is this company that is the appellant in Civil Appeal No. 238 of 1960. The execution of the works was completed in 1955 as provided in the agreement, and the amounts due thereunder were also paid to the two appellants. The present dispute between the parties is as to whether the appellants in the two appeals are liable to pay sales tax on the value of the materials used by them in the execution of the works under the contract. It will be convenient now to refer to the relevant provisions of the Bihar Sales Tax Act (Bihar Act No. XXX of 1947), hereinafter referred to as the Act. Section2(g)of the Act defines 'sale ' as including a transfer of property in goods involved in the execution. of contract. 'Contract ' is defined in section 2(b) as meaning any agreement for carrying out for cash or 85 valuable consideration, the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property; and 'goods ' are defined in section 2(d) as including "all materials, articles and commodities, whether or not to be used in the construction, fitting out, improvement or repair of immovable property." 'Sale price ' is defined in section 2(h)(ii) as meaning the amount payable to a dealer as valuable consideration for the carrying out of any contract, less such portion as may be prescribed, of such amount representing the usual proportion of the cost of labour to the cost of materials used in carrying out such contract. 'Dealer ' is defined in section 2(c) as meaning any person who sells or supplies any goods including goods sold or supplied in the execution of a contract. Section 2(1) defines 'turnover ' as meaning the aggregate of the amounts of sale prices received and receivable by a dealer in respect of sale or supply of goods or carrying out of any contract, effected or made during a given period. Section 4 is the charging section, and it provides that every dealer whose gross turnover during the accounting period exceeded Rs. 10,000 shall be liable to pay tax on sales which take place in Bihar, and section 5 provides that the "tax payable by a dealer under this Act shall be levied on his taxable turnover at such rate or rates and subject, to such restrictions and conditions as may be laid down from year to year by an annual Bihar Finance, Act. " The Bihar Finance Act defines 'taxable turnover ' as meaning that part of the dealer 's gross turnover on sales which have taken place in Bihar during any period subject to certain deductions. Section 9(1) of the Act provides that "No dealer shall, while being liable under section 4 to pay tax under this Act, carry on business as a dealer unless he has been registered under this Act and possesses a registration certificate". Section 13(5) of the Act under which the present proceedings have been initiated is as follows: " If upon information which has come into his possession, the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully 86 failed to apply for registration, the Commissioner shall, after giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any due, from the dealer in respect of such period and subsequent periods and the Commissioner may direct that the dealer shall pay, by way of penalty, in addition to the amount so assessed, a sum not exceeding one and half times that amount. " The gist of the above provisions is that in a contract for execution of works, the materials used therein are treated as sold by the contractor and their value is taken as the sale price liable to be taxed, and there are provisions for determining that value. Acting on these provisions, the Superintendent of Sales Tax, Dhanbad, the third respondent herein, issued on March 20, 1956, a notice to the appellant in Civil Appeal No. 237 of 1960, under section 13 of the Act, stating that on information which had come to his possession he was satisfied that the appellant was liable to pay tax for the periods 1952 53, 1953 54 and 1954 55, that it had wilfully failed to register itself under section 9 of the Act, and it was directed to show cause why penalty should not be imposed. In response to this notice, the appellant appeared before the third res pondent and represented that it had only supplied materials in execution of works contract, that there was no sale of any goods or materials by it, and that the proceedings for taxing this supply of materials as if they had been sold were illegal. Disagreeing with this contention, the third respondent directed the appellant to produce all its books, accounts and documents for purposes of assessment, and this is quite understandable, as it was his duty to levy tax in accordance with the provisions of the Act. Thereupon, the appellant filed petitions before the High Court of Patna under articles 226 and 227 of the Constitution for the issue of appropriate writs for quashing the proceedings before the third respondent and for prohibiting further proceedings under the Act as being wholly incompetent. , The grounds put forward in support of the petition were firstly that the State 87 legislature having authority to enact a law imposing a tax on the sale of goods was not competent to tax what under the law was not a sale, and that as the supply of materials in the course of the execution of works, was not in law a sale of those goods, a tax on such supply was unauthorized; and secondly that, even if there was a sale of materials, that was in the course of import from Germany, and a tax thereon was repugnant to article 286(1)(b) of the Constitution. After taking over the Indian section of the contract, the appellant in Civil Appeal No. 238 of 1960 had registered itself on May 11, 1953, as a dealer under section 9 of the Act and was submitting periodical returns as required by the certificate and the Act. But its contention at all times has been that it is not liable to pay sales tax on the transactions in question, as there were only supplies of materials in execution of works contract and that they did not amount to sale of goods. This contention was overruled by the Superintendent of Sales Tax, Dhanbad, the third respondent herein, and the appellant was assessed to sales tax successively for the years 1952 53 and 195354. While proceedings by way of appeal or revision by the appellant against these orders of assessment were pending, the third respondent issued further notices for assessment of tax for the years 1954 55 and 1955 56, and directed the appellant to produce all its books and accounts for the above period. Thereupon the appellant filed in the High Court of Patna, petitions under articles 226 and 227 of the Constitution, similar to those filed by the appellant in Civil Appeal No. 237 of 1960, for issue of appropriate writs to quash the orders of the Sales Tax authorities on the ground that the provisions of the Act, in so far as they sought to tax supply of materials in works contracts, were ultra vires. By the time the above petitions came up for hearing, the decision of this Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1), had been reported, wherein it was held that the expression "sale of goods" in Entry 48 in List II of Sch. VII to (1) ; 88 the Government of India Act, 1935, corresponding to Entry 54 in List 11 of Sch. VII to the Constitution of India had the same meaning that it has in the , that where there is a building contract, under which specified work is to be executed for a lump sum, there is no contract of sale, as such, of materials used in the works, and that accordingly, a tax on the supply of those materials treating it as a sale was ultra vires the powers of the State Legislature under Entry 48 in List 11 of Sch. VII to the Government of India Act, 1935. The learned Judges were of opinion that this decision was distinguishable because there was a term in the agreement before them that the property in the materials was to pass to the owner as soon as they were brought on the site. Dealing next with the contention of the present appellants that, as there was no agreement for the payment of price for the materials, as such, they could not be held to have been sold, the learned Judges noticed without comment the contention of the Government Pleader for the respondents, based on section 9 of the , that even though no price had been fixed for the materials, that could be determined from the account books and invoices and the course of dealings between the parties. The learned Judges then proceeded to observe: "I wish, however, to state that I do not express any concluded opinion on the question whether there is sale of materials liable to be taxed in the present case. The facts have not been fully investigated by the sales tax authorities and the petitioners have not furnished all the account books and documents and other relevant information for the purpose of deciding this question. It would be open to the sales tax authorities to investigate the facts and Upon proper construction of the contract come to. the finding whether and if so to what extent, the petitioners are liable to pay sales tax. I have no doubt that in deciding this question the sales tax authorities will keep in view the principles laid down by the Supreme Court in State of Madras versus Gannon Dunkerley and Company (Madras) Limited (9 Sales Tax Cases 353)". 89 With these observations the learned Judges dismissed the petitions. It is against this judgment that the present appeals by special leave are directed. The first question that arises for our decision is ,whether on the construction of the agreement dated December 19,1953, it could be held that there was a sale by the appellants of the materials used in the construction works, apart from the execution of those works. In The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1), after stating that building contracts could assume several forms, this Court observed as follows: "It is possible that the parties might enter into distinct and separate contracts, one for the transfer of materials for money consideration and other for the payment of remuneration for services and for work done. In such a case there are really two agreements, though there is a single instrument embodying them and the power of the State to separate the agreement of sale from the agreement to do work and render service and to impose a tax thereon, cannot be questioned and will stand untouched by the present judgment. " The point for determination, therefore, is whether on its true construction, the contract in question is a Combination of two distinct agreements, one to sell materials and the other to supply labour and services, or whether it, is only one agreement entire and indivisible for execution of the works. We will now refer to the relevant portion of the agreement dated December 19, 1953. The preamble to the agreement states that the Owner had agreed with the contractor that the latter was to set up a complete coke oven battery ready for production as well as by products plants according to specifications given therein, that the installation was to be made at a site selected by the Owner and that the contractor was to "erect and construct buildings, plants and machineries and deliver and supply accessories and articles from Germany and also locally from India and render services fully (1) ; 12 90 described in the First Schedule. . for an all inclu sive price of Rs. 2,31,50,000." Then cl. I provides that the contractor shall execute and complete the works mentioned in the Schedule, and el. 2 that the Owner shall pay to the contractor for executing the contract the sum of Rs. 2,31,50,000. Clause 4 requires the contractor to "provide all labour, materials, machinery, plant, tools, tackles and other implements for performing the works in a workman like manner. " Under cl. 11, the contractor guarantees "to accomplish full production within 22 months from the 15th September, 1952" and further undertakes to fulfill the guarantees prescribed in Schedule II to the agreement "to the satisfaction of the Owner within a period of three months from the date of accomplishment of full production. " Clause 28 provides that in case the contractor fails or is unable to complete the works within the period, the Owner might take possession of the works and of the materials, "which will become the property of the owner," and complete the works and deduct from the agreed price the expenses incurred in such completion. It is clear from the above clauses that the subject matter of the agreement was the installation of the coke oven battery and it accessories, that the sum of Rs. 2,31,50,000 was the price agreed to be paid for the execution of those works, and that there was no agreement for the sale of materials, as such, by the appellants to the Owner. In other words, the agreement in question is a contract entire and indivisible for the construction of specified works for a lump sum and not a contract of sale of materials as such. Now the contention that found favour with the learned Judges in the High Court was that there was in the contract a clause that the property in the, materials was to pass to the owner when they are brought on the site, and that, in effect, amounted to a sale of those materials by the appellant to the Owner. The clause in question is as follows: "15 (ii). All materials and plant brought by the Contractor upon the site under the German and Indian Sections in connection with the construction 91 of the Coke Oven and by products Plant shall immediately they are brought upon the site become the Owner 's property and the same shall not on any account whatsoever be removed or taken away by the Contractor or by any other person without the Owner 's prior authority in writing. Such of them as during the progress of the works will be rejected by the Owner in accordance with the terms agreed upon between the Contractor and the Owner in this respect shall on such rejection, cease to be the Owner 's property. . The Owner shall not be liable for any loss or damage which may happen to or in respect of such materials and plant by the same being lost, stolen or injured or destroyed by fire, tempest or otherwise for which the contractor will be liable. . The Owner agrees that after the Coke Oven and by products Plants have been constructed according to the agreed terms, the Contractor will be entitled to remove from the site their tools, tackles, machines, packing materials, protection roof and other materials as are surplus to the requirements of the normal operation of the Coke Oven and by products Plant provided that no claim for increased cost is made in respect of anything so removed. " In Peare Lal Hagri Singh vs The State of Punjab (1), a building contract contained the following clause: "All stores and materials brought to the Site shall become and remain the, property of Government and shall not be removed off the Site without the prior written approval of the G. E. But whenever the works are finally completed, the contractor shall at his own expense forthwith remove from the Site all surplus stores and materials originally sup plied by him and upon such removal, the same shall revest in and become the property of the Contractor." Discussing the question whether by reason of this clause there was a Contract of sale of the materials by the Contractor, distinct from the works contract, this Court held that its object was only to ensure that (1) ; 92 materials of the right sort were used in the construction and not to constitute a contract of purchase of the materials separatism. In the present case, el. 15 is even clearer that no sale of materials, as such, was intended, because it expressly provides that if they were destroyed by fire, tempest or otherwise, the loss would fall not on the owner, which must be the result if the property is taken to have been absolutely transferred to it, but on the contractor. The argument based on section 9 of the is, in our opinion, equally unsound. What that section enacts is that where there is a contract of sale of movable but the price is not mentioned, it has to be fixed either in the manner provided in the agreement or by having regard to the course of dealings between the parties, and where that is not possible, the buyer has to pay the seller a reasonable price. But the section presupposes that there is a Contract of sale of goods, and, as held in The State of Madras V. Gannon Dunkerley & Co. (Madras) Ltd. (1), such a contract requires that there must have been an agreement between the parties for the sale of the very goods in which eventually property passes. If, as held by us, cl. 15 does not embody an agreement for the sale of materials as such, there is no contract of sale with respect to them and section 9 of the can have no application. The contention, therefore, that el. 15 of the agreement could be read as amounting to a contract of sale of materials, and that the price therefor could be fixed as provided in section 9 of the by recourse to the account books of the appellants or the invoices or the course of dealings between them and the owner, must be rejected as untenable. It follows that the agreement dated December 19, 1953, being a contract for the construction of works, one and indivisible, the respondents have no right to impose a tax on the mate rials supplied in execution of that contract on the footing that such supply is a sale. It is next contended for the respondents that, whatever the merits of the contentions based on the construction of the contract, the proper forum to agitate (1) ; 93 them would be the authorities constituted under the Act to hear and decide disputes relating to assessment of tax, that it was open to the appellants to satisfy those authorities that there have been no sales such as are liable to be taxed, that indeed they were bound to pursue the remedies under the Act before they could invoke the jurisdiction of the court under article 226 and that the learned Judges of the High Court were, therefore, right in declining to entertain the present petitions. It is true that if a statute sets up a Tribunal and confides to it jurisdiction over certain matters and if a proceeding is properly taken before it in respect of such matters, the High Court will not, in the exercise of its extraordinary jurisdiction under article 226, issue a prerogative writ so as to remove the proceedings out of the hands of the Tribunal or interfere with their course before it. But it is equally well settled that, when proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the court under article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. That has been held by this court in The State of Bombay vs The United Motors (India) Ltd. (1), Himmatlal Harilal Mehta vs The State of Madhya Pradesh (2). and The Bengal Immunity Company Limited vs The State of Bihar (3). The position that emerges is that, if the proceedings before the Sales Tax Officer are founded on the provisions of the Act, which authorizes the levy of the tax on the supply of materials in construction contracts, then they must in view of the decision in The State of Madras vs Gannon Dunkerly & Co. (Madras) Lid. (4), be held to be incompetent and quashed. But if the proceedings relate to any extent to sales otherwise than under the contract, then the enquiry with respect to them must proceed (1) ; , 1077. (2) ; , 1127. (3) , 617 619, 764 766. (4) ; 94 before the authorities under the Act and the application under article 226 must fail. We must now examine the true scope of the proceedings before the Sales Tax Officer in the light of the above principles. We start with this that the Act contains provisions imposing a tax on the supply of materials under a construction contract. The appellants were indisputably engaged in construction works under the agreement dated December 19, 1953, and it is not suggested that they were carrying on any independent business as dealers in the State of Bihar. Presumably, therefore, when the sales tax authorities took proceedings against them, it was in respect of materials supplied by them under their contract dated December 19, 1953. When the appellants, in response to the notice issued by the third respondent, contested their liability to be taxed, it was on the ground that the supplies of materials under the contract were not sales. When the appellants next moved the court tinder article 226 for quashing the proceedings, they urged that the provisions of the Act, in so far as they purported to impose a tax on the materials supplied in the performance of the contract, as if they were sold, were ultra vires. If the respondents sought to tax the appellants on the footing that sales of materials were effected outside the contract, it was their duty to have put that case forward in answer to the petition. They did nothing of the kind. They did not file even a counter statement. At the time of the argument, when faced with the decision of this Court in the case of The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1), their entire case was that the agreement between the parties should be construed as involving a sale of materials, and that their value could be ascertained from the invoices, account books and the course of dealings between the parties. No contention was urged that there were sales of materials which fell outside the agreement between the appellants and the Owner. The learned Judges of the High Court in dismissing the petitions made it clear that the investigation before the sales (1) ; 95 tax authorities must be as regards their liability to pay sales tax "upon proper construction of the contract. " In this Court also, the respondents seek in their statement to maintain the liability of the appellants only on the basis of the contract, reliance being placed on cl. 15 already referred to and on section 9 of the . There is no claim that the appellants are liable on the basis of sales falling outside the agreement. It was stated before us for the appellants, and not contradicted by the respondents, that the Sindri Fertilisers and Chemicals (Private) Ltd., is a company controlled by the Government. If that is so, the respondents were at all times in possession of facts which would have shown whether the appellants entered into any transaction decors the agreement, and it is significant that at no stage have they alleged any such facts. We are satisfied that the proceedings have at all stages gone on the footing that the liability of the appellants arose under the contract and not otherwise. In that view, we must hold, following the decision in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1) that the proceedings taken by the respondents for imposing sales tax on the supplies of materials by the appellants, pursuant to the contract dated December 19, 1953, are illegal and must be quashed. In the result, the appeals are allowed and appropriate writs as prayed for by the appellants will be issued. The appellants are entitled to their costs throughout. SHAH, J. In my view these appeals must fail. The appellants claim that they are not liable to be taxed in respect of the transaction dated December 19, 1953, because it is not a sale within the meaning of the Bihar Sales Tax Act, 19 of 1947, but is a contract to assemble and install machinery, plants and accessories of a coke oven battery and other plants which under the principle of the decision of this Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1) is not subject to sales tax. The Act defines "sale" as meaning omitting parts not material any transfer of property in goods for (1) ; 96 cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of contract. "Contract" is defined as meaning any agreement for carrying out for cash or deferred payment or other valuable consideration, the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property. The expression "goods" means all kinds of movable property other than actionable claims, stocks, shares or securities and includes all materials, articles and commodities whether or not to be used in the construction, fitting out, improvement or repair of immovable property. "Sale price" means the amount payable to a dealer as valuable consideration for (1) the sale or supply of any goods, less any sum allowed as cash discount according to ordinary trade practice, but including any sum charged for anything done by the dealer in respect of the goods at the time of, or before, delivery thereof, other than the cost of freight or delivery or the cost of in stallation when such cost is separately charged; or (ii) the carrying out of any contract, less such portions as may be prescribed , of such amount, representing the usual proportion of the cost of labour to the cost of materials used in carrying out such contract. These definitions in so far as they seek to treat goods supplied or used in the execution of a works or construction contract, as sold and liable to sales tax under the Act, must, on the decision of this Court in Gannon Dunkerley 's case (1) be regarded as beyond the legislative competence of the State Legislature. In Gannon Dunkerley 's case (1), this Court held that in a building contract, the contractor constructs the building according to the specifications contained in the agreement and in consideration therefor receives payment as provided therein, and in such an agreement, there is neither a contract to sell the materials used in the construction, nor does property pass therein as moveables, and accordingly in a building contract which is one, entire and indivisible, there is no sale of goods and it is not within the competence of the Provincial Legislature under Entry 48 in List 11 in (1) ; 97 Sch. VII of the Government of India Act, 1935, to impose a tax on the supply of the materials used in such a contract treating it as a sale. Relying upon the decision of this court in Gannon Dunkerley 's case (1), the appellants contend that the amount received by them under the contract dated December 19, 1953, is not liable to be assessed to sales tax. But the question whether the contract is a pure works contract or a composite contract has never been investi gated. Undoubtedly, the formal document evidencing the contract suggests, prima facie, that it is a works contract, but in assessing liability to tax, the taxing authority is not restricted merely to the letter of the document: he has to enquire into the true nature of the transaction on all the relevant materials and to ascertain whether it partakes of the nature of the transaction which the statute renders taxable. He is, in ascertaining the true nature of the contract, also entitled to consider how the contract"was performed. The Act entrusts power to ascertain the facts on which the liability to tax depends to the taxing authorities and in that behalf, the Act is exhaustive in scope and content. The appellants in approaching the High Court by petitions under articles 226 and 227 of the Constitution sought to eliminate the entire procedure and machinery set up by the Act for ascertaining facts on which the liability to tax depends. I strongly deprecate the practice of the taxpayer being permitted to invoke the jurisdiction of the High Court to issue high prerogative writs on certain assumed facts facts the truth of which has never been subjected to scrutiny in the only manner in which the law provides they should be scrutinised. The power to assess the facts on which the decision as to the true nature of the taxable transaction depends by the statute lies solely with the taxing authorities: it does not lie with any other body or tri bunal. Invoking the jurisdiction of the High Court to adjudicate upon the facts, directly or indirectly, on which the liability to tax depends, in my view, (1) ; 13 98 amounts to inviting the High Court to exercise jurisdiction which it does not possess. This is however not to say that the jurisdiction of the High Court to issue a writ of prohibition restraining the levy of tax under a statute can never be entertained. If, for instance, the statute is beyond the legislative competence of the legislature or defies a constitutional restriction or infringes a fundamental right or the taxing authority arrogates to himself powers which he does not possess or attempts to levy tax more than once in respect of the same transaction when it is not permitted by the statute, or the taxing authority threatens to recover tax on an interpretation of a statutory provision imposing tax which is on the face of the statute erroneous, jurisdiction to issue writ of prohibition from the High Court may properly be invoked. But the High Court cannot be asked to ascertain disputed facts bearing upon the taxability of a transaction, because that jurisdiction is vested elsewhere. The contract in question is principally a works contract. The preamble states that the appellants had agreed with the Sindri Fertilizers and Chemicals Ltd. to set up a complete coke oven battery ready for production as well as by products plant on the site specified and to construct buildings, plants and machineries and deliver and supply accessories and articles and to render services fully described in the first schedule, subject to the guarantees to be fulfilled on the part of the appellants and terms and conditions mutually agreed and settled and mentioned in the second schedule for an all inclusive price in accordance with the preliminary site plan. It is manifest from the preamble that there is a contract for the construction of a coke oven battery and by products together with the plant, and also to deliver and supply accessories and articles. Undoubtedly, the price agreed to be paid is an "inclusive price" in respect of the entire contract, but that does not affect the nature of the contract to deliver and supply accessories and articles. The appellants have undertaken, subject to the terms and conditions mentioned in the contract, to execute and complete the works mentioned in the first schedule. 99 The contract in so far as it relates to the installation of plant and construction of building was a works contract and notwithstanding the definition of "sale" and "contract" in the Act, was not taxable but the contract contemplates delivery and supply by the appellant of accessories and articles. Even if this delivery and supply of accessories and articles is incidental to the works contract, it cannot be assumed without investigation that it was not a part of a transaction of sale liable to tax. The appellants asked the High Court to assume that the contract in question was a pure works contract, but the High Court declined to make that assumption. Ramaswami, C. J., in dealing with that plea observed: "I wish, however to state that I do not express any concluded opinion on the question whether there is sale of materials liable to be taxed in the present case. The facts have not been fully investigated by the sales tax authorities and the petitioners have not furnished all the account books and documents and other relevant information for the purpose of deciding this question. It would be open to the sales tax authorities to investigate the facts and upon proper construction of the contract come to the finding whether and if so to what extent, the petitioners are liable to pay sales tax," In my view, the learned Chief Justice was right in so approaching the question. The sales tax authorities have made no assessment; they merely issued a notice purporting to do so under section 13(5) of the Act and required the appellants to produce their books of account and records for ascertaining whether the transaction or any part thereof was in the nature of sale of goods. The sales tax authorities had jurisdiction to do so and by merely looking at the terms of the written contract and without any investigation as to the true nature of the transaction the High Court could not decide whether the contract performed was a pure works or construction contract or was a composite contract. It was urged that in the petition filed by the appellants before the High Court, an affidavit 100 in rejoinder challenging the correctness of the averment made in the petition that it was a pure works contract was not filed by the taxing authorities and therefore the High Court was bound to decide the dispute on the footing set up by the appellants. But the taxing authorities could not be expected without investigation to assert a state of facts which was not and could not be within their knowledge, and their statutory authority could not, because of their failure to so assert, be nullified. As I have already observed, the investigation of facts on the question of the liability to pay tax has to be made by the taxing authorities in whom that jurisdiction is vested. Before the facts on which the liability to tax depends are ascertained, the High Court could not be asked to assume that the transaction was in the nature of a pure works contract and to decide the question as to the liability of the appellants on that footing. There is no ground for assuming that the taxing authorities will not give effect to the decision of this court in Gannon Dunkerley 's case (1) after the true nature of the transaction is ascertained. In my view, the High Court was right in declining to issue the writ prayed for. By COURT: In accordance with the opinion of the majority, the appeals are allowed and it is directed that appropriate writs as prayed be issued. The appellants are also entitled to their costs throughout. Appeals allowed.

On December 19, 1953, the appellant, a company registered in West Germany, entered into a contract with a company in India to set up a complete coke oven battery ready for production as well as by products plants at Sindri in the State of Bihar, agreeing to erect and construct buildings, plants and machinery and deliver and supply accessories and articles from Germany and also locally from India, and render services fully described in the First Schedule, for an all inclusive price of Rs. 2,31,50,000. The contract provided that in case the contractor failed to complete the works within the period specified therein the Indian company might take possession of the works and the materials which would become its property and complete the works and deduct from the agreed price the expenses incurred in such completion. Under cl. 15(ii) of the contract all materials brought by the contractor upon the site shall immediately become the company 's property, but such of them as during the progress of the works. were rejected by the company ceased to be Company 's property, and after the coke oven and byproducts plants had been constructed the contractor was entitled to remove the surplus materials. The clause further provided that the company shall not be liable for any loss if the materials were destroyed by fire or otherwise. Under the Bihar Sales Tax Act, 1947, in a contract for, execution of works, the materials used 11 82 therein are treated as sold by the contractors and their value is taken as the sale price liable to be taxed. The execution of the works was completed in 1955 as provided in the agreement and on March 20, 1956, the sales tax authorities issued a notice to the appellant to the effect that it was liable to pay tax for the three years 1952 to 1955, under the provisions of the Act. The appellant represented that it had only supplied materials in execution of works contract, that there was no sale of any goods or materials by it and that the proceedings for taxing this supply of materials as if they had been sold were illegal. The sales tax authorities having proceeded to take further steps to levy the tax in spite of its representations, the appellant filed a petition before the High Court of Patna under articles 226 and 227 of the Constitution of India for quashing the proceedings. The High Court took the view that under cl. 15(ii) of the contract in question the property in the materials was to pass to the Indian company as soon as they were brought on the site, and that, in effect, amounted to a sale of those materials by the appellant to the company. The Court, however, dismissed the petition on the ground that the facts had not yet been fully investigated and that it would be open to the sales tax authorities to investigate the facts and upon the proper construction of the contract come to the finding whether and if so to what extent, the appellant was liable to pay sales tax. Held (Shah, J., dissenting): (1) that on its proper construction the agreement dated December 19, 1953, was a contract entire and indivisible for the construction of specified works for a lump sum and not a contract of sale of materials as such and that the sales tax authorities had no right to impose a tax on the materials supplied in execution of that contract on the footing that such supply was a sale. The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd., ; and Peare Lal Hari Singh vs The State of Punjab, ; , followed. (2) that where proceedings are taken before a tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the court under article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. The State of Bombay vs The United Motors (India) Ltd., ; , Himmatlal Harilal Mehta vs State of Madhya Pradesh, ; and The Bengal Immunity Company Ltd. vs State of Bihar, , relied on. In the present case, the sales tax authorities sought to maintain the liability of the appellant to pay tax in respect of materials supplied by it only under the contract dated December 19, 953, and on the basis of the legality of the provisions 83 of the Bihar Sales Tax Act, 1947. Consequently, the proceedings taken by them must be held to be illegal and must be quashed. Per Shah, J. Under the agreement dated December 19, 1953, there was a contract for the construction of a coke oven battery and by products plant, and also to deliver and supply accessories and articles. Even if this delivery and supply was incidental to the works contract, it could not be assumed without investigation that it was not a part of a transaction of sale liable to tax. The investigation of facts on the question of liability to pay tax has to be made by the taxing authorities in whom that jurisdiction is vested. Before these facts are ascertained, by merely looking at the terms of the written contract and without any investigation as to the true nature of the transaction, the High Court could not decide whether the contract performed was a pure works or construction contract or was a composite contract. The High Court was, therefore, right in declining to issue the writ prayed for.

For the years 1962 and 1963 the appellants workmen demanded additional bonus of three months ' basic wages. The tribunal, to which, the industrial dispute was referred on a consideration of the materials placed before it by both the parties, accepted the case of the respondent management, regarding certain deductions made from the profits. and held that the bonus already paid to the workmen was sufficient and that they were not entitled to any additional bonus for those two years. Dismissing the appeal to this Court. HELD : (i) The commission and royalties received from Dunlop, U.K., for the two years were rightly not included by the respondent in its profits, because, the evidence established that the circumstances under which the respondent earned the amounts showed that appellants had not made any ,contribution of work or labour for earning those amounts. It accrued to the respondent as extraneous income. [233D F] Workmen of M/s Hindustan Motors Ltd. vs M/s Hindustan Motors Ltd. & Anr, [1968] 2 S .C.R. 311, followed. Tata Oil Mills Co. Ltd. vs Its Workmen and Others ; , referred to. (ii) The contention of the appellants that no return should be allowed on the share premium of Rs. 70 lacs was rightly rejected by the tribunal. When ,a company makes a Rights issue, the Government, while giving consent, fixes a certain amount of premium to be charged for those shares. Those shares are issued only to the shareholders who ask for them and who pay the premium amount in addition to the nominal value of the share. Under the , as amended, a capital introduced by the shareholders in a company had to be shown in accordance with schedule VI as a separate item. But the share premium is not undistributed profit and cannot be distributed as dividend. It is really the share capital of the respondent and therefore, the respondent was justified in claiming 6% return on this amount. [234 A C] (iii) Mere production of a balance sheet by a company cannot be taken. as proof of a claim as to what portion of the reserves had been actually used as working capital. The utilisation of any amount from the reserves as working capital has to be proved by an employer by adducing proper evidence by way of affidavit or otherwise after giving opportunity to the workmen to contest its correctness in cross examination. The company will have to satisfactorily prove that the amount on which the return is claimed has been actually used as working capital. But in the present case the respondent has adduced oral and documentary evidence. It is not a case where merely profit and loss account alone has been filed without any further evidence being adduced by ' the respondent. Therefore there is no basis for the contention of the appellants that the respondent had not properly established its claim for return on working capital [234G H, 235 C D] 2 2 9 The Oriental Gas Company Ltd. vs Their Workmen, and Bareilly, Electricity Supply Co. Ltd. vs The Workmen & Ors. ; referred to. (iv) (a) Even if the claim of the company for rehabilitation is rejected completely, on the basis of the findings, that is, after taking into account the claims of the respondent, allowed and rejected, and the rebate in income tax that may be received by the company, the workmen would still have been paid bonus at a rate which has been accepted as correct by this Court. [237 C D] (b) On the basis of the education to be made according to the appellants in respect of rehabilitation claim, the respondent will be entitled to some amount at least in that regard. Even if that lesser amount is taken into account the available surplus will be reduced further, and, the result will be that even the amount paid as bonus already by the respondent will be more than what the workmen will be entitled to according to the decisions of this Court. [238 E H] (c) The industrial Tribunal, Calcutta, in relation to a claim for bonus for the year 1957 had elaborately discussed the matter and allowed a certain sum as rehabilitation charges. When once the tribunal had considered a similar claim and had adopted it on the basis of evidence adduced by the parties, normally, the amount so awarded towards rehabilitation should be adopted even though it will not be conclusive for subsequent years. In the present case, the rehabilitation claim was worked out only on the basis of replacement costs of the year 1958. If the appellant 's case was that the tribunal, when working out the claim for 1957 had not properly appreciated the evidence they should have elicited from the witnesses who deposed on behalf of the respondent that the figures furnished by the respondent are not correct and could not be accepted. But the appellants had not objected to the data adduced as well as the documents produced by the company with reference to its rehabilitation claim. No suggestions had been made to the various witnesses examined on behalf of the respondent that the figures on the basis of which the rehabilitation claim was made were in any way erroneous. [237G 238D] Therefore, considering the matter from any point of view, there is no question of the workmen being entitled to any additional bonus over and above what has already been paid M/s Gannon Dunkerley and Co. Ltd. vs Their Workmen, A.I.R. followed.

The appellant company was engaged in the manufacture and sale of matches in four places in India, including Bareilly, in which there were factories as well as sales offices. As an incentive to larger production of matches the company introduced in 1945 a Production Bonus Scheme which was made 561 applicable to workmen engaged in the factory in making matches as also to those working in the factory office. In 1947, it was withdrawn in its application to the sales office. The workmen of the sales office consisting of clerical staff as also salesmen and inspectors of salesmen made a claim to Production bonus painting out that there should be no discrimination between the employees in the same company. The company resisted the claim on the grounds : (1) that the sales office was entirely independent of the factory; and (2) that the salesmen, retail salesmen and inspectors employed by the sales office were not workmen within the meaning of the U.P. The facts showed : (1) that there was interdependence of the two activities viz., manufacture of matches in the factory and their sale by the sales office, inasmuch as (a) the sales office could not exist without the factory, (b) the factory itself could not conveniently function without a sales organization. and (c) the factory arranged its volume of production in accordance with the programme made from time to time by the sales manager; (2) that the sales office and the factory had the same banking account, though separate cheque books were maintained and operated upon ; (3) that the financial forecasts that were made for the Bareilly branch from time to time made no distinction between the disbursements in the sales office and the factory ; (4) the rules and practice in connection with the recruitment, control and discipline of man power, as also documents, including letters of appointment and standing orders and the muster rolls were kept distinct and separate between the factory and the sales office; and (5) the sales office paid rent to the factory fir the area occupied by it by means of book adjustments. The evideuce also showed that 75% of the time of the workmen in the sales office was devoted to writing work. Held that, on the facts, there was functional integrality and inter dependence or community of financial control and management of the sales office and the factory in the appellant company and that the two must be considered part of one and the same unit of industrial production. Held further, that the inspectors, salesmen and retail salesmen were workmen as defined in the U.P.

The appellant manufactures steel tubes in the outskirts of Ahmedabad city. It started its business in 1960, went into production since 1964 and waggled from infancy to adulthood with smiling profits and growling workers, punctuated by smouldering demands, strikes and settlement until there brewed a confrontation culminating in a head on collision following upon certain unhappy happenings. A total strike ensued whose chain reaction was a whole sale termination of all employees followed by fresh recruitment of workmen defacto breakdown of the strike and dispute over restoration of the removed workmen. As per the last settlement between the management and the workmen of 4th August, 1972, it was not open to the workmen to resort to a strike till the expiry of a period of five years; nor could the management declare a lock out till then. Any dispute arising between the parties, according to the terms arrived at were to be sorted out through negotiation or, failing that by recourse to arbitration. The matter was therefore, referred to an arbitrator and the arbitrator by his award held the action cf the management warranted. The respondent challenged the decision of the arbitrator under Article 226/227 of the Constitution and the High Court of Gujarat reversed the award and substantially directed reinstatement. Hence the appeals both by the Management and the workmen. Dismissing the appeals and modifying the awards substantially, the Court ^ HELD: (By Majority) Per Iyer J. On behalf of D. A. Desai J. and himself. (i) The basic assumption is that the strike was not only illegal but also unjustified. [210 H] 147 (ii) The management did punish its 853 workmen when it discharged them for reasons of misconduct set out in separate but integrated proceedings; even though with legal finesse, the formal order was phrased in harmless verbalism. [211 A] (iii) The action taken under the general law or the standing orders, was illegal in the absence of individualised charge sheets, proper hearing and personalise punishment if found guilty. None of these steps having been taken, the discharge orders were still born. But, the management could, as in this case it did, offer to make out the delinquency of the employees and the arbitrator had, in such cases, the full jurisdiction to adjudge de novo both guilt and punishment. [211 B C] (iv) Section 11A of the does take in an arbitrator too, and in this case, the arbitral reference, apart from section 11A is plenary in scope. [211 C D] (v) Article 226 of the Constitution, however restrictive in practice Is a power wide enough in all conscience, to be a friend in need when the summons comes in a crisis from a victim of injustice; and more importantly this extra ordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand. What the Tribunal may in its discretion do the High Court too under Article 226, can, if facts compel so. [211 D E] (vi) The Award, in the instant case, suffers from a fundamental flaw that it equates an illegal and unjustified strike with brozen misconduct by every workman without so much as identification of the charge against each, after adverting to the gravamen of his misconduct meriting dismissal. Passive participation in a strike which is both illegal and unjustified does not ipso facto invite dismissal or punitive discharge. There must be active individual excess such as master minding the unjustified aspects of the strike, e.g., violence, sabotage or other reprehensible role. Absent such gravamen in the accusation, the extreme economic penalty of discharge is wrong. An indicator of the absence of such grievous guilt is that the management, after stating in strong terms all the sins of workmen, took back over 400 of them as they trickled back slowly and beyond the time set, with continuity of service, suggestive of the dubiety of the inflated accusations and awareness of the minor role of the mass of workmen in the lingering strike. Furthermore, even though all sanctions short of punitive discharge may be employed by a Management, low wages and high cost of living, dismissal of several hundreds with disastrous impact on numerous families is of such sensitive social concern that, save in exceptional situations, the law will inhibit such a lethal step for the peace of the industry, the welfare of the workmen and the broader justice that transcends transcient disputes. The human dimensions have decisional relevance. The discharge orders though approved by the Arbitrator are invalid. [211 E H, 212 A B] HELD FURTHER: 1. In a society, capital shall be the brother and keeper of labour and cannot disown this obligation of a partner in management, especially because social justice and Articles 43 and 43A are constitutional mandates. The policy directions in Articles 39, 41, 42, 43 and 43A speak af the right to an adequate means of livelihood, the right to work, humane conditions of work, living wages ensuring a decent standard of life and enjoyment of leisure and participation of workers in management of industries. De hors these 148 mandates, law will fail functionally. Suck is the value vision of Indian Industrial Jurisprudence. [155 B, G H, 156 A] 2. Jural resolution of labour disputes must be sought in the law life complex beyond the factual blinkers of decided cases, beneath the lexical littleness of statutory tests, in the economic basics of industrial justice which must enliven the consciousness of the Court and the corpus juris. [154 F G] The golden rule for the judicial resolution of an industrial dispute is first to persuade fighting parties, by judicious suggestions, into the peace making zone, disentangle the differences, narrow the mistrust gap and convert them through consensual steps, into negotiated justice. Law is not the last word in justice, especially social justice. Moreover in an hierarchical system, the little man lives in the short run but most litigation lives in the long run. So it is that negotiation first and adjudication next, is a welcome formula for the Bench and the Bar, the Management and Union. [157 C E] The anatomy of a dismissal order is not a mystery, once it is agreed that substance, not semblance, governs the decision. Legal criteria are not so slippery that verbal manipulations may outwit the Court. The fact is the index of the mind and an order fair on its face may be taken at its face value. But there is more to it than that, because sometimes words are designed to conceal deeds by linguistic engineering. The form of the order of the language in which it is couched is not conclusive. The Court will lift the veil to see the the nature of the order. [171 G H. 172 A] If two factors motive and foundation of the order co exist, an interference of punishment is reasonable though not inevitable. If the severance of service is effected the first condition is fulfilled and if the foundation or causa causans of such severance is the servant 's misconduct, the second is fulfilled. If the basis or foundation for the order of termination is clearly not turpitudes or stigmatic or rooted in misconduct or visited with evil pecuniary effects, then the inference of dismissal stands negated and vice versa. These canons run right through the disciplinary branch of master and servant jurisprudence, both under Article 311 and in other cases including workmen under managements. The law cannot be stultified by verbal haberdashery because the Court will lift the mask and discover the true face. [172 C E] Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If thus scrutinised the; order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. A termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, it is a dismissal even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given 149 an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination are given and non injurious terminology is used. [173 E H, 174 A] On the contrary, even if there is suspicion of misconduct, the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. There it is not n dismissal, but termination simpliciter, if no injurious record of reasons or punitive pecuniary cut back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge, What is decisive is the plain reason for the discharge, not the strategy of a non enquiry or clever avoidance of stigmatising epithets. If the basis is not misconduct, the order is saved. [174 B D] Management of Murugan Mills vs Industrial Tribunal ; ; Chartered Bank vs Employees ' Union ; ; Western India Automobile Association vs Industrial Tribunal, Bombay ; Assam Oil Co. vs Workmen; , ; Tata Oil Mills Co. vs Workmen, ; @ 130; Tata Engineering & Locomotive Co. Ltd. vs S.C. Prasad & Anr. ; L. Michael and Anr. vs M/s. Johnson Pumps India Ltd., ; Workmen of Sudder Office, Cinnamore vs Management, , Municipal Corporation of Greater Bombay vs P.S. Malvankar; , ; referred to. Every wrong order cannot be righted merely because it was wrong. It can be quashed only if it is vitiated by the fundamental flaws of gross miscarriage of justice, absence of legal evidence, perverse misreading of facts, serious errors of law on the face of the order, jurisdictional failure and the like. [182 P G] While the remedy under article 226 is extraordinary and is of Anglosaxon vintage, it is not a carbon copy of English processes. Article 226 is a sparing surgery but the lancet operates where injustice suppurates. While traditional restraints like availability of alternative remedy hold back the Court, and judicial power should not ordinarily rush in where the other two branches fear to tread. judicial daring is not daunted where glaring injustice demands even affirmative action. The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the Court 's province and the remedy is appropriate to the judicial process. There is a native hue about article 226, without being anglophilic or anglophobic in attitude. Viewed from this jurisprudential perspective the Court should be cautious both in not over stepping as if Article 226 were as large as an appeal and not failing to intervene where a grave error has crept in. And an appellate power interferes not when the order appealed is not right but only when it is dearly wrong. The difference is real, though fine. [182 G H, 183 A B] The principle of law is that the jurisdiction of the High Court under Article 226 of the Constitution is limited to holding the judicial or quasi judicial powers within the leading sings of legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under the Act. So long as the hierarchy of officers and appellate authorities created by the statute function within their ambit the manner in which they do so can be no ground for interference. The power of judicial supervision of the High Court under Article 227 of tho Constitution (as it then stood) is not 150 greater than those under Article 226 and it must be limited to seeing that a tribunal functions within the limits of its authority. The writ power is large, given illegality and injustice even if its use is severely disciplinary. The amended Article 226 would enable the High Court to interfere with an Award of the industrial adjudicator if that is based on a complete misconception of law or it is based on no evidence, or that no reasonable man would come to the conclusion to which the Arbitrator has arrived. [15 E G 1 86 D E] Navinchandra Shanker Chand Shah vs Manager, Ahmedabad Cooperative Department Stores Ltd., @ 140; approved. Rohtas Industries & Anr. vs Rohtas Industries Staff Union and Ors. ; followed. Nagendranath Bata and Anr. vs The Commissioner of Hills Divisions and Appeals, Assam & Ors. , ; ; Engineering Mazdoor Sabha vs Hind Cycle Lrd. [1963] Suppl. 1 SCR 625; State of A.P. vs Sreeeama Rao, ; @ 33; P. H. Kalyani vs M/s Air France, Calcutta, ; ; referred to. "Tribunal" simpliciter has a sweeping signification and does not exclude Arbitrator. A tribunal literally means a seat of justice, may be, a commission, a Court or other adjudicatory organ created by the State. All these are tribunal and naturally the import of the word, in Section 2(r) of the , embraces an arbitration tribunal. [188 E F H 189 A] Dawking vs Rokely, L.R. 8 Q.B. 255; quoted with approval. An Arbitrator has all the powers under the terms of reference, to which both sides are party, confer. In the instant case, the Arbitrator had the authority to investigate into the propriety of the discharge and the veracity of the mis conduct. Even if section 11A of the is not applicable, an Arbitrator under Section 10A is bound to act in the spirit of the legislation under which he is to function. A commercial Arbitrator who derives his jurisdiction from the terms of reference will by necessary implication be bound to decide according to law and when one says "according to law", it only means existing law and the law laid down by the Supreme Court being the law of land, an Arbitrator under section 10A will have to decide keeping in view the spirit of section 11A. [196 B D] Union of India vs Bungo Steel Furniture (P) Ltd. ; ; referred to. Per Koshal J. (Contra) 1. The orders of discharge could not be regarded as orders of their dismissal and were on the other hand, orders of discharge simpliciter properly passed under Model Standing order 23. [235 C D] (a) Clauses (3) and (4) of M.S.O. 25 speak of an inquiry only in the case of an order falling under sub clause (g) of clause (1) of that M.S.O. The only sub clause of clause (1) of M.S.O. 25 to which the provisions of clauses (3) and (4) of that M.S.O. would be attracted is sub clause (g) and if an order of discharge falls under M.S.O. 23, an inquiry under clauses (3) and 151 (4) of M.S.O. 25 would not be a pre requisite thereto even though such an a older is mentioned in sub clause (f) clause (1) of that M.S.O. [222 H, 223 A] (b) Under M.S.O.s. 23 and 25, the Management has the powers to effect termination of the services of an employee by having recourse to either or them. In action taken under M.S.O. 23, no element of punishment is involved and the discharge is a discharge simpliciter; and that is why no opportunity to the concerned employee to show cause against the termination is provided for. Dismissal, however, which an employer may order is in its very nature, a punishment, the infliction of which therefore has been made subject to the result of an inquiry (having the semblance of a trial in a criminal proceeding). Exercise of each of the two powers has the effect of the termination of the services of the concerned employee but must be regarded, because of the manner in which each has been dealt with by the M.S.O. as separate and distinct from the other. [223 C E] (c) To contend that once it was proved that the order of discharge of a workman was passed by reason of a misconduct attributed to him by the management, the order cannot but amount to an order of dismissal is wrong for two reasons. For one thing, clause (1) of M.S.O. 25 specifically states in sub clauses (f) that a workman guilty of misconduct may be discharged under M.S.O. 23. This clearly means that when the employer is satisfied that a workman has been guilty of misconduct he may [apart from visiting the workman with any of the punishments specified in sub clauses (a), (b), (c), (d) and (e) of clause (1) of M.S.O. 25] either pass against him an order of discharge for which no inquiry precedent as, provided for in clauses (3) and (4) of M.S.O. 25 would be necessary, or may dismiss him after holding such an inquiry which of the two kinds of order, the employer shall pass is left entirely to his discretion. [223 E H] It is true that the employer cannot pass a real order of dismissal in the garb of one of discharge. But that only means that if the order of termination of services of an employee is in reality intended to push an employee and not merely to get rid of him because he is considered useless, inconvenient or troublesome, the order even though specified to be an order of dismissal covered by sub clause (g) of clause (1) of M.S.O. 25. On the other hand if no such intention is made out the order would remain one of discharge simpliciter even though it has been passed for the sole reason that a misconduct is imputed to the employee. That is how M.S.Os. 23 and 25 have to be interpreted. M.S.O. 25 specifically gives to the employer the power to get rid of "a workman guilty of misconduct ' by passing an order of his discharge under M.S.O. 23. [224 A D] Secondly, the reasons for the termination of service of a permanent workman under M.S.O. 23 have to be recorded in writing and communicated to him if he so desires, under clause (4 A) thereof. Such reasons must obviously consist of an opinion derogatory to the workman in relation to the performance of his duties, and whether such reasons consist of negligence, work shirking or of serious overt acts like theft or embezzlement, they would in and case amount to misconduct for which he may be punished under M.S.O. 25. There being no case in which such reasons would not amount to misconduct, the result is that M.S.O. 23 would be render otiose if termination of service thereunder for misconduct could be regarded as a dismissal and such a result strikes at the very root of accepted canons of interpretation. If it was open to the Court to. "lift 152 the veil" and to hold an order of discharge to amount to dismissal merely because the motive behind it was a misconduct attributed to the employee, the services of an employee could be terminated without holding against him an inquiry such as is contemplated by clauses (3) and (4) of M.S.O. 25. [224 D G] Bombay Corporation vs Malvankar ; ; applied. Merely because it is the reason which weighed with the employer in effective the termination of services would not male the order of such termination as one founded on misconduct, for such a proposition would run counter to the plain meaning of clause (1) of M.S.O. 25. For an order to be "founded" an misconduct, it must be intended to have been passed by way of punishment, that is, it must be intended to chastise, or cause pain in body or mind or harm or loss in reputation or money to the concerned worker. If such an intention cannot be spelled out of the prevailing circumstances, the order of discharge or the reasons for which it was ostensibly passed, it cannot be regarded as an order of dismissal. Such would be the case when the employer orders discharge or the interests of the factory or of the general body of workers. [226 A C] Chartered Bank, Bombay vs The Chartered Bank Employees Union, ; ; The Tata Oil Mills Co. Ltd. [1964] 2 SCR p. 123; The Tara Engineering and Locomotives Co. Ltd. vs S.C. Prasad, ; Workmen of Sudder Office, Cinnamore vs Management, followed. The real criterion which formed the touchstone of a test to determine whether an order of termination of services is an order of discharge simpliciter or amounts to dismissal is the real nature of the order, that is, the intention with which it was passed. If the intention was to punish, that is to chastise, the order may be regarded as an order of dismissal; and for judging the intention, the question of mala fides (which is the same thing as colourable exercise of power) becomes all important. If no mala fides can be attributed to the management, the order of discharge must be regarded as one having been passed under M.S.O. 23 even though the reason for its passage is serious misconduct. (2) The arbitrator could not exercise tho power conferred on a Tribunal under section 11A of the 1947 Act and could not therefore interfere with the punishment awarded by the Management to the workmen (even if the discharge could be regarded a punishment). [235 D E] Throughout the I.D. Act, while 'arbitrator ' would include an umpire, a Tribunal would not include an arbitrator but would mean only an Industrial Tribunal constituted under the Act unless the context makes it necessary to give the word a different connotation. In sub section (1) of section 11, the word 'Tribunal ' has been used in accordance with the definition appearing in clause (r) section 2 because an arbitrator is separately mentioned in that sub section. In sub sections (2) and (3) of that section a Board, a Labour Court, a Tribunal and a National Tribunal have been invested with certain powers. A Tribunal as contemplated by sub sections (2) and (3) then, would not include an arbitrator. [233 A B] It is a well settled canon of interpretation of statutes that the language used by the Legislature must be regarded as the only source of its intention unless such language is ambiguous, in which situation the Preamble to the Act, the statement of objects of and Reasons for bringing it on the statute book and 153 the purpose underlying the legislation may be taken into consideration for ascertaining such intention. That the purpose of the legislation is to fulfil a socio economic need, or the express object underlying it does not come into the picture till an ambiguity is detected in the language and the Court must steer clear of the temptation to mould the written word according to its own concept of what should have been enacted. It is thus not permissible for the Supreme Court to take the statements of objects and Reasons or the purpose underlying the enactment into consideration, while interpreting section 11A of the I.D. Act. [231 F G, 234 Cl 3. The High Court exceeded the limits of its jurisdiction in interfering with the said punishment, in the instant case, purporting to act in the exercise of its powers under Article 227 of the Constitution of India. [235 E F] The High Court, while discharging its functions as envisaged by that Article, does not sit as a Court of Appeal over the Award of the Arbitrator but exercises limited jurisdiction which extends only to seeing that the arbitrator has functioned within the scope of his legal authority. In this view of the matter it was not open to the High Court to revise the punishment (if the discharge is regarded as such) meted out by the Management to the delinquent workmen and left intact by the arbitrator whose authority in doing so has not been shown to have been exercised beyond the limits of his jurisdiction. [234 G E, 235 A C] Nagendra Nath Bora and Anr. vs The Commissioner of Hills Division and Appeals, Assam and Ors. , ; ; P. H. Kalyani vs M/s Air France, Calcutta, ; , of A.P. vs Sree Rama Rao, ; ; Navinchandra Shakerchand Shakerchand Shah vs Manager Ahmedabad Cooperative Stores Ltd, ; referred to.

The appellant in both the appeals carried on the busi ness of a carrier and transported goods on hire. It had its principal office at Bombay and branch offices at various other places. The respondent in the first appeal a dealer in cardamom entrusted a consignment of cardamom to the appellant at its branch office at Bodinayakanur in Tamilnadu to be delivered at Delhi. After the goods had been transported by the appel lant and kept in a godown at Delhi the same got destroyed and damaged in a fire as a result whereof the consignee refused to take delivery. The respondent instituted a suit in the sub court within whose territorial jurisdiction the branch office of the appellant was situated for damages alleging that the fire was due to the negligence and care lessness on the part of the staff of the appellant. Respondent No. 4 in the second appeal entrusted certain packets of pesticides insured with the second respondent Insurance Company to the appellant at its branch office at Madras for being carried to Delhi. The respondent alleged that the goods were delivered at New Delhi in a damaged condition resulting in loss and a suit was instituted for recovery of the loss in the City Civil Court at Madras. In both the aforesaid civil suits the appellant pleaded in defence that in the contract entered into between them, the parties had agreed that jurisdiction to decide any dispute between them would be only with the courts at Bom bay, and consequently the courts in Madras ' where the two suits had been instituted had no jurisdiction. This plea was repelled by the Trial Court in each of the suits. The aforesaid orders were challenged by the appellant in the High 392 Court under Section 115 C.P.C. and having failed, the appel lant appealed to this Court. In the appeal, it was contended on behalf of the appel lant that since the courts at two places namely Madras and Bombay had jurisdiction in the matter, the jurisdiction of the courts in Madras was ousted by the clause in the con tract whereunder the parties had agreed that jurisdiction to decide any dispute under the contract would be only in the courts at Bombay. On the question: whether in view of the relevant clause in the contract between the parties the courts at Bombay alone had jurisdiction and the jurisdiction of the courts at Madras where the two suits were instituted was barred. Dismissing the appeals, this Court, HELD: 1. The courts at Bombay in these two cases did not at all have jurisdiction and consequently the agreement between the parties conferring exclusive jurisdiction on courts at Bombay is of no avail. [401D] 2. Clauses (a) and (b) of Section 20 refer to a court within the local limits of whose jurisdiction the defendant "carries on business". Clause (c) on the other hand refers to a court within the local limits of whose jurisdiction the cause of action wholly or in part arises. [397H 398A] 3. Section 20 of the Code before its amendment by the Code of Civil Procedure (Amendment) Act, 1976 had two Expla nations being Explanation I and II. By the Amendment Act Explanation I was omitted and Explanation II was renumbered as the present Explanation. [398G] 4. The Explanation is in two parts, one before the word "or" occurring between the wOrds "office in India" and the words "in respect of" and the other thereafter. The Explana tion applies to a defendant which is a corporation which term, would include even a company such as the appellant in the instant case. The first part of the Explanation applies only to such a corporation which has its sole or principal office at a particular place. In that event the courts within whose jurisdiction the sole or principal office of the defendant is situate will also have jurisdiction inas much as even if the defendant may not be actually carrying on business at that place, it will "be deemed to carry on business" at that place because of the fiction created by the Explanation. [398C F] 393 5. The latter part of the Explanation takes care of a case where the defendant does not have a sole office but has a principal office at one place and has also a subordinate office at another place. The words "at such place" occurring at the end of the Explanation and the word "or" referred to above which is disjunctive clearly suggest that if the case fails within the latter part of the Explanation it is not the court within whose jurisdiction the principal office of the defendant is situate but the court within whose juris diction it has a subordinate office which alone shall have jurisdiction "in respect of any cause of action arising at any place where it has also a subordinate office". [398E F] 6. The Explanation is really an explanation to clause (a). It is in the nature of a clarification on the scope of clause (a) viz. as to where the corporation can be said to carry on business. This, it is clarified, will be the place where the principal office is situated (whether or not any business actually is carried on there) or the place where a business is carried on giving rise to a cause of action (even though the principal office of the corporation is not located there) so long as there is a subordinate office of the corporation situated at such place. The linking together of the place where the cause of action arises with the place where a subordinate office is located clearly shows that the intention of the legislature was that, in the case of a corporation, for the purposes of clause (a), the location of the subordinate office, within the local limits of which a cause of action arises, is to be the relevant place for the filing of a suit and not the principal place of business. [399G 400B] 7. If the intention was that the location of the sole or principal office as well as the location of the subordinate office (within the limits of which a cause of action arises) are to be deemed to be places where the corporation is deemed to be carrying or business, the disjunctive "or" will not he there. Instead, the second part of the explanation would have read "and, in respect of any cause of action arising at any place where it has a subordinate office, also at such place ' '. [400C] 8. The clear intendment of the Explanation, however, is that, where the corporation has a subordinate office in the place where the cause of action arises, it cannot be heard to say that it cannot be sued there because it does not carry on business at that place. It would be a great hard ship if, in spite of the corporation having a subordinate office at the place where the cause of action arises (with which in all probability the plaintiff has had dealings), such plaintiff is to be compelled to travel to the place where the corporation has its principal place. That place should be convenient to the plaintiff; and since the corpo ration 394 has an office at such place, it will also be under no disad vantage. Thus the Explanation provides an alternative locus for the corporation 's place of business, not an additional one. [400F G] 9. In the instant two cases since clause (c) is not attract ed to confer jurisdiction on courts at Bombay and the appel lant has admittedly its subordinate offices at the respec tive places where the goods in these two cases were deliv ered to it for purposes of transport, the courts at Bombay had no jurisdiction at all to entertain the suits filed by the respondents and the parties could not confer jurisdic tion on the courts at Bombay by an agreement. Accordingly, no exception can be taken to the findings in this behalf recorded by the trial court and the High Court. [401C D] Hakam Singh vs M/s. Gammon (India) Ltd., [1971] 3 SCR page 314, referred to.

The appellant assessee manufactures scientific instruments and apparatus like Dumpy levellers, levelling staves prismatic compass, etc. It entered into two separate collaboration agreements, one dated 15th March, 1961 and the other dated 31st March 1961 with M/s. Metrimpex Hungarian Trading Company, Budapest for undertaking the manufacture of microscopes and theodolites, under which the said collaborator, in consideration of payment of Rs.80,000 each (Rs. 1,60,000 under both the agreements together), agreed to supply to the assessee all the technical know how required for the manufacture of these instruments. To enable the assessee to manufacture these instruments in India, the foreign collaborator inter alia agreed to render documentation service" by supplying to the assessee an uptodate and correct complete set each of the five types of documents (such as manufacturing drawings, processing documents, designs, charts, plans and other literature more specifically detailed in clause 3 of the agreements) and to render training and imparting of knowledge of the know how technique of manufacturing these instruments. Pursuant to the agreements the appellant assessee made full Payment of Rs. 1,60,000 to the foreign collaborator and the latter rendered "documentation service" by supplying complete sets of all the documents including designs, drawings charts, plans and other literature as per clause 3. The sum of Rs. 1,60,000 was debited by the assessee under the head "Library". For the assessment year 1966 67 for which relevant accounting year ended on 30th September, 1965 the assessee claimed a sum of RS. 12,000 by way of deprecation on "Library". The Income Tax 702 Officer held that the sum of Rs. 1,60,000 did not represent the value of books purchased by the assessee represented the price paid for acquiring the technical know how which amounted to capital expenditure but since no tangible or depreciable asset was brought into existence no depreciation allowance could be claimed. On appeal preferred by the assessee, however, the Appellate Assistant Commissioner held that what the assessee had done was to make an outright purchase of certain specimen drawings, charts, plans, etc. On special papers, that these documents when collected together constituted a book on which depreciation as in the case of plant and machinery, would, be at the appropriate rate be allowable and he directed the Income Tax Officer to allow the depreciation claimed. In the further appeal preferred by the department the Tribunal took the view that clauses 2,3,4,5 and 10 of the agreements did not lend support to the stand taken by the assessee that payments (Rs. 80,000 each) had been made mainly for the supply of designs, drawings, charts, etc., that the services to be rendered by the foreign collaborator covered a wide field and that the supply of designs, drawings, charts, etc. was incidental and only in furtherance of other services which the foreign collaborator was expected to render. And that since the supply of designs, drawings, charts, etc. was only incidental and the payment of Rs. 1,60,000 could not entirely be held to represent the purchase price of those documents it was unnecessary for them to go into the question whether the said documents fell within the meaning of the expression 'books ' and whether depreciation was, therefore, admissible thereon. The Tribunal however, held that the agreements showed that some of the services which the foreign collaborator was required to render to the assessee were on revenue account (as for example, the provision which required the foreign collaborator to depute their experts to correct any flaws or irregularities that might be encountered in the course of the production) and that therefore the payment of Rs. 1,60,000 was partly on capital account and partly on revenue account and that even if it were to hold that the part of the payment was allowable as revenue expenditure the allowance could not exceed Rs. 12,000, being the deduction allowed by the Appellate Assistant Commissioner. Thus, the Tribunal confirmed the deduction of Rs. 12,000 not as depreciation allowance but as revenue expenditure and in this manner it confirmed the order of the Appellate Assistant Commissioner. Both the assessee and the revenue sought a reference to the High Court. On a consideration h of the terms and conditions of the two collaboration agreements the High Court took the view that the payment of Rs.1,60,000 did 703 not mainly represent the purchase price of the design , drawings, charts, etc. that the rendering of "documentation service" was incidental, that no part of the expenditure was on revenue account but the whole of lt was of a capital nature bringing into existence an asset of enduring benefit to the assessee, but what was brought into existence was a non depreciable asset and, therefore, the assessee was not entitled to any relief in the case. Following the aforesaid decision rendered by the High Court in relation to the assessment year 1966 67 the assessee denied similar relief claimed by it in the two subsequent assessment years, 1968 69 and 1969 70. Hence the appeals by special leave of the Court. Allowing the appeal, the Court, ^ HELD : 1.1 The expenditure incurred by the appellant as and by way of purchase price of drawings, designs, charts, plans, processing data and other literature etc. comprised in "documentation service" specified in clause 3 of the Agreements, was of a capital nature as a result whereof a capital asset of technical know how was acquired by the assessee. [713 B C] 1.2 From the relevant terms of the two agreements, it is clear, that the "documentation service" undertaken to be rendered by the foreign collaborator to the assessee was not incidental and that the payment of Rs. 1,60,000 could only be regarded as being mainly for and by way of purchase price of the drawings, designs, charts, plans and all the documents comprised in "documentation service" specified in clause 3 of the agreement . [710 B C] 1.3 Reading Clauses 3 and 6(a) of the agreements together, it is clear, that the rendition of documentation services specified in Clause 3 was really the main service to be rendered by the foreign collaborator to the assessee and the Clause 6 (a) categorically states that the lumpsum payment of Rs. 80,000 (Rs. 1,60,000 under the two agreements) was for rendition of such service. Clause 5(c) makes the position clear where it has been stated that the purchaser is to pay the value of the full documentation in question, namely Rs. 80,000 according to the stipulation of the present agreement. " In fact the other service mentioned in Clauses 4 and 5 appear to be incidental as some of these were undertaken to be rendered as and when desired by the assessee and for which the assessee had agreed to bear and pay the expenses separately. But the tenor of the agreements clearly shows that the various documents such as drawings, designs. 704 charts, plans, processing data and other literature included in documentation service, the supply whereof was undertaken by the foreign collaborator, more or less formed the tools by using which the business of manufacturing the instruments was to be done by the assessee and for acquiring such technical know how through these documents lumpsum payment was made. [712 F H; 713 A C] 2.1 Plant would include any article or object fixed or movable, live or dead, used by businessman for carrying on his business and it is not necessarily confined to an apparatus which is used for mechanical operations or processes or is employed in mechanical or industrial business. In order to qualify as plant the article must have some degree or durability. [714 B C] Yarmouth vs France, ; Hinton vs Maden & Ireland Ltd., ; Jarrold vs John Good and Sons Limited, C.A.; Inland Revenue Commissioners vs Barclay, Curle & Co. Ltd., quoted with approval. Commissioner of Income Tax, Andhra Pradesh vs Taj Mahal Hotel, referred to. 2.2 An Article to be treated as a "Plant" within the meaning of section 43(3) of the Act must answer in the affirmative the functional test, namely does article fulfil the function of a plant in the assessee 's trading activity? Ant is it a tool of his trade with which he carries on his business? [714 G H; 715 A] 2.3 Applying the functional test to the drawings, designs, charts, plans, processing data and other literature comprised in the "documentation service" as specified in clause 3 of the Agreement, these documents as constituting a book would fall within the definition of "Plant". These documents regarded collectively will have to be treated also as a "book". The purpose of rendering such documentation service by supplying these documents to the assessee was to enable it to undertake its trading activity of manufacturing the theodolites and microscopes therefore, these documents had a vital function to perform in the Manufacture of these instruments. In fact it is with the aid of these complete and upto date sets of documents that the assessee was able to commence its manufacturing activity and these documents really formed the basis of the business of manufacturing the instruments in question. It is true, by themselves these documents did not perform any mechanical operations or processes but that cannot militate against their 705 being a plant since they were in a sense the basic tools of the assessee 's trade having a fairly enduring utility, though owing to technological advances they might or would in course of time become obsolete. Therefore, the capital asset acquired by the assessee falls within the definition of "Plant" and therefore a depreciable asset. [715 B G] Commissioner of Income Tax, Gujarat vs Elecon Engineering Co. Ltd., approved.

"V. P. Latex" imported by the appellants was treated as falling under item 87 of the Indian Tariff Act 1934, the custom Authorities and custom duty was charged, in addition to a countervailing duty under item 15A of the Central Excise Tariff, in accordance with the Central Salt & Excise Act 1944. The appellants contending that V.P. Latex is an item of raw rubber covered only by item 39 of the Indian Tariff Act 1934 preferred refund claim under section 27(1) of the Customs Act before the Assistant Collector, which was dismissed on the ground of limitation. The appeal under section 128(1)(b) and the Revision failed. Dismissing the appeals, by special leave the Court. ^ HELD: In the instant case, there was nothing to show that duty was paid under protest, general or specific and therefore the claim was not within the period of limitation. The view taken by the authorities on the question of limitation was correct. [867 DE] Dunlop India Ltd., etc. vs Union of India, [1976] (2) S.C.R., P. 98 referred to.

The appellant had claims, for compensation against certain German firms in respect of machineries supplied by them to the appellant 's concerns. The appellant went to Germany and arrived at settlements with the firms, under which the firms deposited certain sums of money with the Deutsche Bank in the account of the appellant with the stipulation that the money was only to be used by the appellant for purchases of new machineries from the same firms after obtaining import licenses from the Government of India. The appellant had not obtained permission, general or special, of the Reserve Bank for opening this account. Section 4(1) of the Foreign Exchange Regulation Act, 1947, prohibits a 'Person resident in India ', inter alia, from lending to any person outside India foreign exchange without the permission of the Reserve Bank. Section 23 lays down the penalties for contravention of section 4(1) on adjudication by the Director of Enforcement and on conviction by a Court. Section 23D confers upon the Director the power to adjudicate whether any person has contravened section 4 (1) and empowers him, if he is of the opinion that the penalty which he is empowered by impose would not be adequate in the circumstances of any particular case, to make a complaint in writing to the Court. The Director inquired into the appellant 's Deutsche Bank account, held that the appellant had contravened s, 4(1) and imposed a penalty of Rs. 55 lakhs. On appeal the Foreign Exchange Appellate Tribunal held that the deposits amounted 298 in law to loans by the appellant to the Bank and consequently section 4(1) was contravened but it reduced the penalty to Rs. 5 lakhs. The appellant contended (i) that section 23(1) of the Act offended article 14 of the Constitution as two parallel procedures were provided for the same offence and it was left to the discretion of the executive to choose which was to be applied in. a particular case, and (ii) that there was no loan by the appellant to the Bank and therefore there was no contravention of section 4(1). Held, that the power conferred upon the Director under section 23D to transfer cases to a court is not unguided or arbitrary and, does not offend article 14 and section 23(1) cannot be assailed as unconstitutional. A serious offence should not go without being adequately punished; and in such cases the accused should have the benefit of trial by a Superior Court. Under section 23D the transfer is to a Court and that only when the Director considers that a more severe punishment than what he is authorised to impose should be awarded. Held, further, that the appellant had not lent money to the Deutsche Bank and had not contravened the provisions of section 4(1) of the Act. Though normally when moneys are deposited in a Bank, the relationship that is constituted between the Banker and the customer is one of debtor and creditor, there may be special arrangement under which the relationship may be different. The right of the appellant to the amounts in deposit was contingent on the happening of certain events some of which were beyond his control and until then there was no debt due to him. A contingent debt is no debt until the contingency happens, and as the right of the appellant to the amounts in deposit in his name in the Deutsche Bank arises only on the happening of the contingencies, i.e. granting of the import licenses by the Government of India, there was no debt due to him in presenti and there was no loan thereof within section 4(1) of the Act. The fact that money has been put in a Bank does not necessarily import that it is a deposit in the ordinary course of banking. The purpose of the deposits and the conditions attached to it indicated that the Deutsche Bank held the money under a special arrangement which constituted it not a debtor, but a sort of a stakeholder. The words "a person resident in India" in section 4(1) has been used in the sense of "resident of India", and it was not necessary that at the time of the contravention of section 4(1) should be actually in India. Foley vs Hill, (1848) 11 H. L. C. 28, Webb vs Stenton, and Tapp vs Jones, (1875) L. R. 10 Q.B. 591, referred to. 299

Appeal No. 340 of 1958. Appeal by special leave from the Judgment and Order dated July 3, 1953, of the Punjab High Court in Civil Writ Application No. 256 of 1952. Jwala Parshad Chopra and J. K. Hiranandani, for the appellants. Nanak Chand, R. H. Dhebar and T. M. Sen, for respondents Nos. 1 to 3. 1961. April 21. DAYAL, J. This appeal, by special leave, is against the order of the Punjab High Court 153 dismissing the petition of the appellants under article 226 of the Constitution praying for quashing the orders of the Custodian General, dated June 17, 1952. The appellants and respondents Nos. 4 and 5 are, residents of village Baland, Tehsil and District Rohtak, and are members of the body of proprietors of that village. The village Baland is divided between three estates. The plot in suit is in the estate known as 'Barsan '. One Fakira, a mendicant and a non proprietor, had his house on the plot in suit. In January, 1950, the Custodian of Evacuee Property issued a notice under section 7 of the Administration of Evacuee Property Ordinance No. XXVII of 1949, stating that the appellants were in unauthorised possession of the house of Fakira, a Muslim evacuee, and that the should either vacate the house or show cause to the contrary. The appellants filed their objections to the notice. The Deputy Custodian of Evacuee Property, by his order dated September 3, 1950, rejected the objections raised by the appellants and declared the house to be 'evacuee property '. The Deputy Custodian passed this order after he got an enquiry made through the Revenue Assistant (Rehabilitation). The appel lants went in appeal to the Additional Custodian, Evacuee Property, who got further enquiry made to ascertain whether Mumtaz, son of Fakira, evacuee, had been in occupation of the house up to the date of the migration of the Muslims as a result of the partition. This enquiry revealed that Mumtaz had continued to reside in the village Baland and that a son was born to him in July, 1947. The Additional Custodian therefore agreed with the report and the order of the Deputy Custodian that the property in suit was evacuee property. The appellants then filed a revision before the Custodian General. It was dismissed on June 17, 1952. The Custodian General observed that there was more than sufficient evidence to establish that Mumtaz continued to be in possession of the house in dispute up to July, 1947. Thereafter, the appellants filed a writ petition in the High Court challenging the legality of the order of the 20 154 Deputy Custodian on the grounds that the Deputy Custodian gave no notice or opportunity to them to meet the case and that the Custodian had no jurisdiction in the matter in view of the provisions of the wajibul arz according to which the house of a non proprietor, on his leaving the village, vested in the proprietory body. The learned Single Judge who heard the petition held that the provisions of the Administration of the Evacuee Property Act, 1950 (Act XXXI of 1950), had been complied with throughout and referred the question whether the site occupied by a non proprietor vested or not in the Custodian after the occupier had abandoned it, to a larger Bench in view of his opinion that the decision of another Single Judge in Joti Parshad vs Bhawani Lal required re consideration. The Division Bench then decided this question and held the right of a non proprietor to occupy a village site was a right in property, though it might not be an interest in property and that this right vested in the Custodian if the non proprietor left the country and became an evacuee. The writ petition was accordingly dismissed and it is against this order that this appeal has been filed. The sole question for determination in this case is whether Fakira had any such right in the property in suit which could vest in the Custodian on Fakira or his son Mumtaz becoming an evacuee. The case for the appellants is that Fakira had no such right which could vest in the Custodian both on account of the terms of the wajib ul arz and on account of his being a licensee. The respondents rely on section 18 of the to rebut this contention. It is necessary therefore to determine the scope of section IS of the Act. Section 18, as originally enacted, was substituted by section 8 of Act XI of 1953, which provided that the substituted section shall be deemed always to have been substituted for the original section. Thus the present section must be deemed to be the section existing from the commencement of this Act. Sub section (1) of section 18 is: "(1) Where the rights of an evacuee in any land 155 or in any house or other building consist or consisted of occupancy rights, nothing contained in any law for the time being in force or in any instrument having the force of law or in any decree or order of any court, shall extinguish or be deemed to have extinguished any such rights either on the tenant becoming an evacuee within the meaning of this Act or at any time thereafter so as to prevent such rights from vesting in the Custodian under the provision of this Act or to prevent the Custodian from exercising all or any of the powers conferred on him by this Act in respect of any such rights, and, notwithstanding anything containd in any such law, contract, instrument, decree, or order, neither the evacuee nor the Custodian, whether as an occupancy tenant or as a tenant for a certain time, monthly or otherwise, of any land or house or other building shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default of (a) the evacuee committed after he became an evacuee or within a period of one year immediately preceding the date of his becoming an evacuee; or (b) the Custodian." The expression 'occupancy rights ' has not been defined in the Act. It is these occupancy rights which are not extinguished in spite of the provisions to the contrary in any other law or in any instrument having the force of law or in any decree or order of the Court. The occasion when they will not be extinguished would be when a tenant becomes an 'evacuee ' within the meaning of the Act, or thereafter. It follows that sub section (1) of section 18 provided for the non extinguishment of those occupancy rights which would have been extinguished otherwise on the tenant 's becoming an evacuee and that therefore the person having such rights must be a tenant. If he is not a tenant, then the occasion contemplated by sub section (1) of section 18, for the application of its provisions, does not arise. This is further clear from the latter part of this subsection which provides that notwithstanding anything contained in any law etc. , neither the evacuee nor the Custodian, whether as an occupancy tenant or as a, 156 tenant for a certain time, shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default. This latter part also makes it clear that the persons contemplated by the section are the tenants, whether occupancy tenants or tenants for a certain time. We therefore hold that the provisions of section 18 apply to the occupancy rights of a tenant. The next question to determine is whether Fakira was a tenant of this house. It is clear that Fakira who resided in the house in suit, was not a tenant of it. He occupied the site and probably built the house himself on getting the necessary permission from the proprietors. With respect to non proprietors, the wajib ul arz of the village states: "No non proprietor can settle in the village or build a house without the consent of the owner of the estate. Whenever anybody settles, he obtains land or house from the proprietor of the same and he can live there so long as he pleases. Whenever he abandons the village, if the house belongs to the Shamlat ofit falls into the possession of that proprietorAbout the houses of non proprietors . there isno customary right to sell or mortgage residential houses, remove the material or build burnt brick house without the consent of the proprietor If any person dies heirless his house reverts to the possession of the proprietor of the estate in which it is situate. " The mendicants are mentioned as one of the types of non proprietors settled in the Shamlat of the estate. It is clear from these provisions that Fakira, a non proprietor, had no such right in the site as would make him a tenant of it. He just had a right to occupy it and build a house which was, however, heritable and transferable only with the consent of the proprietor. It follows, therefore, that the provisions of sub section (1) of section 18, do not apply to Fakira 's rights in the plot in suit and cannot therefore over ride the provisions of the wajib ul arz according to which his right to 157 reside in the house in suit came to an end when he abandoned the village on his migrating to Pakistan. Learned counsel for the respondent has further contended that apart from section 18 of the Act, Fakira 's right to residence in the house in suit will vest in the Custodian as his migrating from the village to Pakistan on partition does not amount to abandonment contemplated by the provisions of the wajib ul arz. It is submitted that the wajib ul arz contemplates voluntary abandonment and not abandonment under force. We find it difficult to accept this contention. The abandonment is voluntary, though the volition to abandon arises on account of circumstances over which Fakira bad no control. He left the village and migrated to Pakistan because he thought that to be the better thing to do. This point was also not taken before the High Court. Reliance is placed on the case reported as Associated Hotels of India vs R. N. Kapoor (1) for supporting the contention that Fakira was a lessee of the land in suit and not a licensee. We do not think this case supports the contention. The following propositions were laid down in that case for determining whether a document creates a licence or a lease: (1)To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form. (2)The real test is the intention of the parties whether they intended to create a lease or a licence. (3) If the document creates an interest in the property, it is a lease, but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence, and (4) If under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant, but circumstances may be established which negative that intention to create a lease. The terms of the wajib ul arz, already mentioned, make it clear that no interest in the site on which Fakira was settled was given to Fakira by the proprietors of the village. He was just granted a heritable (1) [1060] 1 S.C.R. 368,385, 158 right to occupy it for residence. The house reverted to the possession of the proprietors if he died heirless. Learned counsel for the respondent has drawn our attention to the observation in the above case to the effect: "The right of the respondent to transfer his interest under the document, although with the consent of the appellants, is destructive of any theory of licence. " This observation does not help the respondent 's case because no interest was created in Fakira and therefore no question of his transferring that interest arises. The wajib ul arz only expresses this much, that there was no customary right to sell or mortgage residential houses, remove the material or build burnt brick houses without the consent of the proprietors. It does not say that the non proprietor can transfer his residential right to any one with or without the consent of the proprietor. We therefore do not agree with this contention. It has also been contended for the respondent that the licensee 's rights which Fakira bad, could vest in the Custodian, as they come within the meaning of the expression 'property '. Even if they do, those rights get extinguished in view of the provisions of the wajib ul arz and therefore there could be no vesting of those rights in the Custodian if the vesting of those rights is not prevented on account of the applicability of section 18 of the Act. We have already held that section 18 does not apply as Fakira was not a tenant. The expression 'evacuee property ' as it stood in the Act till its amendment in 1953, meant any property in which an evacuee had any right or interest, whether personal or as a trustee or as a beneficiary or in any other capacity and included any property etc. Fakira had no right in any capacity in the property in suit when the came into force in 1950, and therefore the property in suit could not have been 'evacuee property '. Lastly, we do not find any support in the provisions of the wajib ul arz or in any law for the observation in the judgment of the Court below: 159 "Were the evacuee to come back he could demand to take possession of the site, and so it cannot be said that the right has ceased to exist. The right ceases only if the occupier leaves the village permanently with no intention of returning,. It was nobody 's case that Fakira and his son had left the village temporarily and were to return. It was said in paragraph 5 of the written statement of respondents 1 to 3 that Fakira abandoned the house only in 1947 at the time of partition. The entire case was that Fakira had migrated to Pakistan and had abandoned the village. We are therefore of opinion that Fakira did not possess any such right in the land in suit which could vest in the Custodian and that therefore the property in suit is not 'evacuee property '. We therefore allow the appeal with costs throughout and, setting aside the order of the Court below, allow the petition and quash the order of the Custodian General dated June 17, 1952, declaring the property in suit to be evacuee property. Appeal allowed.

The wajib ul arz of village Buland, teshil and district Rohtak, provided as follows: "No non proprietor can settle in the village or build a house without the consent of the owner of the estate. Whenever anybody settles, he obtains land or house from the proprietor of the same and he can live there so long as he pleases. Whenever he abandons the village, if the house belongs to the Shamlat of it falls into the possession of the proprietor About the houses of non proprietors there is no customary right to sell or mortgage residential houses, remove the material or build burnt brick house without the consent of the proprietor If any person dies heirless his house reverts 152 to the possession, of the proprietor of the estate in which it is situate", and mentioned the mendicants as a type of non proprietors settled in the village. One F, a Muslim belonging to that class, migrated to Pakistan. The appellants, who were proprietors, took possession of his dwelling house. The Custo dian of Evacuee Property claimed it as evacuee property. The appellants ' objection was finally dismissed by the Custodian General who held that the house was evacuee property and vested in the Custodian. The High Court dismissed the appellants ' petition under article 226 of the Constitution holding that the right of a non proprietor to occupy a village site was a right in property and vested in the Custodian when the non proprietor became an evacuee. In this Court, while the appellants relied on the wajib ul arz, on behalf of the respondents reliance was placed on section 18 of the . Held, that section 18(1) of the Administration of Evacuee Pro perty Act, 1950, contemplated tenants, whether occupancy tenants or tenants for a certain time and applied only to the occupancy rights of a tenant. Under the wajib ul arz, however, a non proprietor could have no such right in the site occupied by him as would make him a tenant of it. Section 18(1) of the Act, therefore, had no application and the house in question reverted to the proprietors under the provisions of the wajib ul arz when the non proprietor abandoned the village and migrated to Pakistan. It could not, therefore, vest in the Custodian. It was not correct to say that under the wajib ul arz that F 's interest in the house was that of a lessee. Associated Hotels of India vs R. N. Kapur, [1960] 1 S.C.R. 368, held inapplicable,

The appellants/petitioners were tenants in the premises belonging to the respondent Banks/Life Insurance Corporation of India. Their tenancy had expired or had been terminated by the respondents and eviction proceedings initiated against them under the provisions of the . Writ peti tions under Article 226 were filled by the appellants in the High Court challenging the orders of eviction passed against them, which were dismissed; hence these appeals. The writ petitioners moved this Court directly under Article 32 of the Constitution against the notices of termination of tenancy issued to them. The Public Premises Act of 1971 was preceded by two enactments the Government Premises (Eviction) Act 1950, and the Public Premises (eviction of unauthorised occupants) Act, 1958 which were declared unconstitutional by different High Courts. Jagu Singh vs M. Shaukat Ali, ; Satish Chander & Anr. vs Delhi Improvement Trust, AIR 1958 Punjab 1; Brigade Commander, Meerut Sub Area vs Ganga Pra sad, ; P.L. Mehar etc. vs D.R. Khanna, etc., AIR 1971 Delhi 1 and Northern India Caterers Private Ltd. vs State of Punjab & Anr. , ; 650 This led to the enactment of the Public Premises Act in 1971. The validity of this act was upheld by this Court in Hari Singh vs The Military Estate Officer, ; Before this Court, the contentions were advanced by the parties mainly on two questions (i) whether the provisions of the Public Premises Act were applicable to the Premises belonging to a nationalised bank; and (ii) whether the provisions of the Public Premises Act override the provi sions of the Delhi Rent Control Act. In regard to the applicability of the Public Premises act, it was inter alia contended that the premises belonging to a nationalised bank or insurance company did not fall within the ambit of the definition of 'Public Premises ' contained in Section 2(e) of the Public Premises Act for the reason that the nationalised bank was not a company as defined in Section 3 of the and it was also not a corporation established by or under a Central Act. On the other hand, it was contended that the respond ents being nationalised bank, was a corporation established by a Central Act, viz., the Bank Nationalisation Act, and the premises belonging to a nationalised bank were 'public premises ' under section 2(e)(2)(ii) of the Public Premises Act. In regard to the second question, each side claimed that the enactment relied upon by it was a special statute and the other enactment was general, and also invoked the not obstante clause contained in the enactment relied upon. In this connection, it was argued on behalf of the respondents that the Public Premises Act having been enacted by Parlia ment in exercise of legislative power under Article 246(1) of the Constitution in respect of matters enumerated in the Union List would ipso facto override the provisions of the Rent Control Act enacted in exercise of the legislative powers under Article 246(4) in respect of matters enumerated in the concurrent list. Dismissing the appeals and the writ petition, this Court, HELD: (1) The provisions of the Public Premises Act, to the extent they cover premises failing within the ambit of the Rent Control Act, override the provisions of the Rent Control Act, and a person in unauthorised occupation of public premises under Section 2(e) of the Act cannot invoke the protection of the Rent Control Act. [694D E] (2) After the second world war there has been develop ment of a new pattern of public corporation in England as an instrument of plan 651 ning in the mixed economy. The general characteristics of such a public corporation is that it is normally created by a special statute; it has no shares and no share holders, either private or public, and its share holder, in the symbolic sense, is the nation represented through Government and Parliament; and it has the legal status of a corporate body with independent legal personality. There has been a similar growth of this type of public corporation in other. countries. This trend is also evident in our country. since Independence and a number of such public corporations have been constituted by Acts of Parliament. [668A C] (3) The expression 'Corporation ' in Section 2(e)(2)(ii) of the Public Premises Act would include public corporations of the new pattern constituted under the Central Acts where in the entire paid up capital vests in the Central Govern ment. [670G] S.S. Dhanoa vs Municipal Corporation, Delhi, ; , distinguished. (4) In order to constitute a corporation it is not necessary that there should be shareholders or members and that in the new pattern of public corporation that has developed there are no shareholders or members. [671G] Bank of New South Wales & Ors. vs The Common wealth, ; and R.C. Cooper vs Union of India, ; , referred to. Oriental Bank of Commerce vs Delhi Development Authori ty, , overruled. (5) Provisions of the Banks Nationalisation Act show that the nationalised Bank has been constituted as a dis tinct juristic person by the Act and it is owned by the Central Government. They further indicate that the nationa lised bank has all the attributes of the new pattern of public corporation. [667B] (6) The object of the legislation in enlarging the definition of 'public premises ' in Section 2(e) of the Public Premises Act is to make available the machinery of the Act for evicting unauthorised occupants not only from the premises belonging to the Central Government but also from premises belonging to Companies, Corporation and statu tory bodies in which the Central Government has a substan tial interest. [670D E] 652 (7) Under Section 2(e)(2)(i) premises belonging to a company incorporated under the , in which not less than fifty one percent of the paid up capital is held by the Central Government, are to be treated as public enterprises. It could not be the intention of Parliament that premises belonging to public corporations whose entire paid up capital vests in the Central Government and who are the instrumentalities of State would be excluded from the ambit of the definition of 'public premises '. [670E G] (8) Keeping in view the provisions of the Banks Nation alisation Act the nationalised bank is a corporation estab lished by a Central Act and it is owned and controlled by the Central Government. The premises belonging to a nationa lised bank are public premises under Section 2(e)(2)(ii) of the Public Premises Act. [671 H; 672A] (9) There is no warrant for confining the scope of the definition of 'public premises ' contained in section 2(e) to premises used for residential purposes only and to exclude premises used for commercial purposes from its ambit. [672D] Hari Singh vs Military Estate Officer, ; , referred to. (10) No distinction can be made between premises used for residential purposes and premises used for commercial purposes in the matter of eviction of unauthorised occupants of public premises and the consideration which necessitate providing a speedy machinery for eviction of persons in unauthorised occupation of public premises apply equally to both the types of public premises. [673B C] (11) The definition of the expression 'unauthorised occupation ' contained in Section 2(g) of the Public Premises Act is in two parts. The second part of the definition is inclusive in nature and expressly covers continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoev er. The words "whether by way of grant or any other mode of transfer" in this part of the definition are wide in ampli tude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. [673F; G H; 674B] Brigadier K.K. Verma vs Union of India, AIR 1954 Bom 358, distinguished. 653 Lallu Yeshwant Singh vs Rao Jagdish Singh & Ors., ; , and Express Newspapers Pvt. Ltd. & Ors. vs Union of India & Ors. , [1985] Suppl. 3 SCR 302, referred to. (12) It is true that there is no requirement in the Public Premises Act that the Estate Officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease when the Public Premises Act and the Rules framed thereunder provide for a right of appeal of the District Judge against an order of the Estate Officer. which shows that the final order that is passed is by a judicial officer. [675F H] Maganlal Chhagganlal (P) Ltd. vs Municipal Corporation of Greater Bombay & Ors., ; , referred to. (13) As regards rent control legislations enacted by the State legislatures, the position is well settled that such legislation fail within the ambit of entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution. [682E] Indu Bhushan Bose vs Rama Sundari Devi & Anr. , ; ; V. Dhanpal Chettiar 's vs Yesodai Ammal, ; ; Jai Singh Jairam Tyagi Etc. vs Mamanchand Ratilal Agarwal & Ors., ; ; Accountant and Secretari al Services Pvt. Ltd. & Anr. vs Union of India & Ors. , ; , referred to. (14) The Rent Control Act has been enacted by Parliament in relation to the Union Territory of Delhi in exercise of the legislative power conferred under Article 246(4) of the Constitution which empowers Parliament to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. [682G] (15) The Public Premises Act deals with Government property as well as property belonging to other legal enti ties mentioned in clauses (2) and (3) of Section 2(e) of the Public Premises Act. In so far as it relates to eviction of unauthorised occupants from premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government, the Public Premises Act would fail within entry 32 of List I being law with respect to a property of the Union. The property belonging to the various legal entities mentioned in clauses (2) and (3) of Section 2(e) of the Public Premises Act cannot be regarded as property of 654 the Union and the Public Premises Act cannot be held to have been enacted under entry 32 of List I in respect of the said properties. In so far as it deals with a lessee or licensee of premises other than premises belonging to the Central Govt; the Public Premises Act has been enacted in exercising the legislative power in respect of matters enumerated in the concurrent list. [682H; 683A C] (16) Both the statutes, viz. the Public Premises Act and the Rent Control Act, have been enacted by the same legisla ture, Parliament, in exercise of the legislative powers in respect of the matters enumerated in the Concurrent List. [684C] Accountant and Secretarial Services Pvt. Ltd. vs Union of India And Ors., ; ; Smt. Saiyada Mossarrat vs Hindustan Steel Ltd.; , and L.S. Nair vs Hindustan Steel Ltd., AIR 1980 MP. 106, referred to. (17) The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Transfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudica tion of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The Rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi. [686D F] (18) The Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. [689E] Jain Ink Manufacturing Company vs Life Insurance Corpo ration of India & Anr., ; , referred to. (19) Both the enactments, namely, the Rent Control Act and the Public Premises Act, are special statutes in rela tion to the matters dealt with therein. Therefore, the exception contained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier contrary laws, the Public Premises Act must prevail over the Rent Control Act. [686H; 687A] J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs The State of Uttar Pradesh, ; ; U.P. State Elec tricity Board vs Hari 655 Shankar Jain; , and Life Insurance Corpora tion vs D.J. Bahadur; , , referred to. (20) In the case of inconsistency between the provisions of two enactments, both of which can be regarded as Special in nature. the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. [688G] Shri Ram Narain vs The Simla Banking and Industrial Co. Ltd.; , ; Kumaon Motor Owners ' Union Ltd. vs The State of Uttar Pradesh, ; and Sarwan Singh vs Kasturi Lal; , , referred to. (21) Keeping in view the object and purpose underlying both the enactments viz., the Rent Control Act and the Public Premises Act, the provisions of the Public Premises have to be construed as overriding the provisions contained in the Rent Control Act. [690H] The Parliament was aware of the non obstante clauses contained in Section 14 and 22 and the provisions contained in Sections 50 and 54 of the Rent Control Act when it enact ed the Public Premises Act containing a specific provision in Section 15 barring jurisdiction of all courts (which would include the Rent Controller under the Rent Control Act). This indicates that Parliament intended that the provisions of the Public Premises Act would prevail over the provisions of the Rent Control Act inspite of the above mentioned provisions contained in the Rent Control Act. [691A B] (23) The scope of the provisions of the Public Premises Act cannot be cut down on the basis of an apprehension that the corporations may be induced to earn profits by purchas ing property in possession of tenants at a low price and after buying such property evict the tenants after terminat ing their tenancy and thereafter sell the said property at a much higher value. Every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigours of the Rent Act, must be informed by reason and guided by the public inter est. [693F; E G] M/s Dwarkadas Marfatia and Sons vs Board of Trustees of the Port of Bombay, ; , referred to.

The appellant who was residing at House No. 546 situated at Dhantoli area at Nagpur was evicted from the said prem ises on the ground of bona fide requirement of its landlord. Therefore he became an "evicted person" within the meaning of section 2(2) of the Central Province and Berar Letting of House and Rent Control Order, 1949. Being a Government employee he applied to the House Allotment Officer that he may be allotted House No. 406/1 under clause 24A of the said Control Order simultaneously indicating that he was an "evicted person" also. The premises came to his occupation on the orders passed by the House Allotment Officer in 1960. The appellant retired from service on 1.5.1978. On 10.9.1979 one Vijay Mude, one of the respondents, moved an application before the House Allotment Officer for vacating the appel lant from the premises on the ground that he has retired. The said application under clause 25 of the Rent Control Order was contested by the appellant that it was not ap plicable as he was an "evicted person" under clause 2(2) of the Control Order. Having lust before all courts, the appel lant came by way of special leave. Allowing the appeal, the Court, HELD: 1.1 On the scheme of the different clauses it was only when a person was granted an allotment as a government servant, then and then only can clause 25 be invoked for his eviction. In other cases, the clause 13 will be relevant. The summary procedure of clause 25 could only be available in case of recovery of possession given to a person as a government servant on his retirement. Indeed the provisions are peculiar. Even if a government servant goes on earned leave or is transferred even then he becomes disentitled to remain in possession of the premises in question and would be liable to be evicted by virtue of clause 25 of the said Rent Control Order. Being drastic in nature, therefore, one who seeks allotee 's eviction has to establish that the allotment to the person whose eviction is sought was made in the capacity 403 contemplated under clause 25. Clauses 23, 24A and 25 of the Rent Control Order deal with three independent categories of persons and the summary procedure on proper construction of clause 25 was applicable only where allotment is given to a tenant as a tenant. Clause 25 would not operate, if a Gov ernment servant happened to be an evictee and an allotment is made in that capacity. In the instant case, on a con struction of the various documents and the evidence adduced in this appeal under these proceedings, it is clear that allotment was given to the appellant as an evictee who happened to be at the relevant time a government servant. Therefore, on his retirement from the government service, he did not cease to be an evictee and did not come within the mischief of clause 25 of the said Control Order. [408G 409 A 409H 410B] 1.2 Even if allotment is made to a person who is both an evictee as well as a government servant then if one of the grounds of the order namely, that he was a government serv ant ceases to exist on retirement, the other reason operates i.e. he was an evictee and still continues to be an evictee then the allotment would continue. In this case even if it be held that it cannot be conclusively determined that the order of allotment was made in favour of the appellant only on the ground that the appellant was an evictee but it was made also on the ground that the appellant was a government servant, and after his retirement the other ground namely the allottee still being an evictee remained valid it can be sustained. [410 C, F] State of Maharashtra & Anr. B.K. Takkamore & Ors., ; , applied.

The appellant purchased the suit property by a regis tered sale deed dated 27th December, 1950 for a considera tion of Rs.7,000. On 1st January, 1951, the respondent executed a rent agreement in favour of the appellant ac knowledging her as landlady at Rs.80 per month. The mother of the appellant died in 1963. In 1974, the respondent filed a suit against the appellant for conveyance of the suit property in his favour on the basis of a 'ya dast ', alleged to have been written by the mother of the appellant on 24th December, 1950 in his favour providing for conveyance of the property in his favour after .paying the sale price of Rs.7,000 and Rs.1,000 for registration ex penses. This 'yadast ' was however neither stamped, regis tered, nor attested. It was marked as exhibit A 11. The Trial Court decreed the respondent 's suit relying on the 'yadast '. On appeal the Additional District Judge after detailed examination of all the facts involved in the case and the evidence of the parties, came to the finding that the appel lant acquired title to the property on the basis of the sale deed which was a registered document in her favour and that the suit property was leased out to the respondent under a rent agreement, and that as the mother of the appellant was not a party to the sale deed she had no right to agree o convey the property or to ask her daughter to convey the same in favour of the respondent. He also came to the con clusion that the Yadast was not a genuine document but a forged one which was just got up for the purposes of the suit. He accordingly allowed the appeal, and held that the suit for specific performance was further barred as it was filed more than 20 years after the alleged 'Yadast '. 834 The High Court in Second Appeal, however interfered with the findings of fact arrived at by the lower Appellate Court solely on the basis that the evidence of the scribe of the 'Yadast ' was not discussed by the lower appellate Court, and accordingly allowed the Second Appeal. In the Special Leave Petition to this Court, it was contended on behalf of the appellant that the suit for specific performance of the contract could only be decreed against the executant of the contract provided the executant had a right to dispose of the property about which the suit was filed, and that there was no question of law on the basis of which the High Court exercised jurisdiction under Section 100 C .P.C. and interfered with the findings of fact. Allowing the appeal, this Court HELD: 1. Section 100 C.P.C. clearly indicates that the High Court had the jurisdiction to interfere only when a substantial question of law is involved and even then it is expected that such a question shall be so framed although the court is not bound by that question as the proviso indicates. There may be some other substantial questions of law which may need decision and which can be so decided. [838G H] In the instant case, the Single Judge of the High Court has chosen to interfere with the findings of fact solely on the basis of one ground, that the evidence of the scribe of the 'Yadast ' PW 2 was not discussed by the lower appellate court, and its failure has affected the validity of the finding rendered by it. This was no substantial question of law, much less a question of law on which the High Court could interfere with the findings of fact. At best the questions on which the High Court chose to interfere could be said to be questions of appreciation of evidence. [837H; 839F] 2. The suit for specific performance of the contract could only be decreed against the executant of the contract provided the executant had a right to dispose of the proper ty about which the suit is filed. [836H; 837A] In the instant case, admittedly the mother of the appel lant who, was alleged to have executed the 'Yadast ' was not the owner of the property. Both the parties to the 'Yadast ' were strangers to the sale deed, and the sale deed does not refer to any one of them nor there is anything in the sale deed to indicate that it was not an out and out sale. [837D] 835

The respondent sued the State of Bihar for a declaration that the Bihar Land Reforms Act, 1950, was ultra vires, void and unconstitutional and for a permanent injunction restraining the State and its officers or agents from issuing any notification thereunder in respect of her estate or taking possession thereof and on a petition filed along with the plaint obtained an order of temporary injunction against the State in terms of her prayer, pending the hearing of the suit. More than a year thereafter, the State made an application under 0. 39, r. 4 of the Code for a discharge of the order of temporary injunction on the ground that the impugned Act had in another case been declarer valid by the Supreme Court. Before that application could, however, be heard, the State of Bihar, on May 19, 1952 issued a notification under section 3(1) of the Act, authenticated by the Additional Secretary to the Government, declaring that, amongst others, the respondent 's estate had vested in the State of Bihar under the provisions of the Act. Thereupon the respondent moved the trial Court for taking action against the State under 0. 39, r. 2(3) of the Code. The contention on behalf of the State was that in view of article 31 B of the Constitution the issue of the notification was lawful and could not constitute contempt of Court. The Subordinate judge held that this was no defence to the application by the respondent and directed attachment of the appellant 's property to the value of Rs. 5,000 and the High Court on appeal affirmed that decision. Held, that the courts below took the correct view of the matter and that the appeal must be dismissed. The procedure laid down by 0. 39, r. 2(3) of the Code of Civil Procedure is remedial and essentially one for the enforcement or execution of an order of temporary injunction passed under 0. 39, r. 2(1) and is available against the State although the provision for detention may not apply to it. It is wrong to say that it is either contrary to article 300 of the Constitution or hit by the rule that no action lies against the State in tort or for a wrong doing entailing punishment or compensation. District Board of Bhagalpur vs Province of Bihar, A.I.R. 1954 729 Pat. 529 and Tarafatullah vs section N. Maitra, A.I.R. 1952 Cal. gig, distinguished. There is also no basis for the contention that the State is not expressly or by necessary implication mentioned in 0. 39, r. 2(3). The word 'person ' used by it, properly construed, includes the defendant against whom the order of injunction is primarily issued as also the defendant 's agents, servants and workmen. Since the court 's power to issue an order of temporary injunction against the State under 0. 39, r. 2(1) cannot be in doubt, disobedience of such an order when issued necessarily attracts 0. 39, r. 2(3) of the Code. Director of Rationing & Distribution vs Corporation of Calcutta, ; , held inapplicable. Held, further, that when once an order is passed which the Court has jurisdiction to pass, it is the duty of the State no less than any private party to obey it so long as it stands, and the conduct of the State Government in the instant case in issuing the notification at a time when its application for vacating the injunction was still pending and the attitude taken up by it after the application under 0. 39, r. 2(3) was made and persisted in till the end must be disapproved.

These appeals are by tenants against the land owners. One Bishan Das owned considerable extent of land in Pakistan. He died on April 11, 1948 after he had migrated to India. After his death the Rehabilitation Department allot ted 124 standard acres and 4 I/4 units of evacuee land to Respondents Nos. 2 to 5 his sons and to Nos. 6 & 7 who were the legal heirs of one his deceased son. Each of the five sons was deemed entitled to 24 standard acres and 13 units of land and accordingly mutuation in respect of each of them was allowed by the Rehabilitation Department. Permanent rights in regard to the allotted land were also conferred by the authorities on the said respondents. Thereupon the said respondents land owners initiated ejectment proceedings under sec. 9(1)(i) of the Punjab Security of Land Tenures Act, 1953 against the tenants who were then in occupation of the Lands in question on the ground that each one of them was a small land owner as defined in Section 2(2) of the Act and that they required the land for self cultivation. The Assistant Collector, Hissar rejected the application. Their appeals were dismissed by the Collector on 4.4.1965. Their revision preferred before the Commissioner, Ambala Division was also rejected. Land owners ' further revision to Finan cial Commissioner also failed whereupon they filed a Writ Petition before the High Court on the ground that the land had been allotted to them in lieu of the land owned by their father in Pakistan and consequently the permissible area of each of them was to be computed under the proviso to section 2(3) of the Act, and so computed the holding of each of the five was well below the permissible limit of 30 standard acres prescribed thereunder. The High Court dismissed the Writ petition. Respondents preferred Letters Patent Appeals wherein the High Court held that in view of the Explanation to the proviso to section 2(3), the heirs and successors of the displaced persons to whom lands were allotted could not claim the benefit of the proviso and that the permissi 210 ble area under the substantive part of section 2(3) was 60 ordinary acres, The respondents preferred appeals to this Court. This Court confirmed the view of the High Court. However this Court accepted an argument advanced on behalf of the re spondents land owners that in computing the permissible area of each of the land owner, the uncultivated area of "banjar Jadid", "banjar Kadim" and "gair Mumkin" lands as on April 15, 1953 could not be included. As the authorities had wrongly included these types of lands, their orders were set aside and the case was remanded to the Collector concerned with a direction that should ascertain the extent of "banjar Jadid", "banjar Kadim" and "gair mumkin" lands of the Re spondents allotted as on 15.4.1953. When these proceedings were pending, applications filed by the appellants tenants under section 18 of the Act for purchase of surplus area also came to be considered by the authorities. When the matter came up before the Financial Commissioner he set aside the orders of the Collector and remanded the appel lants tenants cases for purchase of surplus land with a direction that the Collector must decide the cases of sur plus area after allowing the permissible 60 acres to the land owners. In a subsequent proceedings, the Financial Commissioner directed the Collector to determine the permis sible area after excluding all "banjar lands". The tenants filed Petitions before the Financial Commissioner against the order. However by the time these cases came up for orders, this Court had decided the land owners ' eviction cases viz in Munshi Ram & Ors. vs Financial Commissioner. Haryana & Ors., ; As such the revision Petitions were dismissed and the Collector was asked to determine the permissible area with reference to relevant date viz., April 15, 1953. By his order dated 6.5.82 the Collector accordingly determined the area held by each of the land owner after excluding the "banjar lands", as less than the permissible area and found that no area owned by them could be declared surplus and on that footing dismissed the purchase applications filed by the appellantstenants. Their Petitions having been dismissed by the Authorities under the Act, they fried Writ Petitions questioning the dismissal of their purchase applications. The High Court having dismissed the Writ Petitions, they have filed these appeals. Dismissing the appeals, this Court, HELD: The Punjab Security Land Tenures Act 1953 is intended to 211 place a ceiling on holding of land by fixing a maximum area permissible to be held by a land owner. In other words the excess over the permissible area shall be available as surplus area to be dealt with under the provisions of the said Act. [217H] In calculating the total extent held by a person on the date of the Act for purposes of determining whether a person is small land owner, the banjar lands cannot be taken into account. [216C] The need to make a reservation would arise only when the land owner on the relevant date held land in excess of the permissible area. [217C] The right of reservation given to a person who holds land in excess of the permissible area is, among others to give him an option to select that land which he would like to retain for himself and avoid one of the consequences of enabling the tenant to choose under section 18 of the Act any land including that which is under the personal cultiva tion of the land owner. [218B] It is not necessary and the Act does not make it obliga tory, on pain of consequences provided under section 5C, for a small land owner to make a reservation under sections 3, 4, 5, 5A or 5B. [218C] Bhagwan Das vs State of Punjab, ; Gurbux Singh vs State of Punjab, AIR 1964 SC 502, referred to.

A residential house was let out to the petitioner by the respondent. The respondent was initially employed as Accounts Officer with the Finance Department of the Government. In 1969, he went on deputation with the Haryana Agricultural University. While he was employed on the post of Comptroller in the University he retired from service with effect from February 28, 1991. Claiming to be a "specified landlord" within the meaning of Section 2(hh) of the East Punjab Urban Rent Restriction Act, 1949, the respondent moved a petition seeking eviction of the petitioner under section 13A of the Act before the Rent Controller. The petition was dismissed by the Rent Controller on the view that the respondent did not fall within the ambit of the definition of "specified landlord", since he failed to show that he was holding or had held an appointment in a public service or post in connection with the affairs of the Union or of the State. The respondent filed a revision petition before the High Court under section 18 A(8) of the Act, which was allowed by the High Court on March, 1992. The High Court held that the respondent, at the time of his retirement from the post of Comptroller in the University, was holding an appointment in connection with the affairs of the State and hence he was a specified landlord within the meaning of section 2(hh) of the Act and that the respondent had fully satisfied the conditions as contained in section 13 A of the Act and he was entitled to recover the possession of the premises in dispute from the petitioner. The High Court allowed one month 's time for the petitioner to vacate the premises subject to his paying the entire arrears of rent within 15 days from the date of the order and filing an undertaking that he would hand over the vacant possession of the premises on the expiry of the aforesaid period. On March 16, 1992, the petitioner moved a petition in the High Court under section 151 CPC seeking three months ' time to vacate the house and for waiving the requirement of filing of an undertaking. The High Court rejected the petition. Thereafter, the petitioner submitted an undertaking dated March 20, 1992 before the Rent Controller wherein the petitioner referred to the direction contained in the order of the High Court dated March 6, 1992. On March 21, 1992, the petitioner filed the special leave petition under Article 136 of the Constitution in this Court and succeeded to get an order staying dispossession on March 26, 1992. In response to the notice issued on the Special Leave Petition, the respondent filed a counter affidavit raising an objection that in view of the undertaking given by the petitioner, the jurisdiction of this Court under Article 136 of the Constitution could not be invoked. The respondent landlord submitted that in view of petitioner tenant 's having taken the benefit of direction contained to the order of the High Court allowing him one month 's time to vacate the premises on his filing an undertaking that vacant possession of the premises would be handed over on the expiry of the period and his having submitted a written undertaking in accordance with the direction, the petitioner was precluded from assailing the judgment of the High Court by invoking the jurisdiction of this Court under Article 136 of the Constitution. The petitioner tenant submitted that he did not take any undue advantage by giving the undertaking; that prior to the undertaking, he had moved an application for extension of time before the High Court wherein he had clearly indicated that he intended to file a special leave petition in this Court against the order of the High Court dated March 6, 1992 and that it was also expressly stated in the undertaking filed in the Court wherein it is mentioned that the undertaking was subject to his right to file the special leave petition in this Court against the order of eviction. Dismissing the special leave petition, this Court, HELD: 1.01 Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument. [263 F] 1.02 The petitioner, having given an undertaking in pursuance to the directions given by the High Court in the judgment dated March 6, 1992 and having availed the protection from eviction on the basis of the said undertaking, cannot be permitted to invoke the jurisdiction of this Court under Article 136 of the Constitution and assail the said judgment of the High Court. [264 H] 1.03 The statement in the undertaking, that it was subject to the rights of the petitioner to file special leave petition in this Court against the order of eviction, does not have any effect on the legal consequencew flowing as a result of the filing of the undertaking by the petitioner. [263 D] Verschures Creameries Ltd. vs Hull and Netherlands Steamship Co. E Ltd., at p. 612; Thacker Hariram Motiram vs Balkrishan Chatbrabhu Thacker & Ors., [1989] Supp. 2 SCC 655 and Vidhi Shanker vs Heera Lal 1987 Supp. SCC 200; Ramchandra Jai Ram Randive vs Chandanmal Rupshand & Ors., [1987] Supp. SCC 254, referred to. Halsbuly 's Laws of England, 4th Edn. 16, para 1508, referred to.

The appellant and the respondent, who were displaced persons from West Pakistan, were allotted lands in the same village. At the instance of certain persons, the first allotment was cancelled and there was a re allotment. The respondent was aggrieved by this order and on September 27, 195o, he filed a review application before the Deputy Commissioner for restoration of the original allotment but it Was dismissed on May 12 , 1951 Against this order the respondent preferred a revision application to the Additional Custodian. who dismissed the same on August 25, 1952. Thereupon, the respondent filed a revision application before the Custodian General on October 30, 1952. To this revision on the Custodian was made a party; but the appellant was made a party by order of the Custodian General on August 25, 1953. After bearing the parties the Custodian General on September 29, 1954, cancelled part of the re allotment made in favour of the appellant. appellant contended: (i) that the revision application to the Custodian General was barred by time, and (ii)that the ' Custodian General had no power to cancel the allotment. Hold, that the revision application was not barred by time. Rule 31(5) provides that :a revision petition to the Custodian General "shall ordinarly be made within sixty days of the 38 298 order sought to be revised". This rule is only a rule of guidance and not one of limitation and in law a revision can be entertained even after sixty days if the Custodian General in his discretion thinks fit to entertain it. In the present case the revision was filed within the time but the appellant was impleaded after the period of sixty days had expired. But it could not be said that the Custodian General acted perversely or unreasonably in entertaining the revision. Held, further, that the Custodian General had the power to cancel the allotment made on December 2, 1949. Under r. 14(6) the Custodian could not, after July 22, 1952, cancel an allotment except under certain specified circumstances; but the second proviso to r. 14(6) permitted the Custodian General, in exercise of his powers of revision under section 27 , to cancel an allotment made by a lower authority on or before July 22, 1952.

Appeal No. 454 of 1957. Appeal from the judgment and order dated December 16, 1954, of the Court of Judicial Commissioner, Ajmer in Civil Appeal No. 134 of 1952. A. V. Viswanatha Sastri, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellants. G. C. Kasliwal, Advocate General, Rajasthan, section K. Kapur and T. M. Sen, for the respondent. 325 1961. April 24. The Judgment of the Court was delivered by AYYANGAR, J. This is an appeal on a certificate granted by the Judicial Commissioner, Ajmer, and is directed against the judgment of that Court dated December 16, 1954 by which the decree in favour of the respondent Union of India was affirmed. Seth Lal Chand Kothari the original first appellant in the appeal before us (he died pending this appeal and his heirs have been brought on record as his legal representatives appellants 1 to 6) was appointed by the Commissioner Ajmer Merwara as Government Treasurer, Ajmer Merwara, by an order dated February 20, 1940, the treasuries to be under his charge being two that at Ajmer and a subtreasury at Beawar. Before accepting office he had, under the rules, to deposit Government promissory notes to the extent of Rs. 60,000 and also execute a Security Bond for a like amount with two sureties to cover any loss to the Government in these treasuries. He accordingly made the deposit, and a security bond was executed by him on February 27, 1940 with Seth Phool Chand who is now the 7th appellant in the appeal and one Seth Kanwarlal Ranka who died even before the suit and was not impleaded in it. Thereupon Lal Chand Kothari was directed to take charge of the office as Treasurer and he did so on March 6, 1940. We are not concerned with the treasury at Ajmer, but only with that at Beawar. Lal Chand, at the time of his taking charge, executed a receipt headed " charge report" and in it is recited that he had taken over from the previous incumbent (VI. L. Patni) the amount of cash which tallied with what had to be in the treasury according to the books. Nothing happened between 1940 and 1948 and the business at the treasury appeared to be proceeding regularly and according to the rules. It may be mentioned that there were the usual periodical checks and audits by 42 326 Government officials but no impropriety was discovered during these checks or audits. On March 31, 1948, the Extra Assistant Commissioner, Ajmer, made a check of the treasury at Beawar. The treasury staff who ought to have been there were however absent in spite of their having had prior intimation of his arrival and there upon he directed the treasury to be sealed. There were two cash chests at this sub treasury one secured with a single lock, the key of which was with the staff of the Treasurer and the other with doublelocks, the keys of which were held, one by the emplo yee of the Treasurer and the other by the Government Treasury Officer the Tahsildar. A verification of the balance in the two chests disclosed that a sum of 7 annas, 9 pies was missing from the single lock chest and Rs. 84,215 from the chest with the double lock. The Government thereupon took proceedings to realise the missing amount from the security of Rs. 60,000 which had been under deposit. The Government securities were sold and they realized about rupees 58 thousands and odd leaving a sum of Rs. 25,786 13 9 ,still due. The Union of India thereupon filed a suitCivil Suit 125 of 1951 before the Sub Judge First Class, Beawar on the security bond dated February 27, 1940 against Lal Chand Kothari and Seth Phool Chand for recovery of this sum. Several defences were raised by the defendants but they were all rejected by the learned Subordinate Judge who granted the respondents a decree in terms prayed for in the suit. The defendants filed an appeal to the Judicial Commissioner who dismissed it, but having regard to the fact that some of the defences turned on the interpretation of the security bond dated February 27, 1940, granted a certificate under article 133(1) of the Constitution and that is how the appeal is now before US. Neither the factum of the loss by embezzlement nor its amount is in question, and the only points raised for consideration are: (1) whether on the terms of the bond the decree in favour of the appellants could be sustained; (2) whether the claim in the suit was not barred by limitation. The argument on this second 327 point was that if article 83 of the Indian Limitation Act governed the claim it would be barred, and that the provision contained in article 149 prescribing a 60 year period of limitation for suits by the Government was Si, unconstitutional as violative of article 14 of the Consti tution. It is this last plea that has led to the appeal being heard by this larger Bench. As regards the first point that the suit claim was not comprehended within the terms of the security bond, learned Counsel made three submissions: (1) In order to render the defendants liable, the loss sustained by the Government must be proved to have occured on or after March 6, 1940 on which date alone Lal Chand Kothari took charge of the treasury. Though loss to the extent set out in the plaint did occur at the treasury in Beawar, learned Counsel urged, the plain. tiff respondent had not proved that it occurred after March 6, 1940. In other words, the argument was that there was no physical checking on March 6, 1940 when he took over and because of this one could not be certain whether it was a loss which had occurred during the period of the previous incumbent in office or could with certainty be attributed to the period subsequent to March 6, 1940. This argument was rejected by the courts below and, in our opinion, correctly. In the face of the receipt executed by Lal Chand Kothari it would not be open to him to contend that the recitals in it were not correct, and in any event it would be for him to show that it was incorrect and, of course, there was no possibility of his establishing this. (2) It was next urged that on the terms of the Bond read in the context of the surrounding circumstances Lal Chand Kothari would be liable only for the deficiency in the chest with the single lock and not for the loss or embezzlement or deficiency in the other chest with the double lock. The whole basis of this argument was that the security deposit of Rs. 60,000 and the security bond for the like amount executed by the Treasurer was an indication that it was with reference to the amount which was the maximum in the chest under the single lock and from this feature it was 328 urged that it was the intention of the parties that Lal Chand Kothari would not be responsible for any embezzlement, loss or deficiency in the other chest. This submission is without any foundation, because the liability under the Bond would depend upon its terms and in the face of the language used in the document learned Counsel realised that the submission could not be seriously maintained. (3) The last submission under this head was that the loss having occurred in the chest with the doublelock, this could not have been without the connivance of Government officials and that therefore the liability of the Treasurer was excluded. Learned Counsel also drew our attention to the fact that the terms of the bond made Lal Chand liable even for embezzlement by government officers, notwithstanding that he had no control over them. But if Lal Chand agreed to those terms and this is not disputed, the terms must pre vail. Apart from the terms of the security bond however, it would be apparent that if the key of one of the locks was with the employee of the Treasurer the defecation could not have occurred without such employee 's connivance or negligence. If so, the fixing of liability upon the employer could not be characterised even as unreasonable apart from the liability flowing from the terms of the Bond, and such a vicarious liability for the negligence or misconduct of his servants, is not lessened by reason of the assistance or negligence of Government officials. These exhaust the points urged based on the terms of the Bond. It remains to deal only with the contention that the claim is barred by Limitation under article 83 of the Limitation Act on the plea that article 149 of the Limitation Act which fixes a period of 60 years for suits by the Government is unconstitutional as violating article 14 of the Constitution. It is urged that there is no rational basis for treating claims by Government differently from those of private individuals in the matter of the time within which they could be enforced by suit. Learned Counsel urged that statutes of limitation were statutes of repose and enacted to ensure that stale 329 claims were not agitated, so that after a reasonable length of time people might proceed on the footing that they would not be held liable for possible claims against them. Basing himself on these principles, the argument of the learned Counsel was that for the purpose of agitating claims no distinction could be drawn between Government and private ' individuals and that on no rational basis could a legislation which permitted a longer period of limitation for claims by the State be sustained. It is, no doubt, true that Lord Kenyon described statutes of limitation as "Statutes of repose" (vide per Dallas, C. J. in Tolson vs Kaye (1)) and Bramwell, B. as "Statutes of peace" (Hunter vs Oibbons (2)), though sometimes contrary opinions have been expressed. In re Baker (3), Cotton, L. J. observed that pleas of limitation would never be looked upon with any favour since they are used to defeat debts clearly due. It is however unnecessary to examine further the theory underlying statutes of limitation. We shall proceed on the generally accepted basis that they are designed to effectuate a beneficent public purpose, Viz. to prevent the taking away from one what he has for long been permitted to consider his own and on the faith of which he plans his life,, habits and expenses. This however does not militate against there being a rational basis for a distinction being drawn between the claims of the State and the claims of the individual in the matter of a provision of a bar of limitation for enforcing them. In considering this matter two points have to be kept separate: (1) whether a distinction could be drawn or a classification supported between the provision of any variation in the time that should be available for enforcing claims by private individuals and claims by the State, (2) whether, if such a classification were good, the period of 60 years provided by article 149 of the Indian Limitation Act is such a long period of time as to be unreasonable. We are drawing attention to the distinction between these two points because learned Counsel laid (1) , 223: ; , 126g. (2) ; , 5. (3) , 270. 330 much stress on the fact that the period, of limitation fixed by article 149 was 60 years and that this was an unreasonably long period of time. If learned Counsel is right in his submission that there is no rational basis for placing private individuals and the Government in different classes while framing a legislation providing for limitation for actions he might succeed; but if he is wrong there and the correct view is that there is a rational basis of classification, then the period that should be allowed to the Government to file a suit would be a matter of legislative policy and could not be brought within the scope or purview of a challenge under article 14 or indeed of any other article in the Constitution. It is sufficient therefore if we confine ourselves to the first point, viz., whether there is a rational basis for treating the Government differently as regards the period within which claims might be put in suit between the Government on the one hand and private individuals on the other. First and foremost there is this feature that the Limitation Act, though a statute of repose and intended for quieting titles, and in that sense looks at the problem from the point of view of the defendant with a view to provide for him a security against stale claims, addresses itself at the same time also to the position of the plaintiff. Thus, for instance, where the plaintiff is under a legal disability to institute a suit by reason of his being a minor or being insane or an idiot, it makes provisions for. the extension of the period taking into account that disability. Similarly, public interest in a claim being protected is taken into account by section 10 of the Act by providing that there shall be no period of limitation in the case of express trusts. It is not necessary to go into the details of these provisions but it is sufficient to state that the approach here is from the point of view of protecting the enforceability of claims which, if the ordinary rules applied, would become barred by limitation. It is in great part on this principle that it is said that subject to statutory provision, while the maxim vigilantibus et non dormientibus jura Subveniunt is a rule for the subject, the maxim nullum tempus occurit regi 331 is in general applicable to the Crown. The reason assigned was, to quote Coke, that the State ought not to suffer for the negligence of its officers or for their fraudulent collusion with the adverse party. It is with this background that the question of the special provision contained in article 149 of the Act has to be viewed. First, we have the fact that in the case of the Government, if a claim becomes barred by limitation, the loss falls on the public, i.e., on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may be mentioned that in the case of governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. Apart from the delay occurring in the proper officers ascertaining that a cause of action has accrued Government being an impersonal body, before a claim is launched there has to be inter departmental correspondence, consultations, sanctions obtained according to the rules. These necessarily take time and it is because of these features which are sometimes characterised as red tape that there is delay in the functioning of government offices. It is precisely for this reason that we have from the earliest Civil Procedure Codes provisions which find place in the Code of 1908, like O.27,rr.5 and 7 reading: "0. 27. The Court in fixing the day for the Government to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instructions to the Government Pleader to appear and answer on behalf of the Government and may extend the time at its discretion. 0. 27. r. 7(1). Where the defendant is a public officer and, in receiving the summons, considers it proper to make a reference to the Government before answering the plaint, he may apply to the Court to 332 grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel. (2) Upon such application the Court. shall extend the time for so long as appears to it to be necessary. " These matters apart, the ratio underlying the special provisions for summary recovery of amounts due to Government without resort to suits by a procedure not available for enforcing the dues of private individuals, like the "Revenue Recovery Acts" and "Public Demands Recovery Acts" which, have been on the statute book for over a century is also similar, viz., the interest of the public and of the community in realising what is due to it expeditiously; and the constitutional validity of such provisions have been sustained by this Court. In Purshottam Govindji Halai vs Desai (1) this Court held that section 13 of the Bombay Land Revenue Act, 1876, by virtue of which a person had been arrested in pursuance of a warrant issued for recovery of a demand certified under section 46(2) of the Indian Income tax Act, did not offend article 14 of the Constitution. Similarly, in Collector of Malabar vs Ebrahim (2) the arrest of a defaulter in respect of an income tax demand under section 48 of the Madras Revenue Recovery Act was held not to offend article 14 of the Constitution. Perhaps another decision of this Court of more immediate relevance, in which the point now raised that there is no rational basis for distinguishing between the claims of the Government and the claims of private individuals was considered and negatived, is that in Mannalal vs Collector, Jahalwar (3) in which judgment was delivered on December 7, 1960. In this last case it was urged before this Court that the summary mode of recovery of amounts due to the Government for which provision was made by the Rajasthan Public Recovery Act there impugned a mode of recovery which was not available to the private citizen contravened the equal protection of (1) ; (2) ; (3) ; 333 the laws guaranteed by article 14 and this contention was repelled. The argument of learned Counsel for the appellants has therefore to be rejected both on the around of principle as well as on the ratio under lying the decisions of this Court. The appeal fails and is dismissed with costs. Appeal dismissed.

The Government filed a suit on the basis of a security bond executed by a Government Treasurer and certain sureties who joined in the execution of the bond. The contention in defence, inter alia, was that article 149 Of the Indian Limitation Act prescribing a 60 years period of limitation for suits by the Government was unconstitutional as violative of article 14 Of the Constitution and as such the suit was barred under article 83. Held, that statutes of limitation are designed for the bene ficent public purpose of preventing the taking away from one what he has been permitted to consider his own for a long time and on the faith of which he plans his future life. If the suit was by a private individual the suit would have fallen under article 83 and would have been barred by it but different considerations arise in the case of the State and there is a distinction between claims by the Government and those of private individuals. Article 149 Of the Limitation Act, 1908, which fixes a period of 60 years for suits by the Government has a reasonable basis of classification between the Government and private individuals, and the exact period that should be allowed to the Government to file a suit would be a matter of legislative policy and as such its constitutional validity cannot be questioned under article 14 Of the Constitution. Purushottam Govindji Halai vs Desai, ; , Collector of Malabar vs Ebrahim, ; and Mannalal vs Collector of Jhalway, ; , applied.

The appellant in this appeal had been assessed to Income Tax which was reduced on appeal but that assessment was set aside by the Income Tax Appellate Tribunal on the ground that the Indian Finance Act of 1939 was not in force during the assessment year in Chota Nagpur. On a reference by the Tribunal the High Court con firmed the setting aside of this assessment. By the promulgation of Bihar Regulation IV of 1942 by the Governor of Bihar (which was assented to by the Governor General) the Indian Finance Act of 1939 was brought into force in Chota Nagpur retrospectively as from the 30th March 1939. On the 8th February 1944 the Income Tax Officer passed an order in pursuance of which a fresh notice was issued under section 34 which resulted in the assessment of the appellant to income tax. The question for determination in this appeal was whether the notice under section 34 was validly issued. Held (i) that for the purposes of section 34 of the Act the income, profits or gains sought to be assessed were chargeable to income tax according to the scheme of the Act and the provisions of sections 3 and 4 of the Act; (ii) that it was a case of chargeable income escaping assessment within the meaning of section 34 and was not a case of mere non assessment of income tax because the earlier assessment proceedings in the present case had in fact been taken but failed to result in a valid assessment owing to some lacuna which was not attributable to the assessing authorities. C.I.T., Bombay vs Sir Mahomed Yusuf Ismail ([1944] , Fazal Dhala vs C.I.T., B. & O. ([1944] 12 I.T.R. 341), Baghavalu Naidu & Sons vs C.I.T., Madras ([1945] , Raja Benoy Kumar Sahas Boy vs C.I.T., West Bengal ([1953] , Chatturam vs C.I.T., Bihar ([1947] F.C.R. 116), Whitney vs Commissioners of Inland Revenue ([1926] A.C. 37), C.I.T. Bombay & Aden vs Khemchand Ramdas ([1938] at 428), Sir Rajendranath Mukherjee vs C.I.T., Bengal ([1934] , Madan Mohan Lal vs C.I.T., Punjab ([1935] , C.I.T., Bombay vs Pirojbai N. Contractor ([1937] , Kunwar 291 Bishwanath Singh vs C.I.T., C.P. ([1942] , Raja Bahadur Kamakshya Narain Singh vs C.I.T. B. & 0. ([1946] and Chatturam vs C.I.T., B. & 0. ([1946] , referred to.

The appellants obtained a decree against the respondent in the court of Sub Judge, Bankura (West Bengal) on December 3, 1949. On March 28, 1950 they applied to the court which passed the decree to transfer the decree with a certificate of non satisfaction of the court at Morgan in the then State of Madhya Bharat. It was ordered accordingly. The Judgment debtors resisted the execute on the ground that the court had no jurisdiction to execute the same as the decree was that of a foreign court and that the same had been passed ex parte. The court accepted that contention and dismissed the execution petition on December 29, 1950. On April , 1951 the Code of Civil Procedure (Amendment) Act 2 of 1951 came into force. By this Act the Code was extended to the former State of Madhya Bharat as well as various other places. Meanwhile the appellants appealed against the order of the Additional District Judge Morena dismissing the execution petition to the High Court of Madhya pradesh. The appeal was allowed. In further appeal this Court 'restored the order of the Addl. District Judge, Morena. Thereafter on February 15, 1963 the appellants filed another execution case before the Bankura Court praying for the transfer of the decree to the Molrena Court for execution. The Bankura Court again ordered the transfer of the decree of the Morena Court. The judgment debtors resisted execute on the flowing grounds : (1) that it was barred by yes judicature in view of the aforesaid decision of this Court; (2) that it was barred by section 48 of the Code of Civil Procedure; (3) that it was barred by limitation and (4) that it was not executable because it was the decree of a foreign court. The Addl. District Judge rejected the objections. The High Court in appeal agreed with the executing court that the execution petition was neiber barred by resjudicata nor was there any bar of limitation but it disagreed with that court and held that the decree was not executable as the court which passed the decree was a foreign court. The decree holders filed the present appeal by special leave. The questions which fell for consideration were : (i) whether the decree under execution was not executable by courts situate in the area comprised in the former State of Madhya Bharat; (ii) whether the decree was barred by section 48 of the Code. HELD:Per Sikri C.J., Mitter, Hyde and Bhargava JJ. (1) (a) On the date when the decree under execution was passed foreign court ' was 8 1 100 SupCII71 816 defined in section 2(5) of the Code as a court situate beyond the limits of British India which had no authority in British India and was not established or continued by the Central Government. After the amendment of the Code of Civil Procedure in 1951. 'foreign court ' under the Code means a court situate outside India and not established or continued by the authority of the Central Government. Whether we take the earlier definition or the present definition the Bankura Court could not be considered as a foreign court within the meaning of that expression in the Code. 'Foreign judgment ' is defined as the 'judgment of a foreign court '. Hence the decree under execution could not be considered as a foreign decree for the purpose of the Code. [820 D G] Accordingly the judgment debtors could not take advantage of the provision in section 13(b) of the Code under which the ex parte decree of a foreign court is not conclusive. Nor could they take advantage of section 13(d). They were served with notice of suit but did not choose to appear before the court. Hence, there was Po basis for the contention that any principle of natural justice has been contravened. Further section 13(d) was not applicable because the judgment in question was not a foreign judgment. [821 D] (b) Under Private International Law a decree passed by a foreign court to whose juri diction a judgment debtor had not submitted is an absolute nullity only if the local legislature had not conferred jurisdiction on the domestic courts over the foreigners either generally or in specified circumstances. Clause (c) of section 20 of the Code provides that subject to the limitations mentioned in the earlier sections of the Code a suit can be instituted in a court within the local limits of whose jurisdiction the cause of action wholly or in part, arises. This provision confers jurisdiction on a court in India over foreigners when the cause of action arises within its jurisdiction. There was not dispute in the present case that the cause of action for the suit which led up to the decree under execution arose within the jurisdict on of the Bankura Court. Hence, it must be held that the suit in question was properly instituted. Accordingly the decree in question was a valid decree though it might not have been executable at one stage in courts in the former Indian States [822 B F] Sardar Gurdyal Singh vs The Rajah of Faridkot, 21 I.A. 171, referred to. (c) A combined reading of sections 2(12), 38, 39 and 40 of the Code shows that a decree can be transferred for execution only to a court to which the Code apple . This is what was ruled by this Court in Hansraj Nathu Ram 's case. But by the date the transfer in the present case was made, the Code had been extended to the whole of India. It followed that the transfer of the decree in question which was not a foreign decree, to the Morena Court, was in accordance with the provisions of the Code. [823 B D] Hansraj Nathu Ram vs Lalii Raja & Sons of Bankura, , applied. Narsingh Rao Shitole vs Shri Shankar Saran & Ors., ; , distinguished. (d) Section 20(1)(b) of the Code of Civil Procedure Amendment Act, 1951 by which the Code was extended to Madhya Bharat and other areas undoubtedly protects the right acquired and privileges accrued under the law repealed by the amending Act. But even by straining the language of the provision it cannot be said that the non executabilitv of the decree within a particular territory can be considered a privilege [824 E F] 817 Nor is it a 'right accrued ' within the meaning of section 20(1) (b) of the Code of Civil Procedure (Amendment) Act, 1950. In the first peace in order to get the benefit of this provision the non executability of the decree must be a right, and secondly it must be a right that had accrued from the provisions of the repealed law. It Was difficult to consider the non executability of the decree in Madhya Bharat as a vested right of the judgment debtors. The non executability in question pertained to the jurisdiction of certain courts and not to the "rights of the judgment debtors. Further the relevant provision of the Code of Civil Proedue in force in Madhya Bharat did not confer the, right claimed by the judgment debtors. All that had happened in view of the extension of +he Code to the whole of India in 1951 was that the decrees which could have been executed only by courts in British India were made ' executable in the whole of India. The change made was one relating to procedure and jury diction. By the extension of the Code to Madhya Bharat, want of jurisdiction on the part of the Morena Court was remedied and that court was now competent to execute the decree [825 A E] Hamilton Gell vs White , Abbot vs Minister for Lands, and G. Ogden Industries Pvt. Ltd. vs Lucas, , applied. (ii)The execution was also not barred, by section 48 of the Cod . For considering the true impact of cl. (b) of sub section 2 of section 48 of the Code provisions of articles 181 and 182 of the Limitation Act, 1908 have also to be taken into consideration. These provisions clearly go to indicate that the period prescribed under section 48(1) of the Code is a period of limitation. This interpretation is strengthened by the subsequent history of the legislation. By the section 48 of the Code is deleted. It , place has not been taken by article 136 of the Limtation Act of 1963 The High Courts also are now unanimous that section 48 of tile (ode is controlled by the provisions of the Limitation Act, 1908. [828 A C] Kandaswami Pillai vs Kamappa Chetty, A I R, , Durg vs Poncham, I.L.R. [1939] All. 647, Sitaram vs Chunnilalsa, I.L.R. , Amarendra vs Manindra, A.I.R. '1955 Cal. 269, Krishna Chandra v Parovatamma, A.I.R. 1953 Orissa 13 and Ramgopal vs Sidram, A.I.R. 1943 Bom. 164 referred to. Per Jaganmohan Reddy, J. (Concurring) No question of 'a vested right or privilege arose to entitle the respondent to challenge execution proceedings in Morena Court. The decree granted by the Bankura Court was executable by the Courts governed by the same Code, by talk Court which passed it or by the Court to which it was transferred. One the Code was made applicable to the whole of India by Amendment Act 11 of 1951 the decree was no longer a foreign decree qua the Morena Court which was a court under the Code to which the Bankura Court could transfer the decree for execution. No doubt in ' Shitole 's case it was observed that section 13 of the Code creates substantive rights and not merely procedural and therefore defenses that were open to the resno dents were not taken away by any constitutional changes, but the ratio of the decision was that the Gwalior Court not being a court that passed the decree after the coming into force of Act 11 of 1951 the Allahabad Court could not execute it. The impediment did not exist now in that the Bankura Court bad transferred the decree to a court under the Code. the plea that section 48 Civil Procedure Code presents a bar of limitation was also not tenable. [831 F H] 818 Kishendas vs Indo Carnatic Bank Ltd. A.I.R. 1958 A.P. 407 Sardar Gurdayal Singh V. Raja of Firidkote, 21 I.A. 171, Rai Rajendra Sardar Maloji Narsingh Rao Shirole vs Shri Shankar Saran, ; and Hansaj Nathuram Y. Lalji Raja

The assessee in these appeals is an Hindu Undivided Family The assessment years in question are ranged from 1942 43 to 1953 54. The assessee filed its returns for these years in time. The assessee 's account books showed considerable cash credits in the name of some relations of the second respondent, the Karta of the H.U.F. The I.T.O. went into the genuineness of these cash credit entries. 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 assessment was made in pursuance of an agreement or settlement arrived between the assessee and the Deputy Director of Inspection (Investiga tion). Long after the assessments in question were finalised, the I.T.O. issued notices to the appellants under section 34(1) (a) of the Indian Income Tax Act 1922, seeking to reopen the assessments already finalised. The assessee challenged the validity of these notices of the I.T.O. The High Court allowed the writ petitions and quashed the impugned notices. The assessee alleged that there was no relevant material before the I.T.O. before he issued the notices under s 31(a) on the basis of which he could have reason to believe that any income had escaped assessment. In the writ petitions, the assessee called upon the I.T.O. 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 I.T.O produced the report made by the I.T.O. to the Central Board of Revenue under s.34(1)(a) nor the order of the Central Board of Revenue. Dismissing the appeal, HELD : (i) Before an I.T.O. can issue a statutory notice under s.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 I.T.O. and the satisfaction of the Central Board of Revenue on the basis of the reasons recorded by the I.T.O. that it is a fit case for issue of notice under section 34(1) (a) are extremely important circumstances to find out whether the I.T.O. has jurisdiction to proceed under s.34(1)(a). [104D] 103 Calcutta Discount Co. Ltd. vs I.T.O. Company District 1 Calcutta and Others, ; Chhugamal Rajpat vs section P. Chalia & Ors. 79 I.T.P 603; Sheonath Singh vs Appellate Assistant Commissioner of Income Tax, Central, Calcutta & Ors., referred to. (ii)In the present case, 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 I.T.O. and the Order received by him, must have been in the file of the I.T.O. and reason was given for not producing those records. These circumstances give rise to an adverse inference that the records in question were not produced because they did not assist the department 's case. Under the circumstances, it is not possible to come to the conclusion that the facts necessary to confer jurisdiction on the I.T.O. to proceed under s.34(1)(a) had been established. There is nothing to show on record that there was any relevant material before the I.T.O. before he issued the notices under s.34(1) (a). [105F]

% The appellants ' lands were among those sought to be acquired under the Land Acquisition Act, 1894 by means of a notification under section 4, followed by a declaration under section 6. The Notification and the declaration were challenged by way of a Writ Petition on the short ground that the appellants had not been heard before making the declaration. When the Writ Petition was heard, a statement on behalf of the Government was made, to the effect that the notification under section 6 was being withdrawn. On the basis of this statement the Writ Petition was disposed of as withdrawn. Thereafter the appellants were heard under section 5A and a fresh declaration under section 6 was issued. The appellants filed a Writ Petition and again challenged the Notification under section 4 as vitiated by mala fides and non application of mind. The High Court rejected the same. Another question raised before the High Court was that the withdrawal of the earlier declaration had the automatic effect of rendering the Notification under section 4 ineffective and infructuous. The High Court rejected that contention as well. Hence this appeal by special leave. Dismissing the appeal, this Court, ^ HELD: 1. Once there is a valid declaration under section 6, the scope of the notification under section 4 will get exhausted. This principle cannot clearly apply to a case where the declaration under section 6 proves to be invalid, ineffective or infructuous for some reason. There is no distinction between a case where a declaration under section 6 is declared invalid by the Court and a case in which the Government itself withdraws the declaration under section 6 when some obvious illegality is pointed out. [444E, 445B] 442 Girdhari Lal Amrit Lal vs State, ; ; State vs Haider Bux, ; and State vs Bhogilal Keshavlal, ; followed. State vs Vishnu Prasad Sharma, ; distinguished. Ajit Singh vs State, AIR 1972 Bombay 177 disapproved. Between the date of withdrawal of the earlier Writ Petition and the issue of the second declaration under section 6, the Government had issued a fresh Notification under section 4 for the acquisition of certain lands. The lands in the two Notifications under section 4 do not completely overlap, but some fields are common in both. No declaration under section 6 had been issued in furtherance of the second notification under section 4 when the High Court heard the matter. In respect of the lands covered by the first notification under section 4 which are also covered by or comprised in the second notification under section 4, further proceedings regarding acquisition shall be taken in accordance with law only in pursuance of the latter notification and the proceedings initiated by the first notification should be deemed to have been superseded. [445C F]

The husband of the respondent died in October 1944. For the assessment year 1945 46, his estate was assessed to income tax on a total income of Rs. 22,160. In January 1946, the respondent encashed 584 high denomination notes of the value of Rs. 5,84,000. There were proceedings for re assessment of the total income of the assessee, wherein it was stated before the Income tax Officer, on behalf of the respondent, that during the previous 30 years, her husband was giving gifts to the respondent and was also setting apart money exclusively for her and their children and, that the fund so accumulated amounting to Rs. 5,84,000 remained in a cupboard and was found after his death, and therefore, the amount was not liable to tax as the income of her husband in the previous year. The Income tax Officer disbelieved her explanation and brought the amount of Rs. 5,84,000 to tax as tre income of the respondents ' husband from an undisclosed source in the year of account 1944 45. The order was con firmed by the Appellate Assistant Commissioner who also referred to the respondent 's declaration under the High Denomination Bank Notes (Demonetisation) Ordinance that the amount was made over by the de,ceased, some time before his death, to her for her benefit and that of her 8 minor sons. The Appellate Tribunal also upheld the order of the Income tax Officer. The respondent then filed an application under section 66 (1) to state a case to the High Court. In that application she asserted that 494 out of the 584 notes were received from a Bank in Calcutta in realisation of a cheque drawn for Rs. 4,94,000 in September 1945 by her eldest son. The Tribunal rejected the application. The High Court, under section 66(2) directed the Tribunal to state a case on the question6n: Whether the Tribunal erred in law by basing its decision on a part of the evidence ignoring the 'statement made as regards the withdrawal of Rs. 4,94,000 by 494 pieces of Rs. 1,000 notes from the bank. The Tribunal, while submitting the statement of case, pointed out that the statement in the petition under section 66(1) was materially different from that made before the Income tax Officer and that the Tribunal was not invited to consider, at the hearing of the appeal, the truth of that statement. The High Court, thereafter, heard the reference and decided in favour of the assessee, holding that: (1) the Tribunal ignored a part of the declaration made by the respondent that 494 high denomination notes were received from the bank in Calcutta in September 1945; (2) no opportunity was given by the Tribunal to the respondent to clear up the discrepancies in her statements made at the time of the disclosure of the high denomination notes and before the Income tax Officer; and (3) it was not open to the Court hearing a reference under section 66(2) to hold, contrary to the decision recorded at the time when the Tribunal was directed to state the case on a question, that the question did not arise out of the order of the Tribunal. 467 In appeal to this Court, HELD : (1) In the question which was directed to be referred it was assumed that the Tribunal had before it the statement about the receipt of 494 currency notes from the bank at Calcutta. But that evidence was not before the Tribunal. No such statement was made either before the Income tax Officer, or before the Appellate Assistant Commissioner or in the appeal before the Tribunal. The statement was made for the first time in the petition under section 66(1). Even in the application it was not suggested that the finding of the Tribunal was vitiated because some relevant evidence was ignored. The order of the Tribunal was not therefore open to the objection that the appeal before it was decided on a partial review of the evidence. [471 B, D F] (2) The plea of want of opportunity was not raised before the Tribunal, and therefore, the validity of the conclusion of the Tribunal on the evidence could not be assailed before the High Court on the ground that the departmental authorities had violated the basic rules of natural justice, without raising that question before the Tribunal. [472 H] (3) The High Court was in error in holding that at the hearing of a reference pursuant to an order calling upon the Tribunal to state a case, the High Court must proceed to answer the question without considering whether it arises out of the order of the Tribunal or whether it is a question of law, or whether it is academic, unnecessary or irrelevant especially when by an erroneous order the High Court directed the Tribunal to state a case on a question which did not arise out of the order of the Tribunal. [472 D E] Observations contra in Chainrup Sampatram vs Commissioner of Income tax, West Bengal, overruled. (4) When the Tribunal was not invited to state a case on a question of law alleged to arise out of its order, the High Court could not direct the Tribunal to state it on that question. [471 G H] Commissioner of Income tax vs Scindia Steam Navigation Co. Ltd., followed. (5) The irregularities in the judgment of the High Court could not be cured by reframing the question referred to the High Court and calling for a supplementary statement from the Tribunal The power to reframe a question may be exercised only to clarify some obscurity in the question referred or to pinpoint the real issue between the tax payer and the department or for similar other reasons. It cannot be exercised for reopening an enquiry on questions of fact, which was closed by the order of the Tribunal. Similarly, a supplementary statement could be ordered only on a question arising out of the order of the Tribunal if the court is satisfied that the original statement is not sufficient to enable it to determine the question raised thereby, and, when directed the supplementary statement may be only on such material and evidence as may already 1 on record, but not included in the statement initially made. [473 B D] Keshav Mills Ltd. vs Commissioner of Income tax, Bombay North, Ahmedabad, and Narain Swadeshi Weaving Mills Y. Commissioner of Excess Profits Tax, , referred to. (6) The Tribunal was not in error in failing to raise and state a case on the question whether the amount of Rs. 5,84,000 was taxable in the accounting year 1944 45. That question was considered by the Incometax Officer and by the Appellate Assistant Commissioner and the explana 468 tion of the respondent was rejected by them, and no argument was raised before the tribunal that the amount, though taxable, was not the income of the year of account 1944 45. Further, when the High Court did not direct the Tribunal to state a case on the question, it must be deemed to have, rejected the application to refer that question, and the order of rejection having become final, this Court cannot set it aside without an appeal by the respondent. [474 B, E, H; 475 A]

In payment of an amount due from them to the respondents, the appellants sent to the respondents on August 31, 1948 a cheque which had been drawn on the Sibsagar branch of a Tripura Bank in favour of the appellants by a third party and thereafter endorsed by the appellants to the respondents. On September, 4, 1948, the respondents forwarded the cheque to their bankers, a Gauhati Bank who. in turn, sent the cheque to the Tripura Bank at Sibsagar for encashment. That bank debited the amount of the cheque to the account of the third party and sent to the respondent 's Gauhati Bank a draft which was payable at its own Head Office at Calcutta. Thereafter the respondents ' Gauhati Bank forwarded the. draft to their Head Office at Calcutta for collection but the latter never presented the draft and made no attempt to collect the amount of the draft. In the meantime, the respondents bank closed its business on September 17, 1948 and was ordered to be wound up. About a month later, the Tripura Bank also closed its business and was compelled to enter into a scheme of arrangement with its creditors. Upon the failure of their attempts to obtain payment of the draft amount from the Tripura Bank, the respondents instituted a suit against the appellants claiming payment of their dues on the ground that the cheque dated August 31, 1948 was received by the respondents as a conditional payment, and as the cheque had not been cashed, the respondents were entitled to enforce their original claim. The sub Judge dismissed the suit but the High Court in appeal reversed the decision and decree the suit. On appeal to the Supreme Court, HELD: (per Raghubar Dayal, Bachawat and Ramaswami, J J)Although the respondents originally received the cheque as a conditional payment of their dues, and if nothing else had happened, the original debt would have revived on non payment of the cheque, having regard to the laches of the respondents in the collection of the draft and the consequential prejudice to the appellants, the respondents must be deemed to have retained the draft as absolute payment of the cheque and on the payment of the cheque, the original debt stood discharged. [105 E F] Chetty on Contracts, 22nd Edn. article 1079; Addison 's Treating on the Law of Contracts, 11th Edn. p. 156; Hobkins vs Ware, ; Chamberlyn vs Delarive, ; , referred to. (per Mudholkar. J.): There was evidence to show that respondents ' bank, instead of collecting cash from the Tripura Bank at Sibsagar, sought, for reasons 0 their own, to collect the amount by draft. Furthermore, after the respondent bank went into liquidation, the respondents wrote to the Tripura Bank stating that the 104 amount of the demand draft belonged to them and not to their bankers who were only acting as their agents for collection purposes and that accordingly the draft amount should be paid to them. Thus, though the cheque endorsed by the appellants in favour of the respondents was only a conditional payment of the amount for which the cheque was drawn, the respondents, by accepting the demand draft drawn by the Tripura Bank must be deemed to have accepted the draft as a legal tender or as absolute payment of the amount payable under the cheque endorsed in their favour by the appellant. Their rights thereafter would rest only upon the demand draft and not upon the original debt which the appellant owed to them. The remedy of the respondents, therefore, could be against their own bank, or against the Tripura Bank, but not against the appellants. [108 E, 109 C]

These appeals raised an identical question. Civil Appeals Nos 4291 and 4292 of 1984 were preferred against the judgment of the Madras High Court in Writ Appeals Nos. 561 and 562 of 1983. The appellant in these two appeals, an employee in the Bank of India, which is a Nationalised Bank, was dismissed. Aggrieved, he preferred an appeal under section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 (the Tamil Nadu Shops Act). A preliminary objection was raised by the Bank to the effect that the Tamil Nadu Shops Act was not applicable to the Bank in view of the exemption contained in Section 4(1)(c) thereof. The Appellate Authority held that the preliminary objection might be decided along with the appeal. The bank thereupon filed two writ petitions in the High Court, one for a direction to the Appellate Authority to dispose of the preliminary objection before disposing of the appeal on merits, and the other, for a direction to the Appellate Authority not to proceed with the appeal. Both the Writ Petitions were allowed by a Single Judge of the High Court on the ground that the Bank was an establishment under the Central Government and consequently the provisions of the Tamil Nadu Shops Act were not applicable to it in view of the exemption contained in this behalf in section 4(1)(c). Against that decision, two writ appeals aforementioned were filed, which were dismissed by a Division Bench of the High Court by the Judgment under appeal in these two appeals. The same judgment of the High Court had disposed of Writ Petition No. 1550 of 1981 also, which had arisen out of an application under section 51 of the Tamil Nadu Shops Act made by the employees of the State Bank of India before the Commissioner of Labour for a direction that all the provisions of that Act would apply to them, being employed in the State Bank. The State Rank had contended that it was an establishment under the Central 663 Government within the meaning of Section 4(1)(c) of the Tamil Nadu Shops Act and consequently the provisions of that Act were not applicable to it. The Commissioner of labour had rejected the plea of the State Bank and held that the provisions of the Act were applicable to it. Civil Appeal No. 4329 of 1984 was preferred against the said Judgment by the State Bank 's Staff Union and Civil Appeal No. 4735 of 1984 was preferred by the employees concerned. Civil Appeal No. 1120 of 1976 was preferred by Syndicate Bank, a Nationalised Bank, against the judgment of the Andhra Pradesh High Court (Division Bench), dismissing the Writ Appeal No. 268 of 1975 and upholding the order of a Single Judge dismissing the Writ Petition No. 5973 of 1973 filed by the appellant Syndicate Bank. The services of Respondent No. 3 in the appeal had been terminated by the appellant Syndicate Bank. An appeal was preferred by the said respondent before the Labour officer under the Andhra Pradesh Shops and Establishment Act, 1966 (the Andhra Pradesh Shops Act). The Labour officer allowed the appeal which was confirmed in a second appeal by the Labour Court. Aggrieved by these orders, the Bank filed the Writ Petition above said. It was urged by the appellant Bank that it being an establishment under the Central Government within the meaning of Section 64(1)(b) of the Andhra Pradesh Shops Act, the provisions of that Act including the provisions of appeal were not applicable to it in view of the exemption contained in this behalf. Civil Appeal No. 1042 was preferred by the Syndicate Bank against the judgment of the Andhra Pradesh High Court, dismissing the Writ Petition No. 86 of 1979. Respondent No. 3 in the appeal had been dismissed by the appellant bank. He preferred an appeal which was allowed. The Bank preferred a second appeal before the Labour Court, which was dismissed. The Bank filed the aforesaid writ Petition before the High Court and urged that it being an establishment under the Central Government within the meaning of Section 64(1)(b) of the Andhra Pradesh Shops Act, the provisions of that Act were not applicable to it in view of the exemption contained in this behalf. The High Court dismissed the Writ Petition. Civil Appeal No. 837 of 1984 was preferred by the Bank of India a nationalised bank, against the judgment of the Kerala High Court dismissing the Writ Petition No. 1419 of 1978. Respondent No. 1 in the appeal had preferred an appeal under section 18 of the Kerala Shops and Commercial Establishments Act, 1960 (the Kerala shops Act) against an order passed by the appellant Bank, discharging him from service. A preliminary objection was raised by the Bank with regard to the maintainability of the appeal on the ground that it being an establish 664 ment under the Central Government within the meaning of section 3(1)(c) of that Act, the provisions thereof including section 18 above said were not applicable to it. The objection was overruled by the appellate authority. The Bank filed the original Petition abovementioned in the High Court which dismissed the same. Dismissing the Civil Appeals Nos . 4291 and 4292 of 1984, 4329 of 1984 and 4735 of 1984, and allowing the Civil Appeal Nos. 1120 of 1976, 1042 of 1979 and 837 of 1984, the Court, ^ HELD: The common question which arose for consideration in all these appeals was as to whether the Nationalised Banks and the State Bank of India were establishments under the Central Government within the meaning of the Acts above said and consequently the provisions of the said Acts were not applicable to these Banks in view of the exemption contained therein in this behalf. [670E] In view of the definition of the term "establishment" read with that of "commercial establishment" contained in the said Acts, it was not disputed even by counsel for the banks, that a bank is an establishment. Consequently, unless exempted, the provisions of the said Acts would apply to the State Bank of India and the nationalised banks also. [670F G] A conspectus of the provisions of the (Act No. 23 of 1955) and the (Act No. 5 of 1970), read with the dictionary meaning of the term "under" leaves no manner of doubt that the State Bank of India and the nationalised banks are clearly establishments under the Central Government.[677D] For the employees of these banks, it was urged that these banks were autonomous corporations having distinct juristic entity with a corporate structure of their own and could not as such be treated to be owned by the Central Government. According to counsel, the word "under" used in the expression "under the Central Government" con noted complete control in the sense of being owned by the Central Government. Disagreeing with that submission it was held that the mere fact that the State Bank of India and the nationalised banks are different entities as corporate bodies for certain purposes cannot by itself be a circumstance from which it may be deduced that they cannot be establishments under the Central Government. [677E F; 678A] 665 If the criteria laid down in Ajay Hasia, etc. vs Khalid Mujib Sehravardi & Ors. etc. ; , decided by a Constitution Bench of this Court, was applied to the facts of these cases, it is obvious that even though the State Bank of India and the nationalised banks may not be owned as such by the Central Government and their employees may not be the employees of the Central Government, they certainly will fall within the purview of the expression "under the Central Government", in view of the existence of deep and pervasive control of the Central Government over these banks. As pointed out by this Court in Biharilal Dobray vs Roshan Lal Dobray; , , the true test of determination of the question whether a statutory corporation is independent of the Government depends upon the degree of control. [679G H;682E F] In view of these considerations, no exception could be taken to the view of the Madras High Court in its judgments which were the subjectmatter of the Civil Appeal Nos. 4291 and 4292 of 1984, 4375 of 1984 and 4329 of 1984. As regards the judgment of the Kerala High Court and the judgment of the Andhra Pradesh High Court under appeal even if the decisions dealing with Article 12 of the Constitution are not made the foundation for deciding the point in issue, the principles enumerated therein particularly with regard to deep and pervasive control are relevant for deciding the point in issue, and also it was sufficient to point out that for holding that the State Bank of India and the nationalised banks are establishments under the Central Government which have a corporate structure and have freedom in the matter of day to day administration, it is not necessary that these banks should be owned by the Central Government or be under its absolute control in the sense of a department of the Government. As regards the circumstances that even though the Reserve Bank of India is mentioned specifically in the relevant clause containing exemption, neither the State Bank of India nor the nationalised banks are so mentioned, it is to be pointed out that the Reserve Bank of India was established as shareholders ' Bank under Act 2 of 1934. The Kerala Shops Act and the Andhra Pradesh shops Act, of the years 1960 and 1966, were modelled almost on the pattern of the Tamil Nadu Shops Act, which is of the year 1947. When section 4(1)(c) of this Act referred to the Reserve Bank of India in 1947, it obviously referred to it as the Shareholders ' Bank. The Reserve Bank Transfer to Public ownership Act (Act 82 of 1948) came into force on 1st January, 1949, and it was thereafter that the shares in the capital of the Reserve Bank came to belong to the Central Government. In this background, no undue emphasis could be placed on the circumstances that the State Bank of India or the nationalised banks did 666 not find mention in the provision containing exemption even though the Reserve Bank of India was specially mentioned therein. For the response stated above, the aforesaid decisions of the Kerala High Court and the Andhra Pradesh High Court deserved to be set aside.[683C H] On the view the Court had taken that the State Bank of India and the nationalised banks are establishments under the Central Government, the Court did not consider the question as to whether these banks were establishment, which not being factories within the meaning of the , were, in respect of matters deal with in the Tamil Nadu Shops Act, governed by a separate law for the time being in force in the State so as to be entitled to claim exemption under clause (f) of sub section (1) of section 4 of the said Act or of the corresponding provisions in the Kerala Shops Act and the Andhra Pradesh Shops Act. [684A B] Civil Appeals Nos. 4291 and 4292 of 1984, 4329 of 1984 and 4735 of 1984 were dismissed. Civil Appeal No. 1120 of 1976 was allowed and the judgment of the High Court in Writ Appeal No. 268 of 1975 as also the Judgment of the Single judgement the Writ Petition No. 5973 of 1973 as well as the orders of the Labour officer in the appeal filed by respondent No. 3 and of the Second Appellate Authority m the second appeal filed by the appellant Bank under the provisions of the Andhra Pradesh Shops Act were set aside. Civil Appeal No. 1042 of 1979 was allowed and the judgment of the Andhra Pradesh High Court in the Writ Petition No. 86 of 1979 as also the orders passed by the first and second appellate authorities in the appeals preferred by respondent No. 3 and the bank under the Andhra Pradesh Shops Act were set aside. Civil Appeal No. 837 of 1984 was allowed and the judgment of the Kerala High Court in Writ Petition No. 1419 of 1978 was set aside. The preliminary objection raised by the bank before the Appellate Authority in the appeal filed by respondent No. I under section 18 of the Kerala Shops Act to the effect that the said appeal was not maintainable was upheld, with the result that if the said appeal was still pending would be disposed of as not maintainable and in case it had been decided, the said decision should be treated as without jurisdiction.[684C F] The various employees whose appeals preferred under the Kerala Shops Act or the Andhra Pradesh Shops Act referred to above had been held to be not maintainable and the orders passed therein had been set aside, would be at liberty to take recourse to such other remedies as might be available to them in law. [684G] 667 Ajay Hasia, etc. vs Khalid Mujib Sehravardi & etc. ; , ; Heavy Engineering Mazdoor Union vs The State of Bihar & Ors., ; Hindustan Aeronautics Ltd. vs The Workmen and Ors., ; ; Graham vs Public Works Commissioner, ; Regional Provident Fund Commissioner, Karnataka vs Workmen represented by the General Secretary, Karnataka Provident Fund Employees ' Union and Another, [1984] II L.L.J. 503; Western Coalfields Ltd. vs Special Area Development Authority, Korba and Anr., ; ; Rashriva Mill Mazdoor Sangh, Nagpur vs The Model Mills, Nagpur and Anr., ; ; Union of India & Ors. vs N. Hargopal and Ors., ; Thote Bhaskara Rao vs The A.P. Public Service Commission and Ors., Judgment Today and Biharilal Dobray vs Roshan Lal Dobray, ; , referred to.

Appeal No. 49 of 1961. Appeal by special leave from the judgment and order dated August 11, 1960, of the Bombay High Court in Civil Revision Application No. 320 of 1959. M.C. Setalvad, Attorney General for India, Ramesh. war Nath, section N. Andley and P. L. Vohra, for the appellants. C.K. Daphtary, Solicitor General of India, Naushir Barucha and K. R. Choudhuri, for the respondent. April 21. The Judgment of the Court was delivered by HIDAYATULLAH, J. This is a tenant 's appeal, with the special leave of this Court, against an order of Naik, J., of the High Court of Bombay in Civil Revision Application No. 320 of 1959, by which he 161 disallowed certain pleas raised by the appellants. The respondent is the landlord. On September 11, 1942, the appellants had executed a rent note, under which they were in occupation of the premises in dispute. The period of the tenancy was 15 years, and it expired by efflux of time on, March 14, 1957. The landlord thereupon filed a suit on April 25, 1957, for possession of the premises, in the Court of the Joint Civil Judge (Junior Division), Erandol. Meanwhile, under section 6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (to be called the Act, in this judgment), a notification was issued, applying Part II of the Act to the area where the property is situated. The appellants claimed protection of section 12 in Part 11 of the Act, which deprived the landlord of the right of possession under certain circumstances. The Civil Judge framed three preliminary Issues, which were as follows: "1. Whether this Court has jurisdiction to try the suit? 2.Whether the plaintiff 's suit for possession of the suit property is maintainable in view of the Notification issued by the Government of Bombay on 16th August, 1958, applying Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act? If not, what order should be passed? 3.What order?". These Issues were decided against the appellants. They filed a revision petition before the High Court of Bombay, which was dismissed by the order under appeal. Naik, J., who heard the revision, followed a previous Full Bench ruling of the Bombay High Court reported in Nilkanth Ramachandra vs Rasiktal (1). In that case, Chagla, C. J. (Gajendragadkar and Tendolkar, JJ., concurring) had held that section 12 of the Act was prospective and did not apply to pending cases. Reliance was also placed by Naik, J., on the decision of this Court in Chandrasingh Manibhai vs Surjit Lal Sadhamal Chhabda (2), where the opinion of the Full Bench of the Bombay High Court was approved. (1) (2) ; 21 162 Two Questions have been raised in this appeal, and they are (1) whether by virtue of the first proviso to section 50 of the Act, all the provisions of Part 11 including section 12 were not expressly made applicable to all suits; and (2) whether by virtue of section 12(1) of the Act, which applied independently by the extension of the Act to the area where the property is situate, the suit was not rendered incompetent and the landlord deprived of his remedy of possession. Before we deal with these contentions, it is necessary to see some of the relevant provisions of this Act. The Act was not the first to be passed on the subject of control of houses, etc. Previously, there were two other Acts in force in the State of Bombay, viz., the Bombay Rent Restriction Act, 1939 and the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944. By section 50 of the Act, these Acts were repealed. The first proviso, however, enacted (omitting unnecessary parts): "Provided that all suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part 11 apply. . which are pending in any Court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act or shall be continued in such Courts, as the case may be, and all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings. " It is this proviso which, it is claimed, has retrospective effect and section 12 of the Act which is in Part II is said to apply to all pending cases, whenever the Act is extended to fresh areas. Section 12 of the Act reads as follows: "12.(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act. 163 (2)No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the . (3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court may pass a decree for eviction in any such suit for recovery of possession. (b)In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. (4)Pending disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit. Explanation. In any case where there is a dis pute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the Court under sub section (3) of section II and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. " 164 By sub sections (1) and (2) of the second section, which dealt with the extent of the application of the Act, it was provided that Parts I and IV of the Act shall extend to the pre Reorganisation State of Bombay, excluding transferred territories, and Parts II and III shall extend respectively to the areas specified in Schs. I and II to the Act, and shall continue to extend to any such area, notwithstanding that the area ceased to be of the description therein specified. By sub section (3), the State Government was authorised, by notification in the Official Gazette, to extend to any other area, any or all the provisions of Part II or Part III or of both. It would appear from this that Parts I and IV came into operation throughout the territories of the pre Reorganisation State of Bombay. Part II came to be extended to this area by the notification, and after that extension, Parts 1, 11 and IV of the Act began to apply, while the suit was pending. We are not concerned in this appeal with Part 111. The contention on behalf of the appellants is that by the latter part of the proviso to section 50, relevant portions of which have been quoted earlier, all the provisions of Part II were extended to this area, and that all pending suits and proceedings were governed, no matter when filed. The notification extending Part II of the Act to this area had, it is contended, also the same effect independently of the first proviso to section 50. It is contended, therefore, that sub section (1) of section 12, which prohibits a landlord from recovering possession of any premises so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases, if any, and is also observing the other conditions of the tenancy in so far as they are not inconsistent with the provisions of the Act, applies to the present case and the tenants are protected. It is also contended that if the first proviso to section 50 was limited to such suits only as were pending on the date of the passing of the Act, section 12(1), on its own terms, is applicable to the present case, and being retrospective in character, leads to the same result. These two contentions were apparently raised in the Court of the Civil Judge and before the High 165 Court. The High Court, however, ruled that section 12 was prospective in character and did not apply to pending suits or proceedings. It is contended by the learned Attorney General what the construction placed by the High Court upon the first proviso to section 50 is erroneous. Though he section concedes that the proviso must be read as qualifying what the substantive part of section 50 enacts, he urges that the proviso goes beyond that purpose and enacts a substantive law of its own. He relies upon the following observations of Lord Loreburn, L. C., in Rhondda Urban Council vs Taff Vale Railway (1), where a pro viso to section 51 of the Railway Clauses Consolidation Act, 1845, was under consideration: "It is true that section 51 is framed as a proviso upon preceding sections. But it is also true that the latter half of it, though in form a proviso, is in substance a fresh enactment, adding to and not merely qualifying that which goes before.", and contends that the latter portion of the proviso, in question, being a substantive enactment, comprehends not only those suits which were pending on the date of repeal but also those cases, which came within the language of the latter part of the proviso, whenever the Act was extended to new areas. On behalf of the landlord, the learned Solicitor General argues that the proviso should be read as a proviso only to the substantive enactment, and must be taken to qualify the substantive portion of section 50 only to the extent to which it makes an exception to the repeal and but for the proviso would be governed by the repealed Acts. He relies upon Craies on Statute Law, 5th Edn., pp.201 202, where the following passage occurs: "The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and (1) , 258.166 properly construed without attributing to it that effect. " He also relies upon the following observations of Lush, J., in Mullins vs Treasurer of Surrey (1): "When one finds a proviso to a section, the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso." The law with regard to provisos is well settled and well understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, 'a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as savings clauses, in which cases they will not be construed as controlled by the section. The proviso which has been added to section 50 of the Act deals with the effect of repeal. The substantive part of the section repealed two Acts which were in force in the State of Bombay. If nothing more had been said, section 7 of the Bombay General Clauses Act would have applied, and all pending suits and proceedings would have continued under the old law, as if the repealing Act had not been passed. The effect of the proviso was to take the matter out of section 7 of the Bombay General Clauses Act and to provide for a special saving. It cannot be used to decide whether section 12 of the Act is retrospective. It was observed by Wood, V. C., in Fitzgerald vs Champneys(2) that saving clauses are seldom used to construe Acts. These clauses are introduced into Acts which repeal others, to safeguard rights which, but for the savings, would be lost. The proviso here saves pending suits and proceedings, and further enacts that suits and proceedings then pending are to be transferred to the Courts designated in the Act and are to continue under the Act and any or all the provisions of the Act are to apply to them. The learned Solicitor General contends that the savings clause enacted by the proviso, even if treated as substantive law, must be taken to (1) , 173.(2) ; E.R. 958.167 apply only to suits and proceedings pending at the time of the repeal which, but for the proviso, would be governed by the Act repealed. According to the learned Attorney General, the effect of the savings is much wider, and it applies to such cases as come within the words of the proviso, whenever the Act is extended to new areas. These arguments are interesting, and much can be said on both Bides, particularly as the Legislature has by a subsequent amendment changed the proviso. But, in our opinion, they need not be considered in this case, in view of what we have decided on the second point. The second contention urged by the learned Attorney General that section 12(1) applied from the date on which the Act was extended to the area in question is, in our opinion, sound. Section 12(1) enacts a rule of decision, and it says that a landlord is not entitled to possession if the tenant pays or shows his readiness and willingness to pay the standard rent and to observe the other conditions of the tenancy. The word "tenant" is defined in the Act to include not only a tenant, whose tenancy subsists but also any person remaining, after the determination of the lease, in possession with or without the assent of the landlord. The present appellants, as statutory tenants, were within the rule enacted by section 12(1) and entitled to its protection, if the sub section could be held applicable to this suit. Both the Bombay High Court and this Court had, on the previous occasions, observed that section 12 of the Act was prospective. In those cases, the learned Judges were concerned with the interpretation of sub sections (2) and (3) only, which, as the words of those subsections then existing show, were clearly prospective, and were applicable to suits to be instituted after the coming into force of the Act. But a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, 168 have been given retrospective operation, if the intention of the legislature is apparent. This is more so, when Acts are passed to protect the public against some evil or abuse. (See Craies on Statute Law, 5th Edn., p. 365). The sub section says that a landlord Shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the standard rent etc., and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned. The Explanation to section 12 makes it clear that the tenant in case of a dispute may make an application to the Court under sub section(3) of section 11 for fixation of a standard rent and may thereafter pay or tender the amount of rent or permitted increases specified in the order to be made by the Court. The tenants, in the present case, have expressed their readiness and willingness to pay, and it is clear that they fulfil the requirements of sub section(1) of section 12, and the landlord is, therefore, not entitled to the relief of possession. Both the High Court as well as this Court in their previous decisions, referred to above, were not called upon to interpret sub section (1) of the Act. They were dealing with appeals arising out of decrees already passed. The observations that section 12 was prospective were made with reference to sub sections (2) and (3) and not with respect to sub section(1), which did not even find a mention in those judgments. The question then was whether section 12 by itself or read with the proviso to section 50 was applicable retrospectively to appeals. That is not the question which has arisen here. Then again, section 12(1) enacts that the landlord shall not be entitled to recover possession, not "no suit shall be instituted by the landlord to recover possession". The point of time when the sub section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the sub section applies equally to suits pending when Part 11 comes into force and those to be filed subsequently. The contention of the respondent that the operation of section 12(1) 169 is limited to suits filed after the Act comes into force in a particular area cannot be accepted. The conclusion must follow that the present suit cannot be decreed in favour of the respondent. The decisions of the High Court and the Court of First Instance are thus erroneous, and must be set aside. In the result, the appeal is allowed, and the two preliminary Issues are answered in favour of the appellants. Under the orders of this Court, the judgment of the Civil Judge was stayed. The suit will now be decided in conformity with our judgment. The respondent shall pay the costs of this Court and of the High Court. Appeal allowed.

On the expiry of the appellant 's tenancy for the occupation of the premises indispute, the respondent who was the landlord filed a suit for possession of the premises. Meanwhile under section 6 of the Bombay Rents, Hotel and Lodging House Rates Control , a notification was issued applying Part 11 of the Act to the area where the property was situated. The appellants claimed protection of section 12, Part 11 of the Act, which deprived the landlord of the right of possession under certain circum stances. The Court of first instance decided the suit against the appellant and the High Court ruled that section 12 was prospective in character and did not apply to pending suits or proceedings. On appeal by special leave Held, that the point of time when sub section (1) of section 12 operates is when the decree for recovery of possession has to be passed. The language of the sub section which provides that the landlord is not entitled to recover possession if the tenant pays or shows his willingness to pay the standard rent and to observe the other conditions of the tenancy is such that it applies equally to suits pending when Part It comes into force and those to be filed subsequently and is not limited only to suits filed after the Act comes into force in a particular area. A section may be prospective in one part and retrospective in another part. Sub sections (2) and (3) of section 12 were clearly prospective but the words of the first sub section showed retrospective operation. Nilkanth Ram Chandra vs Rasiklal, and Chandra Singh Manibhai vs Surjitlal Sudhamal Chhabda, ; , distinguished. Rhonda Urban Council vs Taff Vale Railway, , Mullins vs Treasury of Surrey, and Fitzgerald vs Champneys, ; , referred to.

The respondent a statutory body corporate constituted under the Bombay Port Trust Act, 1879 a 'State Act ' who had appointed an Assistant Estate Manager as their power of attorney holder to lease out its property from time to time, terminate the leases and to lay action for ejectment, etc.; leased out the suit property to the appellant. 826 The appellant was served with a notice under Section 106 read with Section 111(h) of the terminating the tenancy in terms of the covenants of lease and directing delivery of possession of the demised property giving one month 's time from 22nd January 1975. The notice was served on the tenants on January 28, 1975 and became effective from 28th February, 1975. In the meanwhile, the Major Port Trust Act, 1963, a 'Central Act ' was made applicable to the Bombay Port Trust by operation of Section 133(2A) thereof with effect from February 1, 1975. After the expiry of one month from the suit notice an ejectment application was filed under Section 41 of the Bombay as amended under the Maharashtra 1963 Amendment Act, and a direction was sought for delivery of possession. After the Maharashtra Amendment Act 19 of 1976 came into force suits were laid against the three other tenants of the demised property. The respondent pleaded in the said suit that it was a successor ininterest of the Port Trust Board under the State Act, and was entitled to eject the tenants and to take possession of the demised portions. The appellant contended in his written statement that the suit was not maintainable since the State Act ceased to be operative with effect from February 1, 1975, the quit notice issued under Section 106 read with Section 111(h) of the became ineffective and without determining the tenancy afresh the suit was not validly laid. It was further submit ted that the respondent had promised that on deposit of a certain amount which the appellant tenant did, he would be given to lease a portion in the reconstructed building, and consequently the respondent was estopped by promissory estoppel to have the tenant ejected. One suit was dismissed on the ground that the tenancy was not duly determined as per law, while the other suits were decreed. No appellate forum had been prescribed under the Maha rashtra Amendment Act of 1963 but a substantive suit on the original side provided was available, but such a right to appeal was incorporated by the Maharashtra Amendment Act, 19 of 1976. The appellant filed a writ petition in the High Court under Articles 226 and 227 of the Constitution and the other tenants filed regular appeals to a Bench of two Judges of the Small Causes Court, which were pending. 827 In the writ petition of the appellant petitioner challenged the vires of sections 2,3 and 4 of the Maharashtra Amending Act, 1963 introducing Section 42(A) in Chapter VII of the and deleting Sections 45 to 47 from the Principal Act and of amendment of SectiOn 49 thereof; as well as Section 46(2) of the as amended by the Maharashtra Amendment Act of 1976 as offending Article 14 of tile Constitution. When the matter came up before the Single Judge of the High Court it was referred to the Division Bench, which upheld the constitutional validity of the said sections and remitted the matter to the Single Judge for disposal on merits. The Single Judge considered the matter and negatived the two points raised by the appellant petitioner regarding validity of the notice terminating tile tenancy, and also the plea of promissory estoppel, and dismissed the writ petition. The appellant appealed to this Court by special leave under Article 136. It was contended on behalf of the appel lant that the quit notice issued under Section 106 read with Section III(h) of the was invalid and that by issue of the said notice no right accrued to the respondents and that the termination of tenancy became operative only on expiry of one month given thereunder i.e. February 28, 1975, by which date the State Act became inop erative, as from February 1, 1975 the Central Act had come into force; that termination of tenancy was an act inter vivos by operation of Section 106 read with Section III(h) of the , and that under Section 109, the respondent not being a living person, was not entitled to the benefit of the quit notice as its operation was not saved by Section 2(d) and Section 5 of the said Act. It was also contended that the respondents were estopped from ejecting the appellant and other tenants who were similarly situated on the principle of promissory estoppel, as the Estate Manager of the respondent in his letter dated April 3, 1972 directed the tenant to deposit Rs. 11,000 for grant of tenancy after reconstruction of the flats therein and placing reliance thereon the tenants having deposited the amount demanded from them and acted upon the promise to their detriment, the respondents shall be declared to be estopped from ejecting the tenants from the demised respec tive portions leased out to them. The appeal was contested on behalf of the respondents by contending that when right, title, and interest in immovable property stood transferred by operation of law, the spirit behind Section 109 of the 828 will apply; and the successor in interest would be entitled to the rights of the predecessor and that as the Estate Manager had no authority to give a promise, and that even assuming that he had such a power, it was a conditional one, namely, approval by the Board, and that the Board having resolved to reject the claim, and on reconstruction decided to allot to its own employees out of administrative necessity, the principle of promissory estop pel cannot be applied. Dismissing the appeal, this Court, HELD: 1. When right, title and interest in immovable property stand transferred by operation of law, the spirit behind Section 109 of the per force would apply and successor ininterest would be entitled to the rights of the predecessor. This is what the Single Judge of the High Court has held and the view is approved as correct. The notice terminating the tenancy of Vasantkumar would enure to the benefit of the respondent and it could be availed of by the respondent to lay the suit for ejectment. [836H; 837A B] N.P.K. Raman Menon vs Collector of Malabar, AIR 1924 Madras 908; Trimbak Damodhar Raipurkar vs Assaram Hiraman Patil & Ors., [1962] Suppl. 1 SCR 700; Hitkarini Sabha vs The Corporation of City of Jabalpur & Anr., and Lower vs Sorrell, [ 1963] 1 Queen 's Bench Division 959, referred to. Gurumurthappa vs Chickmunisamappa, AIR , over ruled. Halsbury 's Laws of England, 4th Edition, Vol. 27, p. 193; Hill and Redman in Law of Landlord and Tenant, 17th Edition Vol. I, p. 488, p. 405; Mulla Transfer of Property Act, 6th Edition, p. 676 and Chitaley 's , 4th Edn. 1969, Vol. III, Note 35, referred to. 2(i) The functionaries under both the State Act and the Central Act are the same. The notice was issued by the Assistant Estate Manager by virtue of his official function as power of attorney agent on behalf of the respondent The Board of Trustees have the right to terminate the lease under Section 26 of the State Act and these rights stood transferred and vested under Section 29(1) of the Central Act. Therefore the termination of tenancy and laying the action for ejectment are integrally connected with their official capacity. There is a reasonable connection between the impugned acts and officials duty. Thereby, they are the acts done under the Central Act. [839C E] 829 2(ii) The notice under Section 106 and Section III(h) of the is an act done or purported to have been done in the official capacity as Power of Attorney holder/Assistant Estate Manager on behalf of the respondent, Board of Trustees; the right to lay the suit on expiry of one month 's period prescribed in the notice, namely, on or after February 28, 1975 had accrued to the respondent. It is an act done or purported to have been done under the Central Act in exercise of the official function. The right to lay the suit on determination of the tenancy by notice dated January 20, 1975 under the State Act is a transfer of inter est by operation of Section 29(1) of the Central Act, to the respondent under Section 109 of the . Thereby the quit notice is valid. The suit laid, pursu ant thereto, is valid and legal. Accordingly order of eject ment passed by the Small Cause Court is perfectly legal and unassailable. [840B E] Commissioner for the Court of Calcutta vs Abdul Rahim Osman & Co.; Trustees of Port of Bombay vs The Premier Automobiles Ltd. & Anr., ; , referred to. 3(i) The doctrine of promissory estoppel is now well established one in the field of administrative law. This principle has been evolved by equity to avoid injustice. It is neither in the realm of contract nor in the realm of estoppel. Its object is to interpose equity shorn of its form to mitigate the rigour of strict law. This doctrine would be displaced in a case where equity would not require that the Government should be held bound by the promise made by it. But the Government must be able to show that in view of the facts as have been transpired, public interest would not be prejudiced. Where the Government is required to carry out the promise the Court would have to balance, the public interest in the Government 's carrying out the promise made to the citizens, which helps citizens to act upon and alter ' his position and the public interest likely to suffer if the promises were required to be carried out by the Government and determine which way the equity lies. [841B; 842G H; 843A] 3(ii) The doctrine of promissory estoppel would equally apply to a private individual as well as a public body like a Municipal Council. It cannot be applied in the teeth of an obligation or liability imposed by law. It cannot be invoked to compel the Government to do an act prohibited by law. There may be no promissory estoppel against exercise of legislative functions. [843B C] 3(iii) Promissory estoppel cannot be used for compelling the 830 Government or a public authority to carry out a representa tion or promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public authority to make. It being an equitable doctrine it must yield place to the equity, if larger public interest so requires and if it can be shown by the Government or public authority, for having regard to the facts as they have transpired that it would be inequitable to hold the Government or public authority to the promise or representation made by it. [844B D] 3(iv) Promissory estoppel should not be extended, though it may be rounded on an express or implied promise stemmed from the conduct or representation by an officer of the State or public authority when it was obtained to play fraud on the Constitution and the enforcement would defeat or tend to defeat the Constitutional goals. [844D] Union of India vs Indo Afgan Agencies, ; ; Century Spinning and Manufacturing Co. Ltd. vs Ulhasnagar Municipal Council, [1970] 3 SCR 854; Motilal Padampat Sugar Mills vs State of Uttar Pradesh, ; ; Jeet Ram vs State of Haryana, ; ; Union of India vs Godfrey Philips India Ltd., [1985] Supp. 3 SCR 123 at 144; State of Bihar vs Usha Martin Industries Ltd., [1987] 65 STC 430 and Asstt. Commissioner of Commercial Taxes, Dharwar vs Dharmendra Trading Co. etc. ; , , referred to. Before making the public authority responsible for act of its subordinate, it must be established that the subordinate officer did in fact make the representation and as a fact, is competent to make a binding promise on behalf of the public authority or the Government, ultra vires acts do not bind the authority and insistence to abide by the said ultra vires promise would amount to putting premium and legitimacy to ultra vires acts of subordinate officers. [847D E] Howell vs Falmouth Boat Construction Co. Ltd, and Attorney General for Ceylon vs A.D. Silva, , referred to. The letter dated April 3, 1972 written by the Estate Manager is a conditional one, namely, that on fulfilling certain conditions indicated in that letter he would make recommendation to the Board for grant of lease, condition precedent being that the tenant would deposit the required sum of about Rs. 11,000 and odd with the respondent. Un doubtedly, the tenants completed that part of the obliga tion. Thereafter it was placed before the Board, who by resolution dated 831 September 10, 1974, considered. ,it, but was rejected on the ground that after reconstruction the building would be required by its staff. [845C E] 6. The Estate Manager is merely an intermediary to collect the material between the respondent Port Trust and its tenants and to place the material for consideration to the Board. Thereby the Estate Manager is not clothed with any authority much less even ostensible authority to create a promise so as to bind the respondent, that the respondent would allot the rooms on reconstruction to the tenants. The promise of him is an ultra vires act, though conditional and, therefore. it does not bind the respondent. Though the executive necessity has not been satisfactorily established, the doctrine of promissory estoppel cannot be extended in favour of the appellant and other tenants. [847E G] 7. When a constitutional question has been raised and does arise for consideration, unless there is a fulldressed argument addressed by either side before this Court no satisfactory resolution could be made. Mere paraphrasing the judgment of the High Court in particular when it relates to the local laws is no proper decision making. [849A B]

% The respondent landlord filed an application in the Court of the Rent Controller under Section 13 A of the East Punjab Rent Restriction (Amendment) Act, 1985, seeking eviction of the appellant tenant on the ground of arrears of rent and for his own use and occupation. It was contended that the respondent retired from the service of the Government of India, Ministry of Defence on 20th May, 1949 and that his service was thereafter transferred to the Ministry of Rehabilitation from where he was discharged on 30th November, 1965 on the abolition of the Ministry, and that as he had no other house within the municipality he wanted the house in question for residence. On receiving the summons of the eviction petition the appellant tenant sought leave to contest the application on the ground that he was inducted as a tenant in the premises in the year 1968, and that Section 13 A of the Act did not entitle the landlord to maintain the eviction petition. The Rent Controller after recording the evidence of the parties negatived the contention of the tenant, allowed the application, and directed the tenant to vacate the premises within one month from the date of the order. The appellant preferred a revision application under Section 18 A of the Act, but the High Court holding that the respondent being a 'specified landlord ' at the relevant time i.e. within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 was entitled to get an order of eviction of the tenant from his house, upheld the eviction order of the Rent Controller and dismissed the revision petition. The tenant appealed to this Court by special leave. 834 Allowing the appeal, ^ HELD: 1. The respondent landlord did not satisfy the basic requirement of section 2(hh) of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 and so he was not competent to maintain the application under section 13 A of the said Act. [842C] 2. Section 13 A of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 in clear terms enjoins that: "Where a specified landlord at any time within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the said Act makes an application to recover the possession of the building or scheduled building, the Controller will direct the tenant to deliver possession of the said house to him". Therefore to be entitled to have the benefit of Section 13 A of the Act the landlord respondent will have to fulfil the first qualification i.e. he must be a specified landlord in respect of the house in question on the date of his retirement from the service of the Union i.e. in 1963. [840F H] 3. To get the benefit of the summary procedure provided in Section 13 A the ex servicemen must be a specified landlord at the time of his retirement from service of the Union as provided in Section 2(hh). [842B] 4. The respondent landlord in the instant case, retired from the service of the Union in 1965, and the house in question was let out to the appellant tenant in 1968. The respondent was thus not a landlord qua the premises and the tenant, on the date of his discharge from service entitling him to avail of the benefit of the provisions of Section 13 A of the East Punjab Act. [842C D] 5. The Rent Controller has not at all considered the question whether the landlord is a specified landlord, but simply held that the landlord was discharged from service on the abolition of the Department of Rehabilitation and so he was covered under the definition of specified landlord as given under section 2(hh) of the Act. The Single Judge of the High Court without considering the provisions of Section 2(hh) of the Act held that the application under Section 13 A by a specified landlord seeking ejectment of a tenant was competent within one year of the commencement of the amended Act even if there existed no relationship of the landlord and tenant on the date of the retirement of the specified landlord. This view is on the face of it erroneous. The 835 judgments and orders of the Courts below are set aside. [841F H; 842A B, D] A Sohan Singh vs Dhan Raj Sharma, [l983] 2 R.L.R. 465 and Bhanu Aththayya vs Comdr. Kaushal & Ors., [1979] 2 R.C.J. 338, approved. Mrs. Winifred Ross and Anr. vs Mrs. Ivy Fonseca and Ors., A.I.R. 1984 SC 458, distinguished.

The respondent Board of Trustees of the Port of Bombay is a statutory authority, and as such has been exempted from the operation of the Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947. The appellant has been the lessee of the respondent since about 1932 in respect of part of the original plot No. 4 (now plot 5B) which adjoins plot No. 6 tenanted by M/s Bombay Bharat & Swadeshi Rice Mills. In or about 1933 34, M/s Bombay Bharat & Swadeshi Rice Mills took over the appellant, and a rice mill was started on appel lant 's part of plot No. 4 and plot No. 6. In December 1957, the Town Planning Scheme No. 1 in Bombay City came into force, and the original plot No. 4 was reconstituted into final plot No. 5. In or about 1963 the respondent sub divided plot No. 5 into final plot 5A and final plot 5B, and as a result of the sub division M/s Dhanji Mavji became the tenant/occupant of a major portion of plot 5B, In 1970 71 the respondent agreed to let the entire plot 5B, including the portion which had been let to and was in possession of the appellant since 1933, to Dhanji Mavji. The appellant objected to the offer made to Dhanji Mavji but the respondent asserted that as Dhanji Mavji had been in possession of the major portion of plot No. 5B, it agreed to let the entire plot to them. In the premise, the respondent purported to terminate the tenancy of the appel lant in respect of its . portion of plot 5B, and later filed suit for eviction. The Trial Court dismissed the suit hold ing that it would be legitimate to infer that the letting was for a manufacturing purpose and hence the notice of termination was bad. The appellate court reversed that decision. Aggrieved thereby, the appellant filed a writ petition under Article 227 of the Constitution. The High Court accepted the finding of the appellate court that the notice of ejectment was valid notice and there was no waiver of notice. 752 Before this Court, it was contended on behalf of the appellant that (1) the exemption from the operation of the Rent Act was given to the Port Trust Authority on the as sumption that it would act in public interest and would not behave like ordinary landlords; (2) the action of the re spondent in terminating the appellant 's contractual tenancy had a public law character attached to it and was according ly subject to judicial review; (3) every action of the respondent which was 'State ' within Article 12 of the Con stitution, whether it be in the field of contract or any other field, was subject to Article 14 of the Constitution and must be reasonable and taken only upon lawful and rele vant grounds of public interest; (4) the respondent 's estab lished rational/policy was to offer/allot a final/reconsti tuted plot for development to the existing occupants thereof as joint tenants; and (5) the eviction of the appellant was not necessary in the public interest for the proper develop ment of the plot as required by the Town Planning Scheme. On behalf of the respondent it was contended that (1) the onus was entirely on the appellant to establish that the Bombay Port Trust had terminated the tenancy or taken the proceedings in eviction not in public interest but for a collateral purpose or mala fide or that it had acted in a manner contrary to the provisions of Article 14; (2) since there was no obligation or duty cast upon the Bombay Port Trust to provide accommodation, there could be no question of acting in governmental character, and such a body stood on the same footing as any other citizen and would, in respect of such activity, not be subjected to public law duty; (3) the respondent 's dealing with tenants was a con tractual dealing and it was not a matter for public law domain and was not subject to judicial review; and (4) it was the policy of the respondent to allot the entire re constituted plot to one person who was occupying the major portion of such plot, for its proper development. Dismissing the appeal, it was, HELD: Per Sabyasachi Mukharji, J., (Kania, J. agreeing) (1) Bombay Port Trust being a public body, even in respect of its dealing with its tenants, it must act in public interest, and an infraction of that duty is amenable to examination either in civil suit or in writ jurisdiction. [761G] Rampratap Jaidayal vs Dominion of India, [1952] 54 Bom. L.R. 927; and Baburao Shantaram More vs The Bombay Housing Board, [1954] V SCR 572, referred to. 753 (2) Where any special right or privilege is granted to any public or statutory body on the presumption that it must act in a certain manner. such bodies must make good such presumption while acting by virtue of such privilege. Judi cial review to oversee if such bodies are so acting is permissible. ]762D E] Radhakrishna Agarwal & Ors. vs State of Bihar & Ors. , ; and Life Insurance Corporation of India vs Escorts Ltd. & Ors., [1985] 3 Supp SCR 909, referred to. (3) The field of letting and eviction of tenants is normally governed by the Rent Act. The Port Trust is statu torily exempted from the operation of the Rent Act on the basis of its public/Governmental character. Every action/activity of the Bombay Port Trust which constituted "State" within Article 12 of the Constitution in respect of any right conferred or privilege granted by any statute is subject to Article 14 and must be reasonable and taken only upon lawful and relevant grounds of public interest. [762E F; 763A B] S.P. Rekhi vs Union of India, ; and M.C. Mehta & Anr. vs Union of India & Ors. , [1987] 1 SCC 395, referred to. (4) Where there is arbitrariness in State action, Arti cle 14 springs and judicial review strikes such an action down. Every action of the Executive authority must be sub ject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14. [763C] All exercise of discretion or power by public authori ties as the respondent, in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords must be judged by that standard. [763H; 764A] If a governmental policy or action even in contractu al matters fails to satisfy the test of reasonableness, it would be unconstitutional. [764A B] E.P. Royappa vs State of Tamil Nadu, ; ; Maneka Gandhi vs Union of India, [1978] 2 SCR 621; R.D. Shetty vs The International Airport Authority of India & Ors., ; ; Kasturi Lal Lakshmi Reddy vs State of J & K, ; and 754 Ajay Hasia vs Khalid Mujib Sehravardi, ; , referred to. (7) Governmental Policy would be invalid as lacking in public interest, unreasonable or contrary to the professed standards and this is different from the fact that it was not done bona fide. [764B C] (8) There is always a presumption that a governmental action is reasonable and in public interest. It is for the party challenging its validity to show that the action is unreasonable, arbitrary or contrary to the professed norms or not informed by public interest, and the burden is a heavy one. [764C D] (9) Judicial review is not concerned with the decision, but with the decision making process. Unless this restric tion on 'the power of the court is observed, the court under the guise of preventing the abuse of power, would be itself guilty of usurping power which does not belong to it. [765E F] (10) The Court cannot really substitute a decision reached by a fair procedure keeping the policy of the re spondent in mind by a different decision only on the ground that the decision which appeals to the court is a better one. [765G] Council of Civil Service Unions vs Minister for the Civil Service, ; Chief Constable of the North Wales Police vs Evans, ; In re Pres ton vs I.R.C., and Regina vs Chief Consta ble of the Merseyside Police, , referred to. (11) The Bombay Port Trust, perhaps, was justified in coming to the conclusion that the only possible way to develop the properties of the Bombay Port Trust in compli ance with the Town Planning Scheme was by allotting plots to holders of major portions thereon. Such a decision cannot be faulted. [766E F] (12) Upon the facts of the instant case, there was an implied obligation in respect of dealings with the tenants/occupants of the Port Trust Authority to act in public interest/purpose. That requirement is fulfilled if it is demonstrated that the Port Trust authorities have acted in pursuance of a policy which is referable to public pur pose. Once that norm is established whether that policy is the best policy or whether another policy was possible, is not relevant for consideration. [767E F] 755 (13) Under the constitutional scheme of this country, the Port Trust Authorities were required by relevant law to act in pursuance of public purpose. This Court is satisfied that they have proceeded to so act. [767G] Per section Ranganathan, J. (Concurring) On the facts of the instant case, the action of the Port Trust was not improper and there are no grounds for inter ference. [768F]

Appellant herein was a lessee of the Respondent in respect of a shop since 1961, at a monthly rent of Rs.25 later increased to Rs.30 and in addition to the said rent, he was to pay house tax to the municipality. Respondent landlord filed a suit for eviction against the appellant on the ground of default in payment of rent for the period 1.2.1966 to 31.12.66. The appellant filed an application in that suit under sec. 13(4) of the Act (as it stood prior to amendment) for determination of arrears of rent and the interest payable thereon. The Trial Court determined the arrears of rent and the interest payable by the appellant. Consequent upon the appellant 's depositing the same, the suit was dismissed in terms of sec. 13(7) of the Act. The appellant continued depositing the rent in Court. Thereafter the Respondent filed another suit on 21.5.75 alleging that the appellant has again committed default in payment of rent and should therefore be evicted. The appellant received a notice calling upon him to appear in Court on 10.2.76. Since he had not received a copy of the plaint, he was granted time till 30.3.76 to file his written statement. In the written statement he refuted his liability to pay the rent and also moved an application u/s 13(3) & 13(4) of the amended Act praying that if in the course of his depositing the rent in court, there has been any omission, due to oversight the Court may determine the arrears of rent & interest payable thereon and permit him to deposit the same in court. It may be pointed out here that before the appellant was served with the notice of the suit, the Act was amended on 29.9.75 by Amending Ordinance No. 26 of 75 whereby a new section 13 A was added to the Act. The object of the newly added section was to provide benefit to all tenants against whom suits for eviction on the ground of default in paying the rent were pending by making a provision that the Courts shall not pass any decree in favour of landlords on that ground if the 193 tenant makes an application within a stipulated period and deposits in court the total rent due. The Trial Court passed orders on the application u/s 13(3) & 13(4) and called upon the appellant to deposit a sum of Rs.335 towards arrears of rent and interest before 28.7.76. The appellant complied with the order but despite that, the Trial Court passed a decree for eviction and the appellate Court confirmed the same. In the second appeal preferred by the appellant, he contended that the Trial Court ought to have treated the application filed by him u/s 13(3) & 13(4), as one filed u/s 13 A of the Act and given the benefit thereof to him. Even though the High Court found that the appellant having re ceived the notice of the suit late and hence was not in a position to make the application within 30 days, declined to interfere because in its view the Act has not provided for any relief to tenants placed in the situation in which the appellant was placed. The High Court held that the Act contains a lacuna but the same can be remedied by the legis lature and not by Courts and as such the appellant cannot claim the benefit of sec. 13 A of the Act. The suit having been filed prior to the coming into force of Amending Act, the same will be governed by the provisions of unamended Act. On the dismissal of the second appeal by the High Court, the appellant has filed this appeal after obtaining special leave. Before this Court two questions arose for consideration viz: (1) whether the appellant is not entitled to the bene fit of sec. 13 A because he had not filed an application within 30 days from the date of commencement of the Act, and (2) even otherwise whether by reason of the earlier default in payment of rent for the period 1.2.1966 to 31.12.1966, the appellant is disentitled under the Act to claim the benefit of sec. 13 A. Allowing the appeal, this Court, HELD: Section 13 A has been given overriding effect. Subsection (1) of section 13 A mandates all courts not to pass any decree in favour of a landlord for eviction of a tenant on the ground of nonpayment of rent, if the tenant makes an application as per clause (b) and pays to the landlord or deposits in court within the prescribed time the total amount of rent in arrears together with interest and full costs of the suit. [199B C] 194 The intention of the legislature to confer the benefit of section 13 A to all tenants, provided actual eviction had not taken place could further be seen by the terms of sec tion (c). [199D E] It would be unreasonable and inequitable to hold that the legislature had intended to confer the benefit of sec. 13 A only to those tenants who had received notice of the suit filed against them before the Ordinance came into force and not to those tenants against whom proceedings were pending in the sense they had been instituted but who had no notice of the pendency of the suit. [199F G] Even though it was found that some arrears had to be paid, the appellant cannot be denied the benefit of sec. 13 A because the section has been given overriding effect in so far as suits and other proceedings which were pending on the date of the promulgation of the ordinance and as such the proviso to sub sec. (6) of sec. 13 of the amended Act would not disentitle the appellant to claim the benefit of sec. 13 A. [202H; 203A] B.P. Khemka Pvt. Ltd. vs V.B.K. Bhowmick; , , referred to.

This petition for special leave to appeal was filed against the judgment and order of the High Court, whereby the High Court had held that the petitioner was not a sub tenant and as such he was bound by the decree passed against the tenant for eviction. The petitioner challenged before this Court the finding of the High Court and contended that he was a sub tenant with the knowledge and consent of the landlord and as such the decree of eviction passed against the tenant did not bind him because in the suit he had not been a party. He should have been made a party to the suit. Dismissing the petition, the Court, HELD: The High Court was right. The attention of the Court was drawn to an agreement of 1st September, 1966, with the contention that that was an arrangement of sub letting and in that document one of the attesting witnesses was the landlord himself, and, therefore, the subletting was done with the knowledge and consent of the landlord and, as such, was valid. [1088G] One of the attesting witnesses to the said agreement was Md. Ali, the respondent herein, who was at the relevant time the landlord, now represented by his legal representatives in this petition. On a construction of the different clauses of the aforesaid document, the Court was of the opinion that this was an agreement of the business of the tenant. It was not and could not be construed as an agreement of subtenan cy. There was no parting of possession of the premises. There was only a right to "manage" the business, looking after the existing business with fixed monthly payments and this could not be construed as an agreement of sub tenancy. Therefore, though the landlord had knowledge of the docu ment, it could not be said to be consent to an agreement 1088 of sub tenancy. The attention of the Court was drawn to section 2(4) on the expression 'tenant ' in the West Bengal premises Tenancy Act, 1956. That definition did not affect the position of the petitioner in this case as there was no sub tenancy in the case. [1090C E, G] The High Court was right in the view it took. [1088F] M/s. Girdhar Lal & Sons vs Balbir Nath Mathur and oth ers, , referred to.

The suit out of which the present appeal arose was one for redemption of some occupancy lands, owned and mortgaged by two brothers, S and A, the Khata of the lands standing in the name of S as the registered occupant under section 74 of the Bombay Land Revenue Code, 1879. The mortgage, which was a usufructuary one, was executed by S and A in 1888 in favour of the predecessors in interest of the appellants. By a Rajinama filed under section 74 of the Code in 1900, S made an unconditional 88 694 surrender of the occupancy. On the same day the mortgagees by a Kabuliyat prayed that the occupancy in the mortgaged property might be granted to them. Both the Rajinama and the Kabuliyat were granted by the Mamlatdar. By the Rajinama S did not, however, purport to relinquish the occupancy on behalf of A. After the death of S, A applied to the Mamlatdar for the cancellation of the transfer in favour of the mortgagees and registering the mortgaged property in his name. That application was rejected. The heirs of S, claiming also to be the heirs of A, brought the suit for redemption. The defence of the appellants was that the plaintiffs were not the heirs of A and that the right of redemption in the entire occupancy had been extinguished by the Rajinama. The administrators of the estate of A were then added as defendants but were later on transposed to the category of co plaintiffs. The courts below found against the appellants. Hence this appeal by special leave. The question for determination was whether the surrender by S amounted to a relinquishment of the entire occupancy including the share of A. Held, that the Rajinama could in no way affect the right of A to his share, in the occupancy and the right of redemption in respect of his share still subsisted. Under section 74 of the Bombay Land Revenue Code, 1879, rightly construed, the registered occupant had no inherent or independent right, in the absence of any authority, express or implied, which must be clearly pleaded and strictly proved, to give a notice of relinquishment so as to affect the interest of other occupants as well. Although the section conferred certain rights and imposed certain obligations on the registered occupant, it was not intended to take away the rights of other occupants. Lalchand Sakharam Marwadi vs Khendu Kedu Ugbade, 22 Bom. L.R. 1431, referred to. Held, further, that even though A 's application to get the mortgaged property registered his name had failed, there could be no question of adverse possession since the possession of the mortgagees had a lawful origin in the usufructuary mortgage. Nor could a mere assertion of adverse title affect the subsisting equity of redemption or shorten the prescribed period of limitation for the suit. Khiarajmal vs Diam, I.L.R. , referred to.

The owner of a certain plot of land granted a perpetual lease of it on an annual rent to some persons who sublet it to the respondent on a higher rent. The respondent sublet the plot to the appellant on a still higher rent. In all the three deeds of lease it was recited that the lessee might construct buildings on the land after obtaining sanction of the appropriate authority but on the dates of all the three leases the plot was assessed for agricultural purposes under the Bombay Land Revenue Code, 1879. The appellant obtained sanction of the Collector for conversion of user of the land to non agricultural purposes. The appellant thereafter applied to the court for fixation of standard rent of the plot under 's.11 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947. The 'respondent contended that the land when granted in lease being agriculture I, the provisions of the Act did not apply thereto. The question which arose for decision was whether the plot of land was 'Premises ' within the meaning of s.5(8)of the Act. Held, that the material date for ascertaining whether the plot is 'premises ' is the date of letting and not the date of the application for fixing the standard rent. In the present case the plot in dispute could not be regarded as 'premises ' under section 5(8) of the Bombay Act on the date of letting and the application for fixation of standard rent was not maintainable.

os. 67, 87 and 130 of 1959. Petitions under article 32 of the Constitution of India for enforcement of Fundamental Rights. R. section Narula and section section Chadha, for the petitioners. M. C. Setalvad, Attorney General of India, B. Sen and T. M. Sen, for Respondents Nos. 1, 2 and 5 (In 128 petition No. 83 of 1959) 1, 2 and 12 (In Petition No. 67 of 1959) and 1, 2 and 4 (In Petition No. 130 of 1959). W. section Barlingay and A. G. Ratnaparkhi, for respondent No. 3 (In Petn. No. 83 of 1959). Sardari Lal Bhatia, for respondents Nos. 3a, 4, 5, 6 (a, b, c,) and 7 10. J. D. Jain and K. L. Mehta, for the Intervener in Petition No. 67 of 1959 (Phool Chand). April 21. The Judgment of the Court was delivered by AYYANGAR, J. These three petitions have been filed invoking the jurisdiction of this Court under article 32 of the Constitution challenging the constitutionality of section 19 and particularly sub section 3, of the (Central Act 96 of 1956), on the ground that it offends the fundamental right of the petitioners guaranteed to them by articles 14 and 19(1)(f). To appreciate the grounds on which this contention is sought to be sustained it is necessary to set out briefly a few facts. We might however mention that though the constitutional objection, adverted to is common to all the three petitions, it is sufficient to refer to the facts of the case in Writ Petition No. 67 of 1959 which is typical of the cases before us. The petitioner Jyoti Pershad is the owner of a house in Delhi in which respondents 3 to 11 were tenants. Each of these nine individuals occupied a single room in this house. As the petitioner considered the house to be old and required to be demolished and reconstructed, he submitted a plan to the Council of the Delhi Municipal Committee and applied for sanction for the reconstruction of the house. The plan was sanctioned and thereafter the petitioner filed suits against these nine tenants under section 13(1)(g) of the Delhi and Ajmer Rent Control Act 38 of 1952 (which will hereafter be referred to as the Rent Control Act). The suits were resisted by the tenants. Two matters had to be proved under section 13(1)(g) of the Rent Control Act by a plaintiff before he could obtain an order of 129 eviction:(i) that there was a plan which had been sanctioned by the municipal authorities which made, provision for the tenants then in occupation of the house being accommodated in the house as reconstructed, and (ii) that the plaintiff had the necessary funds to carry out the reconstruction. The plan which had been approved by the Delhi Municipal Committee made provision for the construction of a double storeyed building with twelve rooms which was, therefore, more than ample for the nine tenants for whom accommodation had to be provided. The plaintiff also established that he had deposited cash in the State Bank of India sufficient for reconstructing the house as sanctioned in the plan. On December 8, 1956 the Civil Court in Delhi passed decrees in favour of the petitioner for the eviction of respondents 3 to 11. Section 15 of the Rent Control Act enacted: "15. (1) The Court shall, when passing any decree or order on the grounds specified in clause (f) or clause (g) of the proviso to sub section (1) of section 13, ascertain from the tenant whether he elects to be placed in occupation of the promises or part thereof from which he is to be evicted and if the tenant so elects, shall record the fact of the election in the decree or order and specify therein the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or re building as the case may be. (2)If the tenant delivers possession on or before the date specified in the decree or order, the landlord, shall, on the completion of the work of repairs or building or re building place the tenant in occupation of the premises or part thereof (3)If, after the tenant has delivered possession on or before the date specified in the decree or order the landlord fails to commence the work of repairs or building or re building, within one month of the specified date or fails to complete the work in a reasonable time or having completed the work, fails to place the tenant in occupation of the premises in 17 130 accordance with sub section (2), the Court may, on the application of the tenant made within one year from the specified date, order the landlord to place the tenant in occupation of the premises or part thereof on the original terms and conditions or to pay to such tenant such compensation as may be fixed by the Court. " The tenants, however, refused to give up possessession within the three months time granted to them by the decrees to vacate the premises but went up in appeal against the orders of eviction under section 34 of the Rent Control Act to the Senior Sub Judge, Delhi. These appeals were finally disposed of against the tenant appellants, some on the merits and some by reason of abatement, by the end of October, 1957. Under the rules governing the construction of houses on plans sanctioned by the Delhi Municipal Com mittee, the sanctioned building had to be completed within a period of one year from the date of sanction. As a result of this rule the sanction obtained by the petitioner lapsed and he had, therefore, to obtain fresh sanction if in consequence of his success in the appeals before the Senior Sub Judge he still desired to demolish and reconstruct the building. Meanwhile, two changes came about in the law governing matters relevant to the present case: The first was that the 96 of 1956, which will be hereafter referred to as the Act, was enacted by Parliament and came into force in the Delhi area. Section 19 of that Act which is impugned in these petitions runs: "19. (1) Notwithstanding anything contained in any other law for the time being in force, no person who has obtained any decree or order for the eviction of a tenant from any building in a slum area shall be entitled to execute such decree or order except with the previous permission in writing of the competent authority. (2) Every person desiring to obtain the permission referred to in sub section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed. 131 (3) On receipt of such application the competent authority, after giving an opportunity to the tenant of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing either grant ' such permission or refuse to grant such permission. (4) Where the competent authority refuses to grant the permission it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant. " The other change in the law was that due to the enactment of rules and regulations providing for a coordinated development and planning of buildings in the Delhi Area the type of constructions that could be sanctioned by the Delhi Municipal Committee underwent a radical alteration as a result of which in the area now in question double storeyed buildings were not permitted to be constructed and that if the petitioner 's house had to be reconstructed it could only have three living rooms making allowance for the size of the rooms and the free space that had to be left on either side of the building in accordance with the revised municipal regulations. It would have been noticed that the right of the tenants to insist on the landlord providing accommodation for them in the reconstructed building guaranteed to them by section 15 of the Rent Control Act, had ceased by reason of their failure to quit and deliver vacant possession of the tenements occupied by them within 3 months fixed by the order of the Civil Court (vide section 15) and hence they had no statutory right under the Rent Control Act to be provided with accommodation by the landlord. Thus freed from obligation to the tenants the petitioner filed on the strength of these decrees for eviction nine applications under section 19 of the Act before the competent authority for the eviction of the tenants from the nine rooms in the building on the ground that the building had to be reconstructed as it was in a dilapidated condition. These petitions were dismissed by the competent authority by his order dated January 13, 1958 on the ground that the sanction to 132 reconstruct the building which the petitioner had obtained from the municipality in 1956 had expired. The order recited: "since it may take some time for the petitioner to obtain fresh sanction for reconstruction and there is also the possibility of sanction not being given at all, it would be no use continuing with these proceedings until it is definitely known that the landlord has obtained sanction for reconstruction. These nine applications are accordingly filed with the option to the petitioner to have them revived without payment of extra fee in case he is able to obtain sanction. " Thereafter the petitioner applied to the municipal authorities for sanctioning a building plan. As stated earlier, the building plan approved by the municipality could permit only a building consisting of one floor in which there were three living rooms and sanction for the construction of a building with such accommodation was granted. With this sanctioned plan, the petitioner renewed his application under section 19 for permission to execute the decree of the Civil Court and evict the tenants. By order dated July 30, 1958 all these applications were dismissed. The reason assigned for the order was stated in these terms: "If the decree is allowed to be executed they will be thrown out and it will be impossible for them to get accommodation in the reconstructed building. They are old tenants and as stated above also very poor. The execution of the decree will involve very real hardship to them. They are all occupying only one Kothri each and paying rent at Rs. 3 per mensem, and they have no complaint to make about the condition of their Kothries. The landlord has four or five other houses which he has let out on rent. The case has a human aspect and I disallow the execution of the decree against the tenants. " The petitioner preferred appeals against this order to the Administrator of the Union Territory, Delhi to whom appeals lay under section 20 of the Act. The appeals were dismissed, the appellate authority saying : 133 "I would have allowed the appellant permission to evict the tenants, if the property itself was dilapidated and declared unfit for human habitation by a competent authority. This is not so. The land lord naturally desires to get a better return from land in the congested areas of the city by rebuilding on it to better specifications, so that he can get higher rent from it. But if this tendency is permitted to have an unrestricted play, then the result will be the eviction of a large number of poor people from slum areas. In the circumstances, the appellant should wait until either his property is declared dangerous by the Municipal Corporation, or under a Slum Clearance Scheme he is asked by the competent authority itself to demolish it or rebuild it in a particular manner. " In these circumstances the petitioner has moved this Court for the issue of a writ of certiorari to quash these orders on the ground already adverted to, viz., that section 19 of the Act is invalid and unconstitutional as violative of the petitioner 's rights guaranteed by articles 14 and 19(1)(f) of the Constitution. In passing we may observe that we are not concerned with the validity of the particular orders passed in the case but only with the general question as to the constitutionality of the impugned section 19 of the Act. Before setting out the points urged by Mr. Narula learned Counsel for the petitioners in support of his submission that section 19 of the Act" was, in so far as it enabled the competent authority to withhold permission to those who had obtained decrees for eviction from executing their decrees, unconstitutional, it would be necessary to read the material provisions of the Rent Control Act, 1952, which imposes a restriction on the right of landlords, inter alia to evict tenants from the premises occupied by them. Chapter III of that Act imposes a control over the eviction of tenants. A tenant is defined (Vide section 2(j)) as meaning "any person by whom or on whose account rent is payable for any premises including such sub tenants or others who have derived title under the tenant 134 under the provisions of any law before the commencement of the Act. " Section 13(1) enacts: "Notwithstanding anything to the contrary con tained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):". This blanket protection is, however, subject to the conditions enumerated in the proviso which reads: "Provided that nothing in this sub section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied " Then follow ten grounds the existence of one or other of which enables a landlord to obtain a decree from a Civil Court for the recovery of possession from tenants. Among the grounds thus enumerated it is sufficient to refer to grounds (f), (g) and (1), ground (g) being the ground upon which the petitioner in the present case obtained the decrees for eviction and these run: " (f) that the premises have become unsafe or unfit for human habitation and are bona fide required by the landlord for carrying out repairs which cannot be carried out without the premises being vacated; or (g) that the premises are bona fide required by the landlord for the purpose of re building the premises or for the replacement of the promises by any building or for the erection of other buildings, and that such building or rebuilding cannot be carried out without the premises being vacated; or (1) that the landlord requires the premises in order to carry out any building work at the instance of the Government or the Delhi Improvement Trust in pursuance of any improvement scheme or development scheme. " The right of the landlord, however, who obtains an order for eviction under either cl. (f) or (g) above set out is subject to the provisions of section 15 whose terms have already been set out, The result, therefore, 135 would be that in the cases covered by these two clauses the tenants would be entitled, if they conform to the terms of these provisions, to be reinstated in the newly constructed premises after the reconstruction. It might be pointed out that under section 38 of the Rent Control Act the provisions of the Act and the Rules made thereunder are to have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The argument of the learned Counsel was that the restriction upon the rights of landlords to the enjoyment of the property imposed by section 13 of the Rent Control Act could not be open to any objection, legal or constitutional because the Legislature has set out with precision the grounds upon which possession could be recovered, the defenses that might be set up by the tenants and the conditions subject to which the rights either of the landlord or of the tenant could be exercised. It is the super imposition of the provisions of section 19 of the Act on the rights of a landlord decreeholder who had satisfied the requirements of the Rent Control Act before obtaining his decree that was stated as amounting to an unreasonable restriction on the right to hold property guaranteed by article 19(1)(f). This will be a convenient stage at which we might set out in brief outline the argument urged by learned Counsel for the petitioner. They were mainly three: (1) Section 19(3) of the Act vests an unguided, unfettered and uncontrolled power in an executive officer to withhold permission to execute a decree which a landlord has obtained after satisfying the reasonable requirements of the law as enacted in the Rent Control Act. Neither section 19 of the Act nor any other provision of the Act indicates the grounds on which the competent authority might grant or withhold permission to execute decrees and the power conferred is, therefore, arbitrary and offends article 14 of the Constitution. (2) The same point was urged in a slightly different form by saying that the Power conferred on the "competent authority" by section 19(3) of the Act was an excessive delegation of legislative power and was, therefore, unconstitutional. (3) The 136 vesting of a power in an executive authority to override at his sweet will and pleasure rights to property without any guidance from the Legislature con stituted an unreasonable restraint on the petitioner 's right to hold property, a right which in the case of the property of the type now in question would include a right to obtain possession from the tenant in order either to improve it by reconstruction or for the purpose of his own use. Apart from the objection regarding the vesting of an unguided power in an executive authority which is, the common ground of objection urged in regard to points (1) and (2), learned Counsel submitted that the right vested in an executive authority to prevent for an indefinite and indeterminate period of time the right to enjoy his property was for this further reason excessive and an unreasonable restraint which could not be justified under article 19(5) of the Constitution. We shall proceed to consider these points in that order. The first ground alleged is that section 19 of the Act is constitutionally invalid as violative of the equal protection of the laws conferred under article 14 of the Constitution, in that an unguided and arbitrary discretion is vested in the "competent authority". The import, content and scope of article 14 of the Constitution has been elaborately considered and explained in numerous decisions of this Court and it is, therefore, unnecessary for us to embark on any fresh investigation of the topic, but it would be sufficient to summarise the principles, or rather the rules of guidance for the interpretation of the Article which have already been established, and then consider the application of those rules to the provisions of the enactment now impugned. It is only necessary to add that the decisions of this Court laying down the proper construction of article 14 rendered up to 1959 have been summarised in the form of 5 propositions by Das C. J. in Ramakrishna Dalmia vs Justice Tendolkar (1), but we are making a summary on slightly different lines more relevant to the enquiry regarding the provision with which we are concerned in the present case. (1) ; , 299, 301 137 (1) If the statute itself or the rule made under it applies unequally to persons or things similarly situated, it would be an instance of a direct violation of the Constitutional guarantee and the provision of the statute or the rule in question would have to be struck down. (2) The enactment or the rule might not in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasi judicial capacity by a legislation which does not lay down any policy or disclose any tangible or intelligible purpose, thus clothing the authority with unguided and arbitrary powers enabling it to discriminate. "The legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct." [Harishankar Bagla vs The State of Madhya Pradesh (1)]. "No rules have been framed and no directions given on these matters to regulate or guide the discretion of the licensing officer. Practically the Order commits to the unrestrained will of a single individual the power to grant, withhold or cancel licences in any way he chooses and there is nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same". [Messrs. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh (2)]. (1) , 388. (2) ; 813. 18 138 In such circumstances the very provision of the law which enables or permits the authority to discriminate, offends the guarantee of equal protection afforded, by article 14. possibly the best instance of this type of case is afforded by the legislation under consideration in The State of West Bengal vs Anwar Ali Sarkar (1), the ratio underlying which was thus explained in Kathi Raning Rawat vs The State of Saurashtra (2): "If it depends entirely upon the pleasure of the State Government to make any classification it likes, without any guiding principle at all, it cannot certainly be a proper classification, which requires that a reasonable relation must exist between the classification and the objective that the legislation has in view. On the other hand, if the legislature indicates a definite objective and the discretion has been vested in the State Government as a means of achieving that object, the law itself cannot be held to be discriminatory, though the action of the State Government may be condemned if it offends against the equal protection clause, by making an arbitrary selection. " (3) It is manifest that the above rule would not apply to cases where the legislature lays down the policy and indicates the rule or the line of action which should serve as a guidance to the authority. Where such guidance is expressed in the statutory provision conferring the power, no question of violation of article 14 could arise, unless it be that the rules themselves or the policy indicated lay down different rules to be applied to persons or things similarly situated. Even where such is not the case, there might be a transgression by the authority of the limits laid down or an abuse of power, but the actual order would be set aside in appropriate proceedings not so much on the ground of a violation of article 14, but as really being beyond its power. (4) It is not, however, essential for the legislation to comply with the rule as to equal protection, that the rules for the guidance of the designated authority, (1) ; (2) ; , 461, 462. 139 which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision itself. "The Saurashtra case would seem to lay down the A principle that if the impugned legislation indicates the policy which inspired it and the object which it seeks to attain, the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied, but leaves tile selective application of the law to be made by the standard indicated or the underlying policy and object disclosed is not a suffi cient ground for condemning it as arbitrary and, therefore, obnoxious to article 14." [Kedar Nath Bajoria vs The State of West Bengal (1) ]. "So long as the policy is laid down and a standard established by a statute, no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the deter mination of facts to which the policy as declared by the Legislature is to apply." [Harishankar Bagla and another vs The State of Madhya Pradesh (1) ]. Such guidance may thus be obtained from or afforded by (a) the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with well known facts of which the Court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits, Kathi Raning Rawat vs The State of Saurashtra (3) being an instance where the guidance was gathered in the manner above indicated, (b) or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or comparable situations or generally from the object sought to be achieved by the enactment. "The policy underlying the Order is to regulate the (1) , 46. (2) , 388. (3) [1052] S.C.R. 435, 461, 462. 140 transport of cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all. The grant or refusal of a permit is thus to be govern ed by this policy and the discretion given to the Textile Commissioner is to be exercised in such a way as to effectuate this policy. The conferment of such a discretion cannot be called invalid and if there is an abuse of the power there is ample power in the Courts to undo the mischief." Harishankar Bagla vs The State of Madhya Pradesh (1). In Pannalal Binjraj vs Union of India 's case (2) the purpose of the provision which was administrative convenience for enabling assessments to be made in the manner indicated by the Income tax Act was held to afford a sufficient guidance so as to render the provision immune from attack on the ground of violation of article 14. In the circumstances indicated under the fourth head, just as in the third, the law enacted would be valid being neither a case of excessive delegation or abdication of legislative authority viewed from one aspect, nor open to objection on the ground of violation of article 14 as authorising or permitting discriminatory treatment of persons similarly situated. The particular executive or quasi judicial act would, however, be open to challenge as already stated on the ground not so much that it is in violation of the equal protection of the laws guaranteed by article 14, because ex concessis that was not permitted by the statute but on the ground of the same being ultra vires as not being sanctioned or authorized by the enactment itself. The situation in such cases would be parallel to the tests to be applied for determining the validity of rules made under statutes which enable the rule making authority to enact subsidiary legislation "to carry out the purposes of the Act". The criteria to be applied to determine the validity of such rules could, in our opinion, be appropriately applied to determine the validity of the action under the provisions like the one dealt with under the last two heads. (1) , 388. (2) ; 141 In the light of what we have stated above we have now to consider the point urged by the learned Counsel for the petitioner that the Act has vested in the competent authority the power to withhold eviction in pursuance of orders or decrees of Courts with out affording any guidance or laying down any principles for his guidance on the basis of which he could exercise his discretion. In other words, that the Act lays no fetters and has vested in him an arbitrary and unguided power to pick and choose the decree holders to whom he would permit execution and those to whom he would refuse such relief. On the other hand, the learned Attorney General submitted that the discretion vested in the competent authority was not unguided and that though section 19 of the Act did not in terms lay down any rules for his guidance, the same could be gathered from the policy and purpose of the Act as set out in the preamble and in the operative provisions of the Act itself. We consider that there is considerable force in this submission of the learned Attorney General. The preamble describes the Act as one enacted for two purposes: (1) the improvement and clearance of slum areas in certain Union Territories, and (2) for the protection of tenants in such areas from eviction. These twin objects are sought to be carried out by Chapters II to VI of the enactment. Chapter 11 which consists of one sections. 3 provides a definition of what are "slum areas" and their declaration as such. The tests for determining whether the area could be declared a "slum area" or not briefly are whether the buildings in the area are (a) unfit for human habitation, or (b) are by reason of dilapidation, overcrowding etc. detrimental to safety, health or morals. It is in areas so declared as "slum areas" that the rest of the enactment is to operate. The provisions, however, make it clear that in order that an area may be declared a " slum area" every building in that area need not be unfit for human habitation or that human habitation in every building in such area should be detrimental to the safety, health or morals of the dwellers. We are making this observation because of a suggestion 142 made, that the declared purpose of protecting the tenants from eviction was inconsistent with the policy underlying the declaration of an area as a "slum area" and that thus the Act manifested two contrary or con flicting ideas or principles which would negative each other and thus leave no fixed policy to guide " the competent authority" when exercising his powers to grant or refuse eviction when an application was made to him in that behalf under section 19 of the Act. Chapter III is headed 'Slum Improvement ' and makes provision for two types of orders: (1) to require the improvement of buildings where repairs major or minor would make them reasonably habitable for the slum dwellers (vide sections 4 6), and (2) cases where mere repairs or adjustments would not suffice but what is required is the demolition of the entire building. In the latter case certainly the occupants of the building would have to be evicted and the building vacated and power is conferred for effectuating this purpose vide section 7 (1) and 7 (3). It might be that the whole area might consist of dwellings of the type which require demolition and it is Chapter IV that makes provision for this category of cases which is headed "Slum Clearance and Re development". In such cases the buildings in the entire area are to be ordered to be demolished, and in that event the dwellers would, of course, have to vacate, but it is presumed that alternative accommodation would necessarily have to be provided before any such order is made. The process would have to be carried out in an orderly fashion if the purpose of the Act is to be fulfilled and the policy behind it, viz., the establishment of slum dwellers in healthier and more comfortable tenements so as to improve the health and morals of the community, is to be achieved. Chapter V makes provision for the acquisition of land in order to compass the re development of slum areas into healthy parts of the city, by providing amenities and more substantial and better accommodation for the previous inhabitants. It is after this that we have Chapter VI whose terms we have already set out. This Chapter is headed "Protection of tenants in Slum Areas 143 from Eviction". Obviously, if the protection that is afforded is read in the context of the rest of the Act, it is clear that it is to enable the poor who have no other place to go to, and who if they were compelled, to go out, would necessarily create other slums in the a process and live perhaps in less commodious and more unhealthy surroundings than those from which they were evicted, to remain in their dwellings until provision is made for a better life for them elsewhere. Though therefore the Act fixes no time limit during which alone the restraint on eviction is to operate, it is clear from the policy and purpose of the enactment and the object which it seeks to achieve that this restriction would only be for a period which would be determined by the speed with which the authorities are able to make other provisions for affording the slum dweller tenants better living conditions. The Act, no doubt, looks at the problem not from the point of view of the landlord, his needs, the money he has sunk in the house and the possible profit that he might make if the house were either let to other tenants or was reconstructed and let out, but rather from the point of view of the tenants who have no alternative accommodation and who would be stranded in the open if an order for eviction were passed. The Act itself contemplates eviction in cases where on the ground of the house being unfit for human habitation it has to be demolished either singly under section 7 or as one of a block of buildings under Ch. So long therefore as a building can, without great detriment to health or safety, permit accommodation, the policy of the enactment would seem to suggest that the slum dweller should not be evicted unless alternative accommodation could be obtained for him. In this connection the learned Attorney General brought to our attention the provisions of the Delhi Development Act, 1957 (LXI of 1957) which makes provision for the design of a Master Plan for the city which, if executed, is likely to greatly reduce, if not to eliminate, slums altogether. It was suggested that taken in conjunction with this enactment it would be seen that the power to restrain eviction under section 19 of the 144 Act is one which would not last for ever but to a limited period, though this could not naturally be defined by reference to fixed dates. We see force in this submission as well. In view of the foregoing we consider that there is enough guidance to the competent authority in the use of his discretion under section 19(1) of the Act and we, therefore, reject the contention that section 19 is obnoxious to the equal protection of laws guaranteed by article 14 of the Constitution. We need only add that it was not, and could not be, disputed that the guidance which we have hold could be derived from the enactment, and that it bears a reasonable and rational relationship to the object to be attained by the Act and, in fact, would fulfil the purpose which the law seeks to achieve, viz., the orderly elimination of slums, with interim protection for the slum dwellers until they were moved into better dwellings. We are further of the opinion that the order of the competent authority in the present case is not open to challenge either, because it would be seen that the grounds upon which he has rejected the petitioner 's application for execution is in line with what we have stated to be the policy and purpose of the Act. Before leaving this topic it is necessary to consider a submission of learned Counsel for the petitioner which is of immediate relevance to point under examination. He said that, no doubt, the decisions of this Court had pointed out that it was not reasonable to expect the legislature to lay down expressly precise criteria for the guidance of the authorities who have to administer the law because of the difficulty, if not impossibility, of contemplating every single circumstance and prescribing rules so as to apply to such varying situations, and that was the raison d 'etre of vesting a large discretion in the hands of the administering authorities after indicating the general principles that ought to guide them. He however urged that in the present case there was no such insuperable difficulty, because the restriction provided for by section 19 of the Act was superimposed on those which were 145 enacted by section 13 of the Rent Control Act, and Parliament when enacting the Act, could easily have indicated with reference to the several grounds on which eviction could be had under the Rent Control Act, the additional restrictions, or further conditions which would be taken into account by "the competent authority". If learned Counsel meant by this submission that it was a possible mode of legislation, there is nothing to be said against it, but if he desired us to infer therefrom that because of the failure to adopt that mode, the power conferred by section 19 of the Slum Act contravened the guarantee under article 14, we cannot agree. In regard to this matter we desire to make two observations. In the context of modern conditions and the variety and complexity of the situations which present themselves for solution, it is not possible for the Legislature to envisage in detail every possibility and make provision for them. The Legislature therefore is forced to leave the authorities created by it an ample discretion limited, however, by the guidance afforded by the Act. This is the ratio of delegated legislation, and is a process which has come to stay, and which one may be permitted to observe is not without its advantages. So long therefore as the Legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law. The next point argued by learned Counsel for the 19 146 petitioner was that the power conferred on the competent authority by section 19(3) of the Act was an excessive delegation of legislative power. As we have pointed out earlier, this submission is really another form, or rather another aspect of the objection based on the grant of an unfettered discretion or power which we have just now dealt with. It is needless to repeat, that so long as the legislature indicates its purpose and lays down the policy it is not necessary that every detail of the application of the law to particular cases should be laid down in the enactment itself. The reasons assigned for repelling the attack based on article 14 would suffice to reject this ground of objection as well. The last major objection urged by learned Counsel was that the power vested in the competent authority "at its sweet will and pleasure" to refuse permission to execute a decree for eviction violated the right to hold property under article 19(1)(f) of the Constitution and that the same was not saved by article 19(5) of the Constitution for the reason that the restriction imposed on the exercise of the right was not reasonable. If Counsel were right in his submission that the petitioner 's right to obtain possession of his building rested on the "sweet will and pleasure of the competent authority" there could be some substance in the argument. But as we had already had occasion to point out, it is not at the "sweet will and pleasure" of the competent authority that permission to evict could be granted or refused, but on principles gather able from the enactment, as explained earlier. Learned Counsel further urged that the right to hold property under article 19( 1)(f) included the right in the owner of a building to evict a tenant and enter into actual or physical occupation of the property. Counsel is, no doubt, right in this submission but the 'freedom ' to 'hold property ' is not absolute but that, as he himself admitted, is subject, under article 19(5), to treasonable restrictions" being placed upon it "in the interests of the general public". It was not suggested that slum dwellers would not constitute "the general public" and that if a legislation was designed to grant 147 them protection, it could not be justified as one in the interests of the "general public", because obviously the interests of such a vast number of the population in the country, their health, well being and morals, would, apart even from themselves, necessarily impinge upon and influence, for good or evil, the health, safety, well being and morality of the rest of the community as well. The only question that is capable of argument is whether the restriction is reasonable. A considerable part of learned Counsel 's argument on the reasonableness of the restriction was devoted to showing that the vesting of an unfettered or unguided power in the competent authority to permit or not to permit eviction rendered the restriction unreasonable. This, as would be seen, is really a different form of presenting the case of the objection under article 14, and what we have said in dealing with the first point of the learned Counsel would answer this portion of the objection. There are, however, a few more matters which have relevance about the objection on the score of the restriction not being reasonable within article 19(5) and the tests to be applied to determining its reasonableness to which we should refer. It has already been pointed out that the restrictions imposed on the right of the landlord to evict have a reasonable and rational connection with the object sought to be achieved by the Act, viz., the ultimate elimination of slums with protection to the slum dwellers from being meanwhile thrown out on the streets. The question might still remain whether this restriction on the rights of the landlords is excessive in the sense that it invades and trenches on their rights in a manner or to an extent not really or strictly necessary to afford protection to the reasonable needs of the slum dwellers which it is the aim and object of the legislation to subserve. The criteria for determining the degree of restriction on the right to hold property which would be considered reasonable, are by no means fixed or static, but must obviously vary from age to age and be related to the adjustments necessary to solve the problems which communities face from time to time. The tests, therefore, evolved by communities living in sheltered or 148 placid times, or laid down in decisions applicable to them can hardly serve as a guide for the solution of the problems of post partition India with its stresses and strains arising out of movements of populations which have had few parallels in history. If law failed to take account of unusual situations of pressing urgency arising in the country, and of the social urges generated by the patterns of thought evolution and of social consciousness which we witness in the second half of this century, it would have to be written down as having failed in the very purpose of its existence. Where the legislature fulfils its purpose and enacts laws, which in its wisdom, is considered necessary for the solution of what after all is a very human problem the tests of "reasonableness" have to be viewed in the context of the issues which faced the legislature. In the construction of such laws and particularly in judging of their validity the Courts have necessarily to approach it from the point of view of furthering the social interest which it is the purpose of the legislation to promote, for the Courts are not, in these matters, functioning as it were in vacuo, but as parts of a society which is trying, by, enacted law, to solve its problems and achieve social concord and peaceful adjustment and thus furthering the moral and material progress of the community as a whole. Judged in the light of the above, we consider that the restrictions imposed cannot be said to be unreasonable. As we have already pointed out, the ban imposed on evictions is temporary, though learned Counsel is right in saying that its duration is not definite. In the very nature of things the period when slums would have ceased to exist or restrictions placed upon owners of property could be completely lifted must, obviously, be indefinite and therefore the indefiniteness cannot be a ground for invalidity a ground upon which the restriction could be held to be unreasonable. Again, there is an appeal provided from the orders of the competent authority to the Chief Administrator. If learned Counsel is right in his submission that the power of the "competent authority" is unguided and that he had an unfettered 149 and arbitrary authority to exercise his discretion "at his sweet will and pleasure" the existence of a provision for appeals might not impart validity to such legislation. The reason for this is that the appellate power would be subject to the same vice as the power of the original authority and the imposition of one " sweet will and pleasure" over another of a lower authority, would not prevent discrimination or render the restriction reasonable. But if, as we have held earlier, the Act by its preamble and by its provisions does afford a guidance to the "competent authority" by pointing out the manner in which the discretion vested in him should be exercised, the provision as to an appeal assumes a different significance. In such cases, if the "competent authority" oversteps the limits of his powers or ignores the policy behind the Act and acts contrary to its declared intention, the appellate authority could be invoked to step in and correct the error. It would, therefore, be a provision for doubly safeguarding that the policy of the Act is carried out and not ignored in each and every case that comes up before "the competent authority". The procedure laid down by the Act for the hearing by the "competent authority" and the provisions for enquiry, renders the "competent authority" a quasi judicial functionary bound to follow fixed rules of procedure and its orders passed after such an enquiry are to be subject to appeals to the Administrator. We consider these safeguards very relevant for_judging about the reasonableness of the restriction. In considering these matters one has to take into account the fact a fact of which judicial notice has to be taken that there has been an unprecedented influx of population into the capital, and in such a short interval, that there has not been time for natural processes of expansion of the city to adjust itself to the increased needs. Remedies which in normal times might be considered an unreasonable restriction on the right to hold property would not bear that aspect or be so considered when viewed in a situation of emergency brought about by exceptional and unprecedented circumstances. Just as pulling down a building to prevent the 150 spread of flames would be reasonable in the event of a fire, the reasonableness of the restrictions imposed by the impugned legislation has to be judged in the light of actual facts and not on a priori reasoning based on the dicta in decisions rendered in situations bearing not even the remotest resemblance to that which presented itself to Parliament when the legislation now impugned was enacted. Before concluding it is necessary to advert to a few points which were also urged by learned Counsel for the petitioner. First it was said that the impugned section 19 of the Act imposed a double restriction, a restriction super imposed on a restriction already existing by virtue of the provisions of the Rent Control Act, and that this rendered it unreasonable. If by this submission learned Counsel meant that different results as to constitutional validity flowed from whether the impugned section was part of the provisions of the Rent Control Act, or was a section in an independent enactment, the argument is clearly untenable. If, however, that was not meant, but that in the context of the restrictions already imposed by the Rent Control Act section 19 of the Act was really unnecessary and therefore. an unreasonable restraint on the freedom of the landlord, what we have said earlier ought to suffice to repel the argument. Learned Counsel next drew our attention to section 38 of the Rent Control Act which reads: "The provisions of this Act and of the rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. " If this section stood alone, the argument of learned Counsel that by reason of the width and sweep of its language, even a special legislation, such as the Act was comprehended within the non obstante provision would have required serious consideration, but that has been rendered unnecessary, because even apart from section 19 of the Act which opens with the words: "Notwithstanding anything contained in any other law for tile time being in force", section 39 of the Act also 151 contains a non obstante clause on the same lines as section 38 of the Rent Control Act. The result therefore would be that the provisions of the special enactment, as the Act is, will in respect of the buildings in areas declared slum areas operate in addition to the Rent Control Act. The argument therefore that the Act is inapplicable to buildings covered by the Rent Control Act is without substance, particularly when it is seen that it is only when a decree for eviction is obtained that section 19 of the Act comes into play. We therefore consider that none of the points urged in support of the petition has any substance. The petitions fail and are dismissed. In the circumstances of the case there will be no order as to costs. Petitions dismissed.

The petitioner after a prolonged litigation and having ful filled all the conditions of the Delhi Rent Control Act, obtained decrees of ejectment against the tenants. 126 In the meantime the Slum Areas (Improvement and Clearance) Act, 956, came into force and the petitioner in accordance with section s.9 of the said Slum Areas Act applied to the competent authority for permission to execute the decree, which permission was refused inter alia on the grounds of hardship to the tenants and the human aspect of the case. The appeals therefrom were also rejected. The petitioner moved the Supreme Court for issue of a writ of certioraris to quash the orders on the ground that (1) section 19 of the Act was invalid and unconstitutional as violative of the petitioner 's rights guaranteed by articles 14 and 19(1)(f) of the Constitution, in as much as section 19 of the Slum Areas Act was a super imposition on the rights of the petitioner who had satisfied the requirements of the Rent Control Act before obtaining his decree, which amounted to unreasonable restrictions on the right to hold property guaranteed by the Constitution, and (2) that section 19(3) of the Slum Areas Act vested an unguided, unfettered, and uncontrolled power in an executive officer to withhold permission to execute a decree which the petitioner had obtained after satisfying the reasonable requirements of the law as enacted in the Rent Control Act, (3) The power conferred on the competent authority by section 19(3) of the Slum Areas Act was an excessive delegation of legislative power and therefore unconstitu tional. Held, that section 19 of the Slum Areas (Improvement and Clea rance) Act, 1956, was not obnoxious to the equal protection of laws guaranteed by article 14 of the Constitution. There was enough guidance to the competent authority in the use of his discretion under section 19(1) of the Act. The restrictions imposed by section 19 of the Act could not be said to be unreasonable. The guidance could be derived from the enactment and that it bears a reasonable and rational relationship to the object to be attained by the Act and in fact would fulfil the purpose which the law seeks to achieve, viz., the orderly elimination of slums, with interim protection for the slum dwellers until they were moved into better dwellings. The order of the competent authority in the present case was not open to challenge as it was in line with the policy and purpose of the Act. So long as the Legislature indicated in the operative provi sions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation was skeletal or that every detail of the application of law to a particular case, was not laid down in the enactment itself or the fact that a discretion was left to those entrusted with administering the law, afforded no basis either for the contention that there had been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested was uncanalised and unguided so as to amount to a carte blanche to discriminate. If the power or discretion has been conferred 127 in a manner which was legal and constitutional the fact that the Parliament could possibly have made more detailed provi sion, could not be a ground for invalidating the law. The freedom to 'hold property ' was not absolute but was subject, under article 19(5), to "reasonable restrictions" being A placed upon it "in the interests of the general public". The criteria for determining the degree of restriction on the right to hold property which would be considered reasonable, were by no means fixed or static, but must obviously vary from age to age and should be related to the adjustments necessary to solve the problems which communities faced from time to time. If law failed to take account of unusual situations of pressing urgency arising in the country and of the social urges generated by the patterns of thought, evolution and of social consciousness, it would have to be written down as having failed in the very purpose of its existence. Where the legislature enacted laws, which in its wisdom, was considered necessary for the solution of human problems, the tests of "reasonableness", had to be viewed in the context of the issues which faced the legislature. In the construction of such laws and particularly in judging of their validity the courts had to approach it from the point of view of furthering the social interest which it was the purpose of the legislation to promote, for the courts were not, in these matters, functioning as it were in vacuo, but as parts of a society which was trying, by enacted law, to solve its problems and achieve social concord and peaceful adjustment and thus furthering the moral and material progress of the community as a whole. That the provisions of the special enactment, the Slums Areas (Improvement and Clearance) Act, 1956, will in respect of the buildings in areas declared slum areas operate in addition to the Delhi & Ajmer Rent Control Act, 1952. Ramakyishna Dalmia vs justice Tendolkar; , , Harishankar Bagla vs State of Madhya Pyadesh, , M/s. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh, ; , State of West Bengal vs Anwar Ali Sarkar; , , Kathi Ratting Rawat vs State of Saurashtra; , , Kedar Nath Bajoria vs State of West Bengal, ; and Pannalal Binjraj vs Union of India, ; , discussed.

The petitioner, the Editor of the Searchlight, an English daily newspaper published from Patna, was called upon to show cause before the Committee of Privileges of the Bihar Legislative Assembly why he should not be proceeded against for the breach of privilege of the Speaker and the Assembly for publishing an inaccurate account of the proceedings of the Legislative Assembly. He moved this Court under article 32 of the Constitution for quashing the said proceeding and the question for decision in substance was whether the said privilege conferred by article 194(3) of the Constitution was subject to the fundamental 97 rights of a citizen under article 19(1)(a) of the Constitution. This Court by a majority found against the petitioner. Thereafter the Assembly was prorogued several times, the Committee of Privileges reconstituted and a fresh notice was issued to the petitioner. By the present petition the petitioner in substance sought to reopen the decision, raise the same controversy once again and contend that the majority decision was wrong. The question was whether he could be allowed to do so. Held, that the general principles of res judicata applied and the judgment of this Court could not be allowed to be reopened and must bind the petitioner and the Legislative Assembly of Bihar and the reconstitution of the Committee of Privileges in the meantime could make no difference. Raj Lakshmi Dasi vs Banamali Sen, ; , applied. Since this Court had held that the Legislature bad the power to control the publication of its proceedings and punish any breach of its privilege, there could be no doubt that it had complete jurisdiction to carry on its proceedings in accordance with its rules of business and a mere non compliance with rules of procedure could be no ground for interference by this Court under article 32 of the Constitution. Janardan Reddy vs The State of Hyderabad, ; , referred to. Prorogation of the Assembly does not mean its dissolution and the only effect it has is to interrupt its proceedings which can be revived on a fresh motion to carry on or renew them. It was, therefore, not correct to contend that since the Assembly was prorogued several times since after the alleged breach of privilege, the proceeding must be deemed to be dead.

Section 13 of the Bombay Rents, Hotel and Lodging House Rates Control. Act, 1 VII of 1947 (which was the Act in force in Gujarat) enumerates the grounds on which a landlord may obtain possession of the premises let out to a tenant. Clause (g) of that section provides that the landlord can obtain possession only if he satisfies the Court that the premises are reasonably and bona fide required for occupation by himself. Section 25 provides that a landlord cannot use nor can he permit to be used for a non residential purpose any premises which, on the date when the Act came into force, were used for a residential purpose. Sub section (2) of this Section makes contravention of the provisions of sub s.(1) punishable with imprisonment. On the date on which the Act came into operation, the premises in dispute belonging to the respondent were used for residential purposes. The respondent sought possession on the ground that it wanted them for its office for running a fair price shop, for establishing a godown, for conducting a tailoring and sewing class and such other purposes. The trial cannot and the first appellate court found that the respondent needed the premises for its business: but dismissed the suits on the ground that in view of the provisions of section 25 of the Act The requirement could not be said to be reasonable and bona fide. The High Court, while accepting that the premises were required by the respondent for its business, took the view that since the legislature dill not subject the right conferred on the landlord by s.13(1) to any other provision save the one contained in s 15 s.25 cannot be permitted to override s.13(1). Allowing the appeal, ^ HELD: Though the respondent required the premises for the purposes of its business, no decree for possession could be passed in its favour as its requirement could not be said to be reasonable. The requirement runs across the statutory prohibition and is, therefore, not reasonable. [415 E] (1) Under s.13(1)(g) it is not sufficient for a landlord to establish that the premises was e required by him but it has to be shown further that the requirement is reasonable and bona fide. The requirement of the respondent in the instant case could not be called reasonable if the very statute under which it seeks relief contains an injunction that it shall not use residential premises for a non residential purpose. Not only does the statute contain an injunction against the user of residential premises for a non residential purpose but it makes it penal For a landlord to use for a non residential purpose any premises which were used for a residential purpose on the date when the Act came into force. [414C E] (2) (a) The approach of the High Court is misconceived. The true question for consideration is not whether as between s.13(1) and s.25(1), one over rides the other, and indeed. in view of the wording of the non obstane clause of section 13 (1), the provisions of that section must have priority over the rest of the Act except for what is contained in s.15. But conceding to s.13(1) its rightful precedence and granting that it stands supreme except for s.15,. according to its own terms the Court has to be satisfied that the requirement of the landlord is reasonable. [415A B] (b) If the respondent fails it is not because s.25 overrides s.13(1) but because of its failure to prove the reasonableness of its requirement whether the requirement of the landlord ms reasonable or not ms to be judged from all the facts and circumstances of the case and a truly relevant circumstance 412 bearing on the reasonableness of the landlord 's requirement is that the purpose A for which the possession was sought was a purpose for which the premises could not be used save on pain of ' penal consequences. [415 CD] (3) Courts sought not to construe a statute in a manner which will encourage the breach of any of its provisions and a decree ought not to be passed which, is ' honored, will attract penal consequences. To pass a decree in favour of the respondent on the grounds accepted by the High Court is to invite the respondent to commit a breach of the statutory injunction contained in s.25(1).[415 D] Laxmi Co perative Bank Ltd. vs Mohan Govind Diwanji, 74 B.L.R 186, approved.

The respondents in Civil Appeal No. 708/78 Mamanchand Ratilal Agarwal and others, who are the landlords of premises bearing door No. 16 in Nawa Bazar Area Kirkee Cantonment, filed a civil suit No. 17,0 of 1964 against the Appellant tenant for recovery of possession and arrears of rent under the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The suit was decreed. There was an appeal by the tenant. It resulted in a com promise decree dated July 12, 1967 by which some time was given to the tenant to vacate the premises. On April 29, 1969, in the case of Indu Bhushan Bose vs Rama Sundari Devi and Anr. ; , this Court held that Parliament alone had and the State Legislature did not have the necessary competence to make a law in regard to the "regulation of house accommodation in Cantonment Areas. " The expression "regulation of house accommodation" was interpreted as not to be confined to allotment only but as extending to other incidents, such as termination of existing tenancies and eviction of persons in possession of house accommodation etc. To get over the situation created by the said decision, on December 29, 1969, the Central Government issued a notification under section 3 of the Cantonment (Extension of Rent Control Laws) Act, 1957 extending the pro visions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, to the Kirkee and other cantonment areas. In June 2, 1972, the Parliament also enacted Act 22 of 1972 amending the Cantonment (Extension of Rent Control laws) Act 1957, purporting to enable the Central Government to make the Rent Control Laws in the several States applicable to Cantonment areas from dates anterior to the dates of notification and further purporting to validate certain pre existing decrees. In the meanwhile, taking advantage of the decision in the case of Indu Bhushan Bose vs Rama Sundari Devi and Anr., the appellant tenant filed Miscellaneous Application No. 597/70 for a declaration that the decree obtained against him was a nullity and incapable of being executed. This application was allowed by the Court on November, 19, 1971. But, after the enactment of Act 22 of 1972, on January 11, 1973 the landlords filed Darkhast No. 104 of 1973 to execute the decree in their favour. The appellant tenant raised three objections, namely, (i) subsequent to the compromise decree there was a 225 fresh agreement of lease between the landlords and himself; (ii) the provisions of the amending Act 22 of 1972 were not extensive enough to save the decree dated July 12, 1967; ,(iii) in any case, the decision in Miscellaneous Application No. 597/70 holding the decree to be a nullity operated as res judicata between the parties. The first objection was left open by all the Courts for future adjudication, as the landlord denied the existence of any fresh agreement. The second and third objections alone were considered. In the judgment under appeal, the High Court overruled them and hence this appeal by special leave and two other similar appeals. Dismissing the appeals the Court, ^ HELD: 1. In Indu Bhushan Bose vs Rama Sundari and Anr., [1970 ] 1 S.C.R. 443, the Supreme Court agreed with the view of the Calcutta and Rajasthan High Courts and held that the power of the State Legislature to legislate in respect of landlord and tenant of buildings was to be found not in Entry 18 of the List II, but in Entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and that such power was circumscribed by the exclusive power of Parliament to legislate on the same subject under Entry 3 of List I. But even before this decision Parliament took the view of the Calcutta Rajasthan High, Courts as the correct view and proceeded to enact the Cantonment (Extension of Rent control Laws) Act, 1957, by section 3 of which the Central Government was enabled, by notification in the official Gazette to extend to any cantonment with such restrictions and modifications as it thought fit, any enactment relating to the control of rent and regulation of house accommodation which was in force on the date of the notification in the State in which the Cantonment was situated. Though this Act came into force on December 18, 1957, no notification was issued extending the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, to Kirkee and other Cantonment areas within the State of Bombay until 1969. Apparently such a notification was thought unnecessary in view of the fact that the Bombay Act was supposed to operate within the said Cantonment areas because of the consistent view taken by the Bombay High Court regarding the applicability of the Bombay Act to such areas. In view of the Supreme Court decision in Indu Bhushan 's case, it became necessary that a notification under section 3 of the Cantonment (Extension of Rent Control Laws) Act, 1957, should be issued. It was accordingly done on December 29, 1969. But it was realised that the entire problem was not thereby solved since all such notifications as the one issued on December 29, 1969 could only be prospective and could not save decrees which had already been passed. Therefore, Amending Act 22 of 1972 was enacted for the express purpose of saving decree which had already been passed. By section 2 of the Amending Act of 1972 the Principal Act of 1957 was itself deemed to have come into force on January 26, 1950. Original Section 3 was renumbered as subsection 1 and the words "on the date of the notification" were omitted and "were deemed always to have been omitted." [229 B G & 230 C D] 2. Under section 3 of the unamended Act, 1957, a notification could be issued extending a State Legislation to a Cantonment area with effect from the date of notification. As a result of the introduction of sub section 2 of section 3 the notification can be given effect from an anterior date or a future late but it cannot be made effective from a date earlier than the commencement 226 of the State Legislation or the establishment of the Cantonment or the commencement of the Cantonment (Extension of Rent Control Laws) Act, 1957. Sub section 3 is merely consequential to sub section 2, in that it provides that a State Legislation when extended to a Cantonment area with effect from the date of the notification from an anterior date, such legislation is to stand extended with all the amendments to such State Legislation made after such anterior date but before the commencement of the 1972 Amending Act, the amendments being applicable as and when they come into force. Sub section 4 makes provision for the saving of decrees or orders for the regulation of or for eviction from any house accommodation in a Cantonment made before the extension of the State Legislation to the Cantonment provided certain conditions are fulfilled. One condition is that the decree or order must have been made by any Court, Tribunal or other authority in accordance with a law for the control of rent and regulation of house accommodation for the time being in force in the State in which such Cantonment is situated. In other words the decree or order must have been made by the wrong application of the State Legislation to the Cantonment area. If a decree or order has been made by such wrong application of the State Legislation to the Cantonment area it shall be deemed, with enact from the date of the notification to have been properly made under the relevant provisions of the State Legislation. 1231 A H, 232 A BI 3. The applicability of sub section 4 cannot be confined to cases where notifications are issued with retrospective effect under sub section 2. Sub section 4 is not so confined. It applies to all cases of decrees or orders made before the extension of a State Legislation to a Cantonment area irrespective of the question whether such extension is retrospective or not. The essential condition to be fulfilled is that the decree or order must have been made as if the State Legislation was already in force, although. strictly speaking, it was not so in force. Subsection 4 is wide enough to save all decrees and orders made by the wrong application of State rent control and house accommodation legislation to a Cantonment area, though such State Legislation could not in law have been applied to cantonment areas at the time of the passing of the decrees or order. The decree obtained by the respondent is saved by the pro visions of section 3, sub section 4 of the Cantonment (Extension of Rent Control Laws) Act 22 of 1957, as amended by Act 22 of 1972. [232 E F] 4. If the decision in the previous proceeding was to be regarded as res judicata it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature. [234 A] In the present case, the executing Court had refused to exercise jurisdiction and to execute the decree on the ground that the decree was a nullity as the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, had no application to buildings in Cantonment areas. That defect having been re moved and all decrees obtained on the basis that the Bombay rent law applied to the Kirkee Cantonment area having been validated by Act 22 of 1972, it cannot be said that the earlier decision holding that the decree was a nullity operated as res judicata. [234 B D] Mathura Prasad Bajoo Jaiswal and ors. vs Dessibai N. B. Jeejeebhoy, (@) 836: followed.

The respondent, who was a displaced person from West Pakistan, was allotted certain land in India and was given its possession. At the time of consolidation of holdings in 1960 the Consolidation Officer included a part of this land comprising 13 odd acres in the area of the Custodian. The respondent 's representations protesting against the action of the Consolidation Officer having failed at the different levels, the respondent moved the High Court under article 226 of the Constitution. The High Court set aside the impugned orders of the Consolidation Officer on the ground that they were wholly without jurisdiction and that the concerned officer was not authorised to allot to the appellant the land which was already comprised in a subsisting valid allotment made to the respondent. On the question whether the land in dispute which had already stood allotted in favour of the respondent could be allotted in favour of others without notice to the respondent and without affording an opportunity of being heard. ^ HELD: The respondent had succeeded in establishing that permanent proprietary allotment of the land in dispute was validly made in his favour. Therefore the respondent had enforceable right in respect of the land and it could not be allotted in favour of others. [1292F G] Although in certain contingencies it would be open to the Managing Officer or the Managing Corporation to cancel the allotment under section 19 of the read with Rule 102 of the Displaced Persons (Compensation and Rehabilitation) Rules 1955, it can not be done unless the allottee is given a reasonable opportunity of being heard. [1293F] In the instant case no action for cancellation of allotment was taken under the provisions of the Act and the Rules. The action of the Naib Tehsildar cum Managing Officer in allotting to the appellant the land which had already stood in the name of the respondent without complying with the relevant provisions of the Act was in flagrant violation of the provisions of the law. Therefore, the impugned orders were manifestly illegal, arbitrary and unjust and could not be sustained. [1293H]

Jamunadas C. Tuliani is the owner and the landlord of the suit premises. He instituted a suit for ejectment against five defendants on the ground that they were tenants of the said premises and were in arrears of rent for a period of more than six months which had not been paid inspite of notice having been served on them as required by Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates, Control Act, 1947 (hereinafter referred to as the Act) and were consequently liable for eviction under sub section 3(a) of the Act as it then stood. Two other grounds were that the tenants had changed the user of the suit premises and they had committed breach of the terms and conditions of the tenancy. Subsequently Arjun Khiamal Mak hijani was impleaded as defendant No. 6 in the suit on the assertion that the tenants had illegally sub let a portion of the premises namely garage to him and were thus liable to be evicted on that ground also. The Trial Court decreed the suit in favour of the land lord on the plea of default in payment of rent and illegal sub letting. The other two pleas that the tenants had changed the user of the suit premises and had committed breach of terms and conditions of tenancy were decided against the landlord. Two appeals were preferred against the judgment of the Trial Court, one by the tenants and the other by the defend ant No. 6 and both these appeals were dismissed. Aggrieved by the said decree the tenants and defendant No. 6 filed two writ petitions in the High Court. Against the common judg ment of the High Court dismissing these writ petitions, the present civil appeals have been preferred. 381 Dismissing both the appeals, the Court, HELD: (i) On a plain reading of clause (a) of sub sec tion (3) of section 12 of the Act as it stood at the rele vant time, the said clause was clearly attracted and the consequence provided therein had to follow namely a decree for eviction against the tenants had to be passed. Clause (b) of sub section (3) of the face of it was not attracted inasmuch as the said clause applied only to a case not covered by clause (a). This is amply borne out by the use of the opening words "In any other case" of clause (b). [387A B] (ii) Article 142 of the Constitution does not contem plate doing justice to one party by ignoring mandatory statutory provisions and thereby doing complete injustice to the other party by depriving such party of the benefit of the mandatory statutory provisions. [390B] (iii) In a case where a tenant renders himself liable to be evicted on the ground of being defaulter in the payment of rent as contemplated by sub sections (2) and 3(a) of Section 12 of the Act, bar from the way of the landlord in instituting a suit for ejectment of a tenant is removed and he gets a right to have a decree for eviction. Such removal of bar is not in any sense forfeiture of any rights under the lease which the tenant held. In the instant case, the suit was not based on such forfeiture of lease under the Transfer of Property Act but was filed for the enforcement of the statutory right conferred on the landlord by sub sections (2) and 3(a) of Section 12 of the Act. [391D; 391H;392A] (iv) The tenants are not entitled even to the benefit of the amended sub section (3) of Section 12 of the Act inas much as on a plain reading of the sub section it is not possible to give it a retrospective operation. [392C ] The date fixed for settlement of issues in a suit cannot be equated with any other date or dates which may be fixed in the suit or the appeal. [393C] The words "on or before such other date as the Court may fix" occurring after the words "on the first day of the hearing of the suit" in sub section (3) of Section 12 of the Act were obviously meant to meet a situation where for some inevitable reason the necessary deposit could not be made on the day of the hearing of the suit and the Court extended the time to make such deposit. [393D] 382 By taking recourse to the process of reopening of pro ceedings one cannot put the hands of the clock back and create an artificial date as the "first day of the hearing of the suit." [393H; 394A] (v) Interpretation of statutes: "When the Act contains provisions, some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord, the assertion that even with regard to such provisions of the Act which fail under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenants. The argument indeed is self defeating and only justifies the cynical proverb Head I win tail you lose. It is difficult to countenance the sentimental approach made by learned counsel for the tenants, for the simple reason that as pointed out in Latham vs R. Johnson and Nephew Ltd., (408) sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles." [389B D] Harbanslal Jagmohandas and Anr. vs Prabhudas Sivlal, [1977] 1 SCC page 576; Jaywant section Kulkarni & Ors. vs Mino char Dosabhai Shroff & Ors., [1988] 4 SCC P. 108; Ganpat Ram Sharma & Ors. vs Gayatri Devi, [1987] 3 SCC P. 576; Ganpat Ladha vs Sashikant Vishnu Shinde, [1978] 2 S.C.C.P. 573; Latham vs R. Johnson & Newhew Ltd., (408); Vatan Mal vs Kailash Nath, [1989] 3 S.C.C.P. 79; B.P. Khemda Pvt. Ltd. vs Birendra Kumar Bhowmick & Anr., [1987] 2 S.C.R.P. 559; Smt. Kamala Devi Budhia & Ors. vs Hem Prabha Ganguli & Ors., [1989] 3 S.C.C.P. 145; Praduman Kumar vs Virendra Goyal (Dead) by L.Rs., [1969] 3 S.C.R.P. 950; S.D. Chagan Lal vs Dalichand Virchand Shroff & Ors., [1968] 3 S.C.R.P. 346 and Nagindas Ramdas vs Dalpatram Ichharam, [1974] 1 S.C.C.P. 242, referred to.

The respondents, who lost the State Assembly elections as candidates of the Mezo National Front(MNF) from different constituencies of Mizoram, challenged the election of the Congress (I) candidates on the ground of corrupt practices in the High Court. The appellants the returned candidates raised certain preliminary objections regarding the maintainability of each petition. On the basis therefore two preliminary issues were raised for consideration. The appellants moved for striking off the pleadings. Thereupon, the original petitioners the respondents applied for amendment of their election petitions which was strongly opposed by the appellants. The preliminary objections, the applications for striking off the pleadings and the amendment applications were heard together. The two preliminary issues raise were (i) whether the election petitions were in conformity with the requirements of Section 81 and 83 753 of the Representation of the Peoples Act, 1951 and the Rules framed thereunder by the High Court and (ii) whether rule 1 and the other related rules and notes thereto enabling the filing of the Election Petition before the Stamp Reporter assigned to the election court by the Chief Justice were ultra vires Article 329 of the Constitution and Section 169 read with Sections 80, 80A and 81 of the R.P. Act. The appellants contended that the election petitions being photo copies, could not be treated as election petitions as contemplated by law; that the copies of petitions served on them were not attested to be true copies of the original petitions as required by Section 81(3); that the election petitions were not signed and verified in the manner laid down by the Code of Civil Procedure inasmuch as the source of information had not been disclosed in the verification or in the affidavit in Form 25 as required by rule 94A of the Conduct of Election Rules, 1961 (the Rules); that no schedule of material particulars of corrupt practice had been annexed to the affidavit purporting to be under Form 25, and that the presentation of the election petitions before the Stamp Reporter was inconsistent with Sections 80, 80A and 81 of the R.P. Act and Article 329 of the Constitution. The averments in each election petition were identical. The High Court rejected the preliminary objections and party allowed the applications for striking off the averments in the election petitions and partly permitted certain amendments to the election petitions, against which order the present appeals are filed in this Court under Article 136 of the Constitution. The returned candidate the appellant contended that paragraph 3 of the election petition was the most crucial paragraph inasmuch as it disclosed the names of towns and villages as well as the period during which the alleged corrupt practices were committed had been deliberatedly omitted from the verification clause and the affidavit; that failure to mention paragraph 3 of the election petition in both the verification clause of the petition and the affidavit was fatal and cannot be cured after the expiry of the limitation period of 45 days; that the affidavit was not in Form No. 25 prescribed under Rule 94A of the Rules and since Section 83 of the R.P. Act is mandatory and failure to adhere to Form No. 25 was fatal, as the doctrine of substantial compliance had no place in election law but even if that doctrine could be invoked, the respondent failed to make substantial compliance; that the election petitions being photocopies could not be entertained as valid 754 election petitions; that copies of the election petitions served on the returned candidates were not attested as true copies of the original as required by Section 81(3); that the election petitions and the schedule and annexures were not signed and verified as required by the Code; that an election dispute founded on the allegation of corrupt practice being quasi criminal in nature calls for strict adherence to the requirements of election law as was evident from Section 86(I) of R.P. Act which provided for dismissal of an election petition which failed to comply with the requirements of Section 81, 82 or 117 of the statute; and that if the Code did not apply to Mizoram, it applied to an election petition because section 83(I)(c) obligates that an election petition `shall be signed by the petitioner and verified in the manner laid down in the Code for the verification of pleadings '. This Court partly allowing the appeals, HELD: 1. Our election law being statutory in character must be strictly complied with since an election petition is not guided by ever strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character it is essential that it must conform to the requirements of our election law. But at the same time the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation. If the returned candidate is shown to have secured his success at the election by corrupt means he must suffer for his misdeeds. [772B D] 2. A charge of corrupt practice has a two dimensional effect; its impact on the returned candidate has to be viewed from the point of view of the candidate 's future political and public life and from the point of view of the electorate to ensure the purity of the election process. There can, therefore, be no doubt that such an allegation involving corrupt practice must be viewed very seriously and the the High Court should ensure compliance with the requirements of Section 83 before the parties go to trial. [783D E] 3. What is essential is that the petitioner must take the responsibility of the copy being a true copy of the original petition and sign in token thereof. No particular form of attestation is prescribed; all that the sub section enjoins is that the petitioner must attest the copy under his own signature to be a true copy of the petition. By certifying the same as true copy and by putting his signature at the foot thereof, the petitioner of each election petition had clearly complied with the letter and spirit of section 81(3) of the R.P. Act. [786A B] 755 4. Section 86(I) mandates that the High Court `shall ' dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the R.P. Act. The language of this sub section is quite imperative and commands the High Court, in no uncertain terms, to dismiss an election petition which does not comply with the requirements of section 81 of section 82. [773B D] 5. Election of a returned candidate can be rendered void on proof of the alleged corrupt practice. In addition thereto he would incur a subsequent disqualification also. This harshness is essential if we want our democratic process to be clean, free and fair. Eradication of corrupt practice from our democratic process is essential if we want it to thrive and remain healthy. Our democratic process will collapse if unhealthy corrupt practices like appeals to voters on basis of caste, creed, community religion, race, language, etc., are allowed to go unchecked and unpunished. Use of corrupt practices in elections to secure short term gains at the cost of purity of our democratic process must be frowned at by every right thinking citizen. [773D F] 6. It is for that reason that the law has provided for double jeopardy to deter candidates, their agents and others from indulging in such nefarious practices, their agents and others from indulging in such nefarious practices. But while there is sufficient justification for the law to be harsh with those who indulge in such practices, there is also the need to ensure that such allegations are made with a sense of responsibility and concern and not merely to vex the returned candidate. It is with this in view that the law envisages that the particulars of such allegations shall be set out fully disclosing the name of the party responsible for the same and the date and place of its commission. A simple verification was considered insufficient and, therefore, the need for an affidavit in the prescribed form. These procedural precautions are intended to ensure that the person making the allegation of corrupt practice realises the seriousness thereof as such a charge would be akin to a criminal charge since it visits the party indulging in such practice with a two fold penalty. [773E H] 7. If full particulars of an alleged corrupt practice are not supplied, the proper course would be to give an opportunity to the petitioner to cure the defect and if he fails to that opportunity that part of the charge may be struck down. [775F G] 8. Once the amendment sought falls within the purview of section 86(5), the High Court should be liberal in allowing the same unless, in the facts and circumstances of the case, the Court finds it unjust and 756 prejudicial to the opposite party to allow the same. Such prejudice must, however, be distinguished from mere inconvenience. [775G H] 9. The power conferred by section 86(5) cannot be exercised to allow any amendment which will have the effect of introducing a corrupt practice not previously alleged inthe petition. If it is found that the proposed amendments are not in the nature of supplying particulars but raise new grounds, the same must be rejected but if the amendments are sought for removing vagueness by confining the allegations to the returned candidate only such an amendment would fall within the parameters of section 86(5) of the R.P. Act. [789B D] 10. Clause(c) of sub section 83 provides that an election petition shall be signed by the petitioner and verification of the pleadings. Under section 83(2) any schedule or annexure to the pleading must be similarly verified. Order 6 Rule 15 is the relevant provision in the Code. Sub rule (2) of Rule 15 says that the person verifying shall specify with reference to the numbered paragraphs of the pleading, what he verifies on his own knowledge and what he verifies upon information received and believed to be true. The verification must be signed by the person making it and must state the date on and the place at which it was signed. The defect in the verification can be (i) of a formal nature and not very substantial (ii) one which substantially complies with the requirements and (iii) that which is material but capable of being cured. [776A C] 11. The object of requiring verification of an election petition is clearly to fix the responsibility for the averments and allegations in the petition on the person signing the verification and at the same time discouraging wild and irresponsible allegations unsupported by facts. [776C D] 12. In cases where corrupt practice is alleged in the petition, the petition shall also be supported by an affidavit in the prescribed form, i.e. Form No. 25 prescribed by Rule 94A of the Rules. [776D E] 13. While defective verification or a defective affidavit may not be fatal, the High Court should ensure its compliance before the parties go to trial so that the party required to meet the charge is not taken by surprise at the actual trial. [783E F] 14. The charge of corrupt practice has to be proved beyond reasonable doubt and merely preponderance of probabilities. 757 Allegation of corrupt practice being quasi criminal in nature, the failure to supply full particulars at the earliest point of time and to disclose the source of information promptly may have an adverse bearing on the probative value to be attached to the evidence tendered in proof thereof at the trial. Therefore, even though ordinarily a defective verification can be cured and the failure to disclose the grounds or sources of information may not be fatal, failure to place them on record with promptitude may lead the court in a given case to doubt the veracity of the evidence ultimately tendered. If, however, the affidavit of the schedule or annexure forms an integral part of the election petition itself, strict compliance would be insisted upon. [783G 784B] 15. The requirements of section 81(3) are mandatory and failure to comply with them would render the petition liable to summary dismissal under section 86(I) of the R.P. Act. [784G] 16. If a document does not form an integral part of the election petition but is merely referred to in the petition or filed in the proceedings as evidence of any fact, failure to supply a copy thereof will not prove fatal. Therefore the maintainability of an election petition will depend on whether the schedule or annexure to the petition constitutes an integral part of the election petition or not. If it constitutes an integral part it must satisfy the requirements of section 81(3) and failure in that behalf would be fatal. But if it does not constitute an integral part of the election petition, a copy thereof need not be served along with the petition to the opposite party. [787A C] 17. The High Court is directed to issue directions to the election petitioner of each petition to remove the defects within such time as it may allow and if they or any of them fail to do so, pass appropriate consequential orders in accordance with law. [789A B] Gurumayam section Sarma vs K. Ongbi Anisija Devi, Civil Appeal No. 659 of 1957 dated 9.2.1961; State of Nagaland vs Rattan Singh; , ; V.L.Rohlus vs Deputy Commissioner, Aizawal, ; Raj Narain vs Indira Gandhi; , at 1307: ; ; Manphul Singh vs Surinder Singh, [1973] 2 SCC 599 at 608; K.M. Mani vs P.J. Antony, ; ; Samant N. Bal Krishna vs George Fernandez, ; ; D.P. Mishra vs Kamal Narayan Sharma, ; ; Balwan Singh vs Lakshmi Narain, ; Murarka Radhey Shyam vs Roop Singh Rathore; , ; State of Bombay vs Purushottam Jog Naik; , ; The Barjum Chemicals Ltd. The Company Law 758 Board, [1966] Supp. SCR 311; K.K. Nambiar vs Union of India, ; at 125; Jadav Gilua vs Suraj Narain Jha, AIR 1974 Patna 207; M/s Sunder Industries Ltd. vs G.E. Works, AIR 1982 Delhi 220; K.K. Somanathan vs K.K. Ramachandran, AIR 1988; Kerala 259; Kamalam vs Dr. Syed Mohammad, ; ; M/s. Sukhwinder Pal vs State of Punjab, ; ; Z.B. Bukhari vs Brij Mohan, ; Prabhu Narayan vs K.K. Srivastava, ; ; Satya Narain vs Dhuja Ram, ; ; M. Karunanidhi vs Dr. H.V. Hande, ; Mithlesh Kumar Pandey vs Baidyanath Yadav, [1984] 2 SCR 278; Rajender Singh vs Usha Rani, [1984] 3 SCC 339; U.S. Sasidharan vs K. Karunakaran; , and Ch. Subba Rao vs Member, E.T. Hyderabad, Referred to. When by the same statute the words `Election Commissioner ' were substituted by the expression `High Court ' with effect from December 14, 1966. Even though by the said Amendment Act jurisdiction was conferred on High Court in place of the Election Commission, surprisingly the title of chapter II continues to read `Presentation of election petitions to Election Commission '. Parliament will well to correct this slip by substituting the words `High Court ' for the expression `Election Commission ' to bring it in conformity with the changes introduced by Act 47 of 1966. [768E F]

This was a petition challenging the constitutional validity of section 295A of the Indian Penal Code and for quashing the petitioner 's conviction thereunder for publishing an article in a monthly magazine of which he was the printer, publisher and the editor. It was contended on his behalf that the impugned section infringed his fundamental right to freedom of speech and expression conferred by article 19(1)(a) of the Constitution and was not a law imposing reasonable restrictions on the right in the interests of public order under cl. (2) of article 19, which alone could have afforded a justification for it. Held, that section 295A of the Indian Penal Code was well within the protection of Cl. (2) of article 19 of the Constitution and its validity was beyond question. The expression "in the interests of" occurring in the amended Cl. (2) of article 19 had the effect of making the protection afforded by that clause very wide and a law not directly designed to maintain public order would well be within its protection if such activities as it penalised had a tendency to cause public disorder. Debi Soron vs The State of Bihar, A.I.R. (1954) Pat. 254, referred to. It was absurd to suggest that insult to religion as an offence could have no bearing on public order so as to attract cl. (2) Of article 19 in view of the provisions of articles 25 and 26 of the Constitution which, while guaranteeing freedom of religion, expressly made it subject to public order. 861 Nor, having regard to the language and ingredients of section 295A of the Indian Penal Code, could it be contended that the restrictions imposed by it could be used for purposes other than those falling within the limits of the Constitution. Romesh Thappar vs The State of Madras, ; ; Brij Bushan vs The State of Delhi, ; and Chintaman Rao vs The State of Madhya Pradesh, (1950) S.C.R. 759, held inapplicable.

Appeal No. 41 of 1960. 38 294 Appeal from the judgment and decree dated April 28,1958, of the Patna High Court in appeal from Original Decree No. 70 of 1953. L. K. Jha, A. K. Jha, section section Shukla, E. Udayarathnam and K. K. Sinha, for the appellant. Lal Narayan Sinha, Bajrang Sahay and section P. Varma, for the respondent No. 1. 1961. April 24. The Judgment of the Court was delivered by AYYANGAR, J. This appeal comes before us on a certificate granted by High Court of Patna under article 133(1) of the Constitution. The appellant had filed a suit against the State of Bihar before the Subordinate Judge, Daltonganj and had succeeded in obtaining a decree in his favour the details of which we shall presently narrate. The State preferred an appeal to the High Court and by the judgment now under appeal the learned Judges of the High Court had allowed the appeal and dismissed the suit with costs, and the plaintiff has come upon appeal to this court. The facts giving rise to the suit and the appeal may now be briefly stated. The village of Jun in the district of Palamau in the State of Bihar was within the estate of the Raja of Ranka. This proprietor had granted a mokarari lease of the village which consisted mostly of forest lands, in favour of certain persons who have been referred to in these proceedings as the Manjhis. The Manjhis in their turn entered into a registered agreement on February 23, 1946, with Gurudutt Sharma the appellant before us, whereby the latter was, in consideration of the payment of a sum of Rs. 6,000, granted the right to cut and remove bamboos and certain other timber to be found in a specified area of this forest village. This right the appellant was to have for a period of 8 years ending on March 1, 1954. By a further deed executed on March 15, 1946, which was however unregistered, the Manjhis granted to the appellant the right to pluck, or collect and carry away bidi leaves in the same forest area for 295 a period of 9 years ending March 1, 1955, for a con sideration of Rs. 200. It is the case of the appellant that immediately after these deeds were executed, he started cutting the trees and otherwise exercising the rights granted to him under them. Meanwhile the Governor of Bihar who had, by proclamation issued by him under section 93 of the Government of India Act, 1935, assumed to himself the powers vested in the Provincial Legislature, enacted in exercise of the powers so assumed, the Bihar Private Forests Act, 1946 (Bihar 3 of 1946). It is the validity of this enactment and the interpretation of its provisions and. of the similar provisions in the Bihar Private Forests Act, 1947 (Bihar 9 of 1948), by which it was repealed and reenacted, that form the main subject of controversy in this appeal. It is therefore necessary to set out certain of the relevant provisions and also the action taken under them in order to appreciate the contentions raised by learned Counsel for the appellant. The Governor 's Act of 1946 extended to the whole of the Province of Bihar and came into force on February 25, 1946, when having received the assent of the Governor General it was first published in the Bihar Gazette. There were certain forests which were excepted from the operation of this Act by its second section, but the forests in the village of Jun with which this appeal is concerned were not among them. The Act contained the definition of a "landlord" as meaning 'the owner of the estate or tenure in which a forest is comprised who is entitled to exercise any rights in the forests '. It is obvious that the Manjhis would be "landlords" within this definition. Section 4 of this Act enacted: "The rights of the landlord and. the rights of any other person to cut, collect or remove trees, timber or other forest produce in or from. in any forest shall not be exercised in contravention of the provisions made in or under this Act. " There were other restrictions oil the rights of landlords or persons claiming through them but these are not very material for the point required to be decided in this appeal. Chapter III of this enactment which 296 comprised sections 13 to 30 dealt with "private protected forests" which were defined in section 3(10) as 'a forest specified in a notification issued under sub section (1) of section 29 '. Section 13 with which this Chapter opens made provision for the Provincial Government, "if satisfied that it was necessary in the public interest to apply the provisions of this Chapter to any private forest" to constitute such forest "a private protected forest. " Section 14 required the Government, when proposing to constitute a private forest as a "private protected forest" "to issue a notification (a copy of which shall be served on the landlord in the prescribed manner) (a) declaring its proposal, (b) specifying the situation and limits of the forests and stating that landlords whose interests are likely to be affected by the constitution of the private protected forests to state their objections in writing against the proposal." Section 15 prescribed the procedure for hearing the objections which might be presented under section 14 and after the disposal of the objections a notification might issue declaring "that it has been decided to constitute" a demarcated area as "a private protected forest" and for other consequential matters including the determination of the existence and nature of rights other than those of the landlords in or over such forests. After the issue of the notification under section 15, the Forest Settlement Officer was required by section 16 to publish a proclamation in the village in the neighborhood of the forest requiring persons claiming rights other than those of a landlord, to appear before him and state the particulars thereof and the compensation which they claimed for the infringement of their rights. Sections 17 and 18 dealt with the enquiry by the Forest Settlement Officer in respect of these objections and his powers in doing so. Section 19 made provision for the extinction of the rights and claims which had not been preferred in response to a notification under section 16 unless the officer was satisfied that the same was not made for sufficient cause. Section 29 enacted: "29. (1) When the following events have occurred, namely: (a) the period fixed under section 16 for preferring 297 claims has elapsed, and all claims, if any, made under sections 16 and 22 have been disposed of by the Forest Settlement Officer; and (b) if any such claims have been made, the period limited by section 26 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer, the Provincial Government shall publish a notification in the official Gazette, specifying definitely according to boundary marks erected or otherwise, the limits of the forest which is to be constituted a private protected forest, and declaring the same to be a private protected forest from a date fixed by the notification, and from the date so fixed such forest shall be deemed to be a private protected forest: Provided that, if in the case of any forest in respect of which a notification under section 14 has issued, the Provincial Government considers that the enquiries, procedure and appeals referred to in this Chapter will occupy such length of time as in the meantime to endanger the conservation of the forest, the Provincial Government may, pending the completion of the said enquiries, procedures and appeals, declare such forest to be a private protected forest, but not, except as provided in sections 20 and 21, so as to abridge or affect any existing rights. (2) Any declaration made in respect of any forest by the Provincial Government under the proviso to sub section (1) shall cease to have effect from the date of any final order passed under section 15 directing that the proposal to constitute such forest a private protected forest shall be dropped, or of any order passed under sub section (1). " But pending this notification by which "a private protected forest" was constituted there were provisions for keeping things in status quo and for the extinguishment of rights by payment of compensation of the interests of persons who were not landlords. Section 20 imposed a ban on landlords entering into 298 contracts with any other person conferring on the latter the right to cut, collect or remove trees, timber or other forest produce after the issue of a notification under section 14. Having thus dealt with the landlord, section 21 proceeded to enact a similar ban to have effect between the date of the notification under section 14 and the formal constitution of "a private protected forest" by a notification under section 29 against the cutting, collection or removal of trees by every person including the landlord as well as any person claiming rights under him. Section 22 laid down the procedure for dealing with claims of persons who had entered into contracts with landlords whereby they had obtained the right to cut, collect and remove trees, timber or other forest produce etc. It also made provision for the payment of compensation to such contractors. Sections 23 to 28 made provision for miscellaneous matters to which it is not necessary to refer. There are other provisions which are material for the points raised in this appeal but to these we shall advert later. To resume the narration of facts, there was issued on October 14, 1946 a notification under sections 14 and 21 under Bihar Act III of 1946 of which the operative words were: "In exercise of the powers conferred by section 14 of the said Act the Governor is pleased to declare his intention of constituting the said forest (described in the 1st Schedule hereto annexed) a private protected forest and direct that any landlord whose interests are likely to be affected by the said declaration may, within 3 months from the date of this notifi cation, present to the Deputy Collector of Palamau an application in writing stating his objection to the said forest being constituted a private protected forest. " The notification contained a further paragraph containing a direction purporting to be by virtue of the power contained in section 21 "to prohibit every person from cutting, collecting or removing any tree or class of trees from the forests until the publication of the notification under section 29 of the Act." In the Schedule 299 annexed, village Jun was included with details of its location. Against the column headed "Name of the proprietor" was entered the Raja of Ranka though, as stated already, the rights over the forest had passed to the Manjhis whose name had been entered in the revenue records. It is stated that until October 21, 1946 no rules had been framed under the Act prescribing the form and contents of the notification and of the procedure to be followed in the issue of the notification as well as for the conduct of the subsequent proceedings. Immediately on the issue of this notification the officials of the respondent State prevented the appellant from working the forest any further. The appellant at first took proceedings on the basis of his rights under the Act. Meanwhile as the life of the Bihar Act III of 1946 was limited by the terms of section 93 of the Government of India Act, 1935, the Legislature of the Province of Bihar enacted the Bihar Private Forests Act, 1948 (Act IX of 1948), repealing and reenacting the Governor 's Act. This enactment came into force on March 3, 1948 and its terms, subject to immaterial variations, were identical with those contained in the Governor 's Act which it replaced. The proceedings taken by the appellant continued even after Act IX of 1948 came into force. But it is not necessary to refer to the steps taken by the appel lant to assert certain rights and prefer certain claims under this enactment, because they either failed or were withdrawn at a later stage and nothing turns on them. Having failed in these proceedings under the Act, the appellant filed the suit which has given rise to the present appeal T. section 1 of 1952 in the Court of the Subordinate Judge of Daltonganj impleading the State of Bihar and one A. R. Chaudhuri to whom the right to cut and collect bamboo and timber in a portion of the area covered by the appellant 's contract was granted by the Government, as the second defen dant. The plaint set out the various proceedings which the plaintiff had taken under the Act, but the grounds on which he sought the reliefs claimed were 300 rested on: (1) The Forest Acts of 1946 and 1948 were unconstitutional and void as being in contravention of the provisions of the Government of India Act, 1935. (2) That even if valid when originally enacted, their provisions violated the fundamental rights guaranteed by Part III of the Constitution and could not therefore be operative or be enforced after January 26, 1950. (3) The proceedings by which the suit forest was declared "a private protected forest" were illegal and invalid principally for the reasons that (a) the notification under section 14 did not conform to the requirements of the statute, (b) the notices required to be served on the landlord under the Act were not served, and (c) the notifications were not properly published in the village as required by the Act. Based on these grounds, the reliefs sought in the plaint were set out in para. 17 and of these the material ones were: (1) a declaration that the plaintiff had a right to work the forests by cutting and carrying away the trees, timber etc. and the bidi leaves which he was entitled to do under the deeds dated February 23, 1946 and March 15, 1946, executed by the Manjhis in his favour unaffected by the Bihar Private Forests Act, the validity of the proceedings under which was impugned, (2) a decree for Rs. 55,000 being the estimated damages suffered by the plaintiff by reason of the wrongful acts of the Government, (3) restoration to possession of the forest lands included in the two deeds, and (4) for mesne profits. The learned Subordinate Judge who tried the suit, though he held the Act valid, accepted the plaintiff 's contention that the notifications issued under section 14 and the other provisions of Chapter III of the Act were invalid, primarily for the reason that the name of the Manjhis as the landlord had not been mentioned in the notification issued under section 14 and on this ground he passed a decree directing the State to restore possession of the forest to the plaintiff so as to enable him to enjoy the same for a substituted period making allowance for the 7 1/2 months for which he had worked the jungle before his enjoyment was interfered in October 1946. In this view the claim for 301 damages for Rs. 55,000 and for mesne profits was disallowed. The State filed an appeal to the High Court of Patna from this judgment and decree. The learned Judges reversed the decree of the Subordinate Judge and dismissed the suit with costs, holding that the omission of the name of the Manjhis in the notification issued on October 14, 1946, did not render the same invalid and that even otherwise the proceedings under Ch. III of the Act had been validated by section 2 of Act XII of 1949 to whose terms we shall refer in due course. In view of the previous decisions of the High Court which upheld the constitutional validity of the Bihar Private Forests Act, that point was not pressed in the High Court. The plaintiff thereafter applied to the High Court for a certificate under article 133(1)(a) of the Constitution and having obtained it has preferred the present appeal. In the petition of appeal as originally filed, the constitutional points regarding the validity of the Private Forests Act were not raised, but subsequently the appellant filed an application under O. XVIII, r. 3(2) of the Supreme Court Rules for permission to urge additional grounds in support of the appeal which we granted. The principal ground urged in this application was that the main operative provisions of the Bihar Private Forests Act, both as originally enacted in 1946 as well as when reenacted in 1948, were unconstitutional as contravening the requirements of section 299(2) of the Government of India Act, 1935. We consider that it will be convenient to deal first with the point as to whether, assuming that the Bihar Private Forests Act, 1946 and 1948 were valid, the proceedings under Chapter III of the Act for declaring the village of Jun as "a private protected forest" were legal before considering the question as to the constitutionality of the Act raised by the additional grounds urged before us. As would have been noticed even from the narration of the facts, the principal point urged for impugning the validity of the proceedings under Ch. III of the Act was that the Manjhis, 39 302 whose name had been entered in the record of rights as the land holders of the suit village of Jun had not been set out in the notification published under section 14 of the Act and this was the ground upon which the learned Subordinate Judge decided the suit in favour of the appellant. The provisions of section 14 are in these terms: "14. Whenever it is proposed by the Provincial Government to constitute any private forest a private protected forest, the Provincial Government shall issue a notification (a copy of which shall be served on the landlord in the prescribed manner)(a) declaring that it is proposed to constitute such forest a private protected forest; (b) specifying as nearly as possible, the situation and limits of such forest; and (c) stating that any landlord whose interests are likely to be affected if such forest is constituted a private protected forest may, within such period, not being less than three months from the date of the notification, as shall be stated in the notification, present to the Collector in writing any objection to such forest being constituted a private protected forest. Explanation For the purpose of clause (b), it shall be sufficient to describe the limits of the forest by roads, rivers, ridges or other well known or readily intelligible boundaries. " It would be seen that section 14 contemplates two stages: (1) the issue of a notification, and (2) the service of the notification, as issued, on the landlord which has to be in the prescribed manner. The expression 'Landlord ' is defined in section 3(6) as: "the owner of the estate or tenure in which a forest is comprised who is entitled to exercise any rights in the forest. " So far as the notification itself is concerned, which provision is made for the specification of the three matters which are set out in sub cls. (a), (b) and (c), there is no requirement in terms, that the name of the landlord should be set out. It will further be observed that the notification enables any person claiming 303 interest as a landlord and who considers that his interests are likely to be affected by the proceedings taken to prefer his objections to the declaration as a "private protected forest". In other words, the notification is a general notice and its aim is to specify the land in respect of which the declaration is proposed to be made, so that the emphasis is more upon the identity of the land than about the person who owns the land or has rights over it. Besides, the section in terms specifies what the legal and essential requirements as regards the contents of the notification are and the ordinary rule of construction would point to those requirements being exhaustive of what the law demands. If therefore the specification or mention of the name of the landlord is not an express requirement of the section, is such a specification or mention a requirement by any necessary intendment? We have already set out the text of the impugned notification dated October 14, 1946, and it would be seen that it did mention the name of the landlord, but this was incorrect in the sense that the Raja of Ranka who was the proprietor of the estate but who had parted with his rights over the forests by a mokrari lease in favour of the Manjhis was shown as the landlord instead of the Manjhis. It was never the case of the appellant that the mention of the proprietor 's name in the notification misled him or anyone as regards the identity of the land. We might also mention that Mr. Jha, learned Counsel for the appellant admitted that he could not impugn the validity of the notification if notwithstanding that the name of the landlord specified was incorrect, the notification was served upon the proper landlord, It is also common ground that the appellants took part in the proceedings under Ch. III, so that he knew the identity of the property which was intended to be dealt with by the notification. The succeeding provisions of the enactment far from supporting the case that the correct specification of the name of the landlord is a legal pre requisite of a valid notification, points to the conclusion that so far 304 as the notification is concerned the name of the landlord is not a legal requirement. For instance, reference may be made to section 21 where provision is made for the issue of an order prohibiting, until the date of the publication of a notification under section 29, the cutting, collecting or removal of any trees in any forest. Such an order might be issued simultaneously with a notification under section 14 and the order is "to be published in the neighbourhood of the forest". Provisions of this sort indicate what we have already mentioned, that the emphasis in the notification is on specification of the land and not so much on who the owner or the person interested in it was. We are therefore clearly of the opinion that the learned Judges of the High Court were right in holding that the notification under section 14 did not contravene the statute. The next question that arises is whether the notification which was legal under section 14, had been properly served on the interested persons as required by the provisions of Ch. The principal point that was urged to call in question the validity of the service of the notifications was based on the fact that the notices had to be served under the terms of section 14 "in the prescribed manner" and that the rules which prescribed the manner of service were framed and issued only on October 21, 1946, with the result that any service of notice effected before that date could not be deemed to be a proper service or a service in accordance with the rules and therefore of the statute. We might however state that it was admitted that no notices were, in fact, served. Any enquiry, however, of the validity of the service of notices required by section 14 or other provisions of the Act or the effect of the failure to serve them has been rendered superfluous by the provisions of section 2 of the Bihar Private Forests (Validating) Act (Act XII of 1949) which enacted: "No proceeding or action taken under section 15, 21 and 29 of the Bihar Private Forests Act, 1946 or under section 15, 21 or 30 of the Bihar Private Forests Act, 1948, or under any other section of any of the said Acts from the respective dates of commencement of the said Acts, to the date of 305 commencement of this Act shall be deemed to be invalid or shall be called in question in any Court, or proceeding whatsoever merely on the ground that a copy of the notification under section 14 of any of the said Acts was not served on the landlord, or that there was any defect or irregularity in the service of such notification, nor shall any suit, prosecution or other legal proceeding whatsoever, lie in any Court of law against any servant of the crown for or on account of or in respect of any such proceeding or action taken by him." The learned Subordinate Judge, by a process of reasoning which we are unable to follow, held that the terms of this enactment were insufficient to validate the non service of the notice on the landlord as required by section 14 and the other provisions of Ch. III of the Bihar Private Forests Act. The learned Judges of the High Court, on the other hand, held and, in our opinion, correctly, that the effect of the failure to serve notices or any informality in the service of the notices required by section 14 and succeeding sections of the Act was rectified and validated by the Act. In agreement with the learned Judges of the High Court we hold that the proceedings taken under Ch. III of the Act, including the notification issued under section 14 were valid and in accordance with the law and that if the Bihar Private Forests Act were valid the plaintiff could have no legal ground of complaint which he could agitate in the suit and that the suit was therfore properly directed to be dismissed. This leaves the question of the constitutional validity of the Act for consideration. It is necessary to state at the outset, that under the deeds dated February 23, 1946 and March 15, 1946, the status of the appellant quod the Manjhis is only that of a licensee or contractor having the right to cut and remove the trees etc. and not that of a lessee. This was the conclusion reached by the Subordinate Judge on the relevant terms of the two deeds and this was apparently not even challenged in the High Court. On this basis the only provisions of the Act which could be said to directly invade the rights of the appellant are those 306 contained in Ch. III the material sections of which we have already set out. As provision is made in section 22 of the Act for the ascertainment and payment of compensation to forest contractors whose rights were either modified or extinguished, the plea that there was a violation of the guarantee against acquisition by the State without compensation contained in section 299(2) of the Government of India ' Act, 1935, would be seen to have no factual foundation. But learned Counsel for the appellant urged that the extinction of the rights of contractors under the provisions of Ch. III, was really in the nature of an ancillary provision complementary to and designed to render effective, the taking over of the management of "private protected forests" under Ch. IV (to which we shall im mediately advert) and that if the taking over of the management was constitutionally impermissible, the provisions of Ch. III must also be struck down as un constitutional. We see force in this contention and will therefore consider the constitutional validity not so much of Ch. III as of Ch. When a private forest is declared a "private protected forest" under the provisions of Ch. III the provisions of Ch. IV come into operation. Section 31 with which this Chapter opens enacts: "31. The control and management of every pri vate protected forest shall vest in the Provincial Government. " The management and control thus vested is to be exercised through forest officers and section 32 provides: "32. The Provincial Government shall, by notification, appoint a Forest Officer for the purposes of each private protected forest or of a specified portion of each private protected forest. " His powers are defined by the succeeding sections and next we have section 35 which defines the limits subject to which the landlord is permitted to remove timber and other produce from private protected forests whose control vests in the Provincial Government under section 31, and section 36 enables the Collector to grant permission to the landlord to erect embankments at suitable places within the forest for the purpose of irrigating 307 the land beyond the boundaries of the said forest. The section that follows is important and so we shall set it out in full: "37. The Provincial Government shall receive all revenues accruing from the working and management of a private protected forest and shall pay the whole expenditure incurred in the working and management of such forest, and the landlord of such forest or any other person shall not be entitled to make any objection to any expenditure that the Provincial Government may consider it necessary to incur on such working and manage ment. " Section 38 requires the Provincial Government to maintain the revenue and expenditure account with an obligation to supply an extract of the yearly account to the landlord of such forests. The disbursement of the revenues which it receives or the income which it collects under section 37 is provided for by section 39 which runs: "39. (1) The Provincial Government shall, during the period of its control and management of any private protected forest pay, at prescribed intervals, to the landlord of the forest (a) an allowance calculated on the total area of the forest as determined by the Conservator of Forests at the rate of one anna per acre per annum or such higher rate not exceeding one anna and six pies per acre per annum as the Provincial Government may, from time to time, by general or special order, determine; and (b) the net profits, if any, accruing from the working and management of the forest, (2) For the purpose of calculating the net profits, the total expenditure incurred on the working and management of the forest shall be adjusted against the total income from the working and management up to the date of account and the amount of any deficit shall be carried forward with interest at the prescribed rate from year to year till such amount is made up and surplus is effected. . . . " 308 and section 40 which might be termed a residuary provision reads: "40. The rights of right holders in a private protected forest shall be exercised in accordance with the rules. " It is only necessary to add that the provisions contained in the re enacted Act IX of 1948 are substantially identical except as to variation in the numbering of the sections and it is therefore unnecessary to cumber this judgment with a reference to the corresponding provisions of that enactment. In the main, the argument of Mr. Jha, learned Counsel for the appellant on this point was based on the reasoning contained in the judgment of a Special Bench of the Patna High Court in M. D. Kameshwar Singh vs State of Bihar (1) where the learned Judges held the Bihar State Management of Estates and Tenures Act, 1949, to be ultra vires of the powers of the Provincial Legislature as contained in the Government of India Act, 1935. The Act there impugned was one which was described as an "Act to provide for the State Management of estates and tenures in the Province of Bihar". Provision was made for Government notifying any estates or tenures in the Province and on such notification the management of the estate or tenure was to vest in an officer designated by the Act. On such management being taken over, the power of the proprietor or tenure holder to manage the estate was to cease and he was rendered incompetent to deal with or have any right to create interests in the property by way of mortgage or lease. The rents and profits accruing from the estate were to be payable to and to be collected by the Manager who alone was, under the statute competent to grant valid receipts therefor. There were special provisions empowering the Manager to order the removal of mortgagees or lessees in possession by virtue of agreements with the proprietor or tenure holder. Special provisions were also made for dealing with the claims of creditors both secured and unsecured. Section 20(5) of the Act made provision for the disposal of the (1) Patna 790. 309 income, rents and profits received by the manager. They were to be applied first for the payment of revenue to Government, then to municipal rents, next to costs of management and supervision, then for an allowance to the proprietor to be fixed by rules made by Government, and any surplus remaining thereafter was to be paid to the proprietor at, the end of each financial year with power, however, to the manager to retain such portion of the surplus which he might consider necessary as a working balance for the ensuing year. The manager was to have power to contract loans on the security of the estate or tenure. The jurisdiction of the civil courts was barred in respect of matters for which provision was made by the Act. Though there was a direction that the manager should have his accounts audited with a right to the proprietor or tenure holder to inspect these accounts, in cases however where these accounts were not audited the right of the proprietor was merely to draw the attention of the Government to the lapse, with however a bar on enforcing such rights by resort to the courts even in the event of the Provincial Government not taking any action. The validity of the enactment was challenged principally on two grounds: (1) that an Act of this sort which deprived the proprietors and tenure holders of possession of their property for no default on their part and for no justifiable reason grounded on public interest was beyond the legislative competence of the Province, (2) that even if competent, it amounted to "an acquisition of property without compensation" and for a purpose which was not a public purpose so as to be repugnant to the provisions of section 299(2) of the Government of India Act, 1935. Justice Shearer and Justice Sinha, as he then was, were of the opinion that the Act in question was beyond the legislative competence of the Province under item 21 of the Provincial Legislative List. Justice Das, as he then was, being the other learned Judge constituting the Special Bench however took the view that the variety of matters set out in Entry 21 of the Provincial Legislative List was wide enough to include legislation of 40 310 the type then before the Court. Both Sinha and Shearer JJ. were of the opinion that the Act violated the requirements of section 299(2). Learned Counsel Mr. Jha submitted that there was, under the Bihar Private Forests Act, 1946 and 1948, the same type of deprivation of possession and management of the proprietor or tenure holder, the same restrictions placed upon enjoyment, and a similar vesting of powers and duties on the officers of the State Government as the manager of the estate under the Bihar Act of 1949 and on these premises he contended that on the same line of reasoning, the Act now impugned should be held to be both beyond the competence of the Provincial Legislature as well as unconstitutional as violating the requirements of section 299(2) of the Government of India Act, 1935. Before entering on a discussion of the points urged we should add that the constitutional validity of the Acts now impugned has been the subject of decision of the Patna High Court on two occasions and these judgments are reported in Sm. Khemi Mahatani vs Charan Napit (1), and K.B.N. Singh vs State (2). In both of them the learned Judges of the High Court have distinguished the decision in Kameshwar Singh vs State of Bihar (3) and have upheld the validity of the Acts now impugned. Learned Counsel for the appellant formulated three points in support of his plea regarding the invalidity of the impugned enactment and its application to the petitioner: (1) that the Bihar Private Forests Acts of 1946 and 1948 were beyond the competence of the Provincial Government not being within the legislative entries in the Provincial Legislative List in Sch. VII of the Government of India Act, 1935, (2) that even if tile legislation was competent in the sense of being covered by the entries in the List, the same was unconstitutional as being in contravention of the constitutional requirements of section 299(2) of the same Act, (3) that even if the legislation were competent and also constitutionally valid under the Government of India Act, 1935, its provisions could not be enforced (1) A.I.R. 1953 Patna 365. (2) Patna 69. (3) Patna 790. 311 against the petitioner after the Constitution came into force on January 26, 1950, as the provisions of the enactment contravened articles 19(1)(f) and 31(2) of the Constitution. We shall now proceed to deal with these points in that order: (1) Legislative incompetence under the Government of India Act, 1935. The argument of learned Counsel on this head was half hearted and was based on reliance on passages in the judgment of the Special Bench of the Patna High Court in Kameshwar Singh vs State of Bihar(1). It is not necessary for the purposes of this case to canvass the question as to whether the taking over, for better management, of an estate in the manner as was done by the Bihar Act of 1949 is or is not within item 21 of the Provincial Legislative List in Sch. VII to the Government of India Act, 1935. The enactments now impugned are certainly in relation to "forests" and fall within item 22 of the Provincial Legislative List which reads "22. Forests". It is not necessary to decide whether entry 21 dealing with "Land etc. " would cover legislation on forests, because of the special provision in Entry 22 in relation to "forests" an entry which has come down from the Devolution Rules under the Government of India Act, 1919. In our opinion, the item "Forests" would permit all and every legislation which in pith and substance, to use a phrase familiar in this branch of the law, was on the subject of "forests". It is not possible to argue that the two Acts here impugned do not satisfy this test. Learned Counsel faintly suggested that item 22 'Forests ' would not cover legislation regarding "management" of forests. We consider this submission wholly without substance. The considerations arising from the width or amplitude to be attached to the meaning of expressions dealing with the conferment of legislative power occurring in a constitutional document should suffice to reject this submission. In this connection we might refer to the decision of the Federal Court in Administrator, Lahore Municipality vs Daulat Ram Kapur (2) which dealt with the scope (1) (1950) 1 L. R, 29 Patna 790. (2) 312 of the entry 'Salt ' in the Central Legislative List in Sch. Besides, reference may be made also to the legislative practice which preceded the Government of India Act, 1935, as having relevance to the understanding of the scope and ambit of the entry. The Indian Forests Act of 1878 which repealed the earlier enactments and consolidated the law in relation to the control over forests primarily dealt with forests which were the property of the Government or in which Government had proprietary rights. But it had also a chapter Ch. VI dealing with "control on forests or land not being the property of the Government". Section 35 of the Act enabled the local Government by a notification in the local official gazette to regulate the maintenance of forests for particular purposes and pass orders in that behalf, and section 36 enacted that "in case of neglect of, or wilful disobedience to, such regulations", and what is more important, "if the purposes of any work to be constructed under section 35 so require", the local Government may, after notice in writing to the owner of such forest or land and after considering his objections, if any, "place the same under the control of a Forest officer, and may declare that all or any of the provisions of the Act relating to reserved forests shall apply to such forest or land. The net profits, if any, arising from the management of such forest or land shall be paid to the said owner. " Statutes with similar provisions were also enacted by various local Legislatures (vide, for example, Madras Forests Act, 1882). This Central enactment of 1878 was repealed and re enacted in a consolidated form by the Indian Forests Act, 1927. Chapter V of the later statute sections 35 and 36 thereof reproduce in practically the same terms the provisions of the Act of 1878 in relation to the taking over the management of private forests. As we are now dealing with the legislative power in this regard, we are not so much concerned with the grounds upon which the Government could take over and manage forests belonging to 313 private proprietors, as with the practice of the Government taking over the management of the forests if public interests so require. This interest might vary from time to time but the above legislation would show that if public interest did require, the Act authorized Government to take over the management of private forests on terms of making over the income received to the proprietor. It is unnecessary to dilate upon the role of forests in a country whose economy is predominantly agricultural and it has been this aspect that has prompted the legislation to which we have just now adverted. Apart from being an important source of fuel and of raw materials necessary for domestic, industrial and agricultural purposes, their preservation is essential for the development of cattle wealth by providing grazing grounds. Their function in the conservation of soil fertility and in the maintenance of waterregime by improving the filth and the water holding capacity of the soil cannot be exaggerated. They protect the land against excessive soil erosion caused either by rainfall or against a desiccation and erosion by winds. Their beneficial influence on the growth of crops and on the maintenance of an equitable climate cannot be over stressed (vide First Five Year Plan, p. 285). Thanks to the inroads made on forestwealth owing to the necessities created by the war, we had the spectacle of large forest areas denuded of their timber, afforestation making either a slow progress or not attempted at all. So long as the war continued the sacrifice of the forests was one of the incidents which the country had to bear as part of the war effort but owing to the high prices of fuel and timber, the practice of denudation of forests, which started during the wartime, continued and landholders owning private forests sought to make quick gains by leasing out their forests for large scale cutting. In these circumstances public interest and national economy required that this process should be stopped and the ravages caused by wartime destruction should be made good by scientific management and regulation of forests and by a process of afforestation. It was 314 in these circumstances that in several Provinces of India during the year 1946 when these Provinces were under the rule of Governors under section 93 of the Government of India Act, 1935, enactments were passed vesting in Government power to take over and manage for the purposes abovementioned areas of forest lands belonging to private persons. The situation, therefore, demanded that there should be a large extension of the grounds upon which such private forests would be taken over for better management by the State officials as compared with Ch. V of the Indian Forests Act, 1927. The correlation between Bihar Act III of 1946 now impugned and the Indian Forests Act, 1927, is brought out in the long title of ,the former, the operative words of which are repeated in the preamble: "An Act to provide for the conservation of forests which are not vested in the Crown or in respect of which notifications and orders issued under the Indian Forests Act, 1927 are not in force. " The impugned Act was therefore an Act supplementary to, or rather a complement of the Indian Forests Act of 1927 and is clearly covered by the Entry 'Forests ' in item 22 of State Legislative List. The argument, therefore, that Entry 22 enabled a legislation to be passed in relation to "forests" but did not include therein the power to assume management and control of forests belonging to private proprietors is entirely without foundation. In view of what we have just now stated it would follow that the argument concerning the legislative competence to enact the Bihar Acts of 1946 and 1948 must be rejected. The next submission to be considered is whether the impugned enactments violate section 299(2) of the Government of India Act, 1935. Section 299(2) runs in these terms: "299(2). Neither the Federal nor a provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking, 315 unless the law provides for the payment of compensation for the property acquired and either fixes the amount of compensation, or specifies the principles on which, and the manner in which, it is to be determined. " The main, if not the entire argument of learned Counsel for the appellant on this point was vested on certain passages found in the decision of this Court in Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning & Weaving Co. Ltd. (1). The validity of the law that was there considered was a post Constitution enactment (Act XXVIII of 1950 dated April 10, 1950) which replaced an Ordinance issued in January, 1950. The rights of the appellant before this court had to be considered in the light of the guarantees contained in Part III of the Constitution. Under the provisions of the enactment there impugned the management of the Sholapur Spinning & Weaving Co. Ltd., was taken over by the Government and the question that was debated was whether this taking over amounted to "an acquisition" such as is referred to in article 31(2) of the Constitution in these terms: "31(2). No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned 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 no such law shall be called in question in any court on the ground that the compensation provided by that law is not ade quate. " Mahajan, J. (as he then was) who delivered the majority decision of the Court in dealing with this point expressed himself in these terms: "The next contention of the learned counsel that the word 'acquisition ' in article 31(2) means the acquisition of title by the State and that unless the State becomes vested with the property there can be no acquisition within the meaning of the clause (1) 316 and that the expression 'taking possession ' connoted the idea of requisition cannot be sustained and does not, to my mind, affect the decision of the case For the proposition that the expression 'acquisition ' has the concept of vesting of title in the State reliance was placed on the opinion of Latham, C. J. in Minister of State for the Army vs Dalziel . . . . . Latham, C. J., made the following observations: 'The Commonwealth cannot be held to have acquired land unless it has become the owner of land or of some interest in land. If the Commonwealth becomes only a possessor but does not become an owner of land, then, though the Commonwealth may have rights in respect to land, which land may be called property, the Commonwealth has not in such a case acquired property. . The majority of the Court held otherwise and expressed the opinion that the taking by the Common wealth for an indefinite period of the exclusive possession of property constituted an acquisition of property within the meaning of section 51 (xxxi) of the Constitution. This is what Rich, J. said, representing the majority opinion: 'It would, in my opinion, be wholly inconsistent with the language of the placitum to hold that, whilst preventing the legislature from authorizing the acquisition of a citizen 's full title except upon just terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession, indefinitely, on any terms it chooses, or upon no terms at all. ' the expression 'acquisition ' in our Constitution as well as in the Government of India Act is the one enunciated by Rich, J., and the majority of the Court in Dalziel 's case. With great respect I am unable to accept the narrow view that 'acquisition ' necessarily means acquisition of title in whole or part of the property. " Learned Counsel naturally relied on the reference to 317 the provisions of the Government of India Act contained in the above passage. Before we deal with this argument, however, we consider it proper to refer to the judgment of this Court in State of West Bengal vs Subodh Gopal Bose (1), which was composed of four of the Judges who formed the bench in the case of Dwarkadas Shrinivas, etc. (supra) and in which judgment was delivered almost at the same time (December 17 and December 18). In the West Bengal case, the leading judgment was delivered by Patanjali Sastri, C. J., Mahajan, J., merely expressing his concurrence stating that the principles enunciated by the learned Chief Justice were the same as those which he had formulated in the Sholapur case. It is because of this context that the manner in which this point was dealt with by Patanjali Sastri, C. J., assumes more importance. It was urged before the Court that the meaning of the word "acquired" in the phrase 'taken possession of or acquired ' in article 31(2) as it then stood, connoted nothing more than and was intended to confer the identical guarantee as was contained in section 299(2) of the Government of India Act, 1935, which had used the expression 'acquired ', the words 'taken possession of ' being added merely to overcome the decisions which had held that requisitioning of property was not within the constitutional protection. It was therefore urged that the words 'acquired ' or 'taken possession of ' implied that the legal title in the property passed to the State and could not be taken to signify or include forms of deprivation of private property which did not involve the element of the passing of title to the State. Repelling this argument the learned Chief Justice said: "I see no sufficient reason to construe the words 'acquired or taken possession ' used in clause (2) of article 31 in a narrow technical sense. The Constitution marks a definite break with the old order and introduces new concepts in regard to many matters, particularly those relating to fundamental rights, and it cannot be assumed that the ordinary (1) ; 41 318 word acquisition ' was used in the Constitution in the same narrow sense in which it may have been used in pre Constitution legislation relating to acquisition of land. These enactments, it should be noted, related to land, whereas article 31(2) refers to moveable property as well, as to which no formal transfer or vesting of title is necessary. Nor is there any warrant for the assumption that 'taking possession of property ' was intended to mean the same thing as ' requisitioning property ' referred to in the entries of the Seventh Schedule I am of opinion that the word 'acquisition ' and its grammatical variations should, in the context of article 31 and the entries in the Lists referred to above, be understood in their ordinary sense, and the additional words 'taking possession of ' or requisitioning ' are used in article 31(2) and in the entries respectively, not in contradiction of the term 'acquisition ', so as to make it clear that the words taken together cover even those kinds of deprivation which do not involve the continued existence of the property after it is acquired The expression 'shall be taken possession of or acquired ' in clause (2) implies such an appropriation of the property or abridgement of the incidents of its ownership as would amount to a deprivation of the owner. " It would be seen from the extracted passages in the two judgments, that the reference to the meaning of "acquired" in section 299(2) of the Government of India Act, 1935 made by Mahajan, J., as he then was, in Dwarkadas Shrinivas (1) was but an incidental remark. by way of orbiter and was not and was not intended to be, a decision regarding the scope or content of that section. If support were needed for this position, reference may be made to the observations of Das, Acting C. J. in Bhikaji Narain Dhakras vs The State of Madhya Pradesh (2). The learned Chief Justice said: "Prior to the Constitution when there were no fundamental rights, section 299(2) of the Government of India Act, 1935, which corresponds to article 31 had (1) ; (2) ; 319 been construed by the Federal Court in Kunwar Lal Singh vs The Central Provinces and in the other cases referred to in Rajah of Bobbili vs The State of Madras and it was held by the Federal Court that the word ,;acquisition ' occurring in section 299 had the limited meaning of actual transference of ownership and not the wide meaning of deprivation of any kind that has been given by this Court in Subodh Gopal Bose 's case ; to that word acquisition appearing in article 31(2) in the light of the other provisions of the Constitution." During the years when the Government of India Act, 1935, was in operation the Privy Council had no occasion to pronounce upon the meaning of section 299(2), but we might, however, usefully refer to the recent decision of the House of Lords in Belfast Corporation vs O. D. Cars Ltd. (1) where the I louse had to consider the import of the expression 'take any property ' occurring in a similar context in the Government of Ireland Act, 1920 (X & XI George V, Ch. 67), section 5(1) where the relevant words were: "In the exercise of their power to make laws neither. . the Parliament of Northern Ireland shall make a law so as to either directly or indirectly. . . take any property without compensation. " The facts in the case before the House of Lords were that the respondent who carried on business as garage proprietors and general motor engineers made an application to the appellant for the grant of permission to erect certain factories and shops on its land. This was refused on the ground that the height and character of the proposed buildings would not be in accordance with the requirements of the zone in which the site was situate. The respondent thereupon claimed compensation for injurious affection on the ground that its property had been "taken". The Court of Appeal of Northern Ireland upheld the respondent 's claim and the appellant Corporation brought the matter in appeal to the House of Lords. The (1) 320 argument pressed before the House, and which found favour with the Court below in Ireland, was based on the extended meaning of the word 'acquired ' attributed to it in the decisions of the Supreme Court of the United States which have been referred to and adopted this Court in Dwarkadas Shrinivas etc. (1) and in Subodh Gopal Bose 's cases (2). Viscount Simonds, delivering the leading judgment, observed: "I come then to the substantial questions: what is the meaning of the word 'take '? what is the meaning of the word 'Property '? what is the scope of the phrase 'take any property without compensation '? . . I hope that I do not over simplify the problem, if I ask whether anyone using the English language in its ordinary signification would say of a local authority which imposed some restriction upon the user of property by its owner that authority had 'taken ' that owner 's 'property '. He would not make any fine distinction between 'take ', 'take over ' or 'take away '. He would agree that `property ' is a word of very wide import, including intangible and tangible property. But he would surely deny that any one of those rights which in the aggregate constituted ownership of property could itself and by itself aptly be called 'property ' and to come to the instant case, he would deny that the right to use property in a particular way was itself property, and that the restriction or denial of that right by a local authority was a 'taking ', 'taking away ' or 'taking over ' of 'property Fully recognizing the distinction that may exist between measures that are regulatory and measures that are confiscatory and that a measure which is ex facie regulatory may in substance be confiscatory. ." Lord Radcliffe followed on the same lines and referred in this context to Slattery vs Naylor (3), where the validity of a municipal bye law which prevented an owner from using the property which he had purchased ground for the only purpose for which it could (1) ; (2) ; (3) 321 be used was upheld by the Judicial Committee as not amounting to depriving an owner of his property without compensation. We consider the principles laid down in the Belfast case (supra) apt as an aid to the construction of the content of the expression "acquired" in section 299(2) of the Government of India Act, 1935. The contention urged by learned Counsel for the appellant that the deprivation of the land holder of the right of management and control over the forest without his legal title thereto or beneficial enjoyment thereof being affected amounts to acquisition of land within section 299(2) of the Government of India Act, 1935 must be reject ed. The extract we have made earlier from the judgment of Viscount Simonds affords a sufficient answer to a submission that the right of the landholder to possession was itself a right of property and as this had been taken over it constituted an acquisition within the constitutional provision. Property, as a legal concept, is the sum of a bundle of rights and in the case of tangible property would include the right of possession, the right to enjoy, the right to destroy, the right to retain, the right to alienate and so on. All these, of course, would be subject to the relevant law procedural or substantive bearing upon each of these incidents, but the strands that make up the total are not individually to be identified as those constituting "property". So understood, there is no scope for the contention that the imposition, so to speak, of a compulsory Governmental agency for the purpose of managing the forest with liability imposed to account for the income as laid down by the statute is an "acquisition" of the property itself within section 299(2) of the Government of India Act, 1935. A very minor point was urged by the learned Counsel based upon the language of sub section (5) of section 299 which reads: "299 (5). In this section 'land ' includes immovable property of every kind and any rights in or over such property, and 'undertaking ' includes part of an undertaking." 322 Learned Counsel suggested that the right to possession, management and control over the estate was "a right in or over such property" and that if it was so construed, the taking over of such a right would be tantamount to "acquisition of land" within section 299(2). There is no substance in this argument, because the rights referred to in section 299(5) are 'derivative rights, like interests carved by an owner a lessee, mortgagee etc. and not an incident of a property right regarding which we have already expressed ourselves. We therefore hold that the impugned enactments were validly enacted and are not obnoxious to the provisions of the Government of India Act, 1935. There remains for consideration the third point urged that even if the Bihar Private Forests Acts, 1946, and 1948 were valid when enacted, the relevant provisions cannot be enforced against the appellant on the ground that the enforcement would violate the fundamental rights granted to the appellant by articles 19 and 31 of the Constitution. The argument was this: The lease in favour of the appellant was for terms of 8 or 9 years and would have continued, if nothing else had happened, till certain dates in 1954 and 1955. He has, however, been deprived of the benefit of the lease by the operation of the impugned legislation and the appellant 's rights which he could have otherwise enjoyed beyond January 26, 1950 have been denied to him, and this is tantamount to the impugned enactments operating beyond January 26, 1950. In support of this submission learned Counsel invited our attention to a passage in the judgment of this Court in Shanti Sarup vs Union of India(1). That case was concerned primarily with the constitutionality of an order dated October 21, 1952 passed by the Central Government under section 3(4) of the Essential Supplies (Temporary Powers) Act, 1946, by which the petitioner firm was dispossessed of a textile mill which they owned and managed. There had been an earlier order of the State Government dated July 21, 1949, also which was similarly impugned. B. K. Mukherjea, J., as he then was, who spoke for the (1) A.I.R. [1955] S.C. 624, 628. 323 Court, after pointing out that the order of the Central Government was not supportable under the terms of the enactment under which it was made and therefore had deprived the petitioner of his property under article 31 of the Constitution proceeded to add: "But even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and become void on and from that date under article 13(1) of the Constitution. " We are unable to construe these observations as affording any assistance to the appellant. The lease or licence which the appellant had obtained by contract from the landholder was put an end to, once and for all by virtue of the provisions contained in section 22 of the impugned enactment which made provision for compensation for the extinguishment of those rights. That took place long before the Constitution, in 1946. We have held that the legislation under which the appellant 's rights were extinguished, subject to his claim for compensation, was a valid law. It would therefore follow that the appellant could have no rights which could survive the Constitution so as to enable him to invoke the protection of Part III thereof. On this point also we must hold against the appellant. The result is the appeal fails and is dismissed with costs. Appeal dismissed.

In 1946 the appellant was granted a right to cut and remove bamboos and certain other timber to be found in a specific area of the forest Village of Jun by certain persons known as Manjhis who held under a mokarari lease granted by the Raja of Ranka and whose names had been entered in the revenue records. Meanwhile, the Bihar Private Forests Act, 1046, was enacted and it came into force on February 25, 1946. This Act was repealed and reenacted by Bihar Act 9 Of 1948. On October 14, 1946, the Governor of Bihar issued a notification under sections 14 and 21 of the Bihar Private Forests Act, 1946, declaring the forest of Jun as a protected forest. Though in the Schedule to the said notification, against the column headed "name of the proprietor" the name of Raja of Ranka was entered, a copy of the notification was however served on the Manjhis. Immediately on the issue of the notification the officials of the Government of Bihar prevented the appellant from working the forest any further. The appellant challenged the validity of the proceedings under the Act by filing a suit. The trial court held that the Act was valid but decreed the suit on the ground that the notification issued under section 14 was invalid, primarily for the reason that the name of the Manjhis as landlord had not been mentioned in it. The High Court on appeal reversed the decree and dismissed the suit, holding that the omission of the name of the Manjhis in the notification did not render the same invalid and that even otherwise the proceedings under Ch. III of the Act had been validated by section 2 of Bihar Act 12 Of 1949. Held, that the Bihar Private Forests Acts of 1946 and 1948 were validly enacted and were within the Legislative compe tence of the Province under the Government of India Act, 1935, and were not otherwise obnoxious to its provisions. Bihar Act 3 Of 1946 was an Act supplementary to, or rather a complement of the Indian Forests Act of 1927 and was clearly 293 covered by the Entry 'Forests ' in item 22 of Provincial Legislative List under which the Province could enact legislation not merely generally in relation to "Forests" but also to enable the Government to assume management and control of forests belonging to private proprietors. Such a legislation involved no violation of the guarantee against "acquisition by the State without compensation" contained in section 299(2) of the Government of India Act, 1935. Property, as a legal concept, was the sum of a bundle of rights and the imposition of a compulsory Governmental agency for the purpose of managing the forest with a liability imposed to account to the proprietor for the income derived as laid down by the statute was not an "acquisition" of the property itself within section 299(2) of the Government of India Act, 1935. Nor does section 299(5) affect the matter. The rights referred to in it are derivative rights, like interests carved by an owner a lessee, mortgagee etc. and not an incident of a property right. Held, further, that the correct specification of the name of the landlord was not a legal pre requisite of a valid notification under section 14 Of the Bihar Act 3 Of 1946 but the emphasis was on specification of the land and not so much on the owner or the person interested in it. The proceedings taken under Ch. III of the Act including the notification issued under section 14 Of the Act were valid and in accordance with the law and the validity of the service of notices required by section 14 or other provisions of the Act could not be challenged in view of the provisions of section 2 Of the Bihar Private Forests (Validating) Act, 1949. Held, also, that the legislation under which the appellant 's rights were extinguished, subject to his claim for compensation, was a valid law which took effect in 1946, long before the Constitution came into force and the appellant had therefore no rights which could survive the Constitution so as to enable him to invoke the protection of Part III thereof. M.D. Sir Kameshway Singh vs State of Bihar, Pat. 790 and Dwarkadas Shrinivas of Bombay vs Sholapur Spinning & Weaving Co., Ltd. ; , distinguished. Khemi Mahatani vs Charan Napit, A.I.R. 1953 Pat. 365, K.B.N. Singh vs State, Pat. 69, Administrator, Lahore Municipality vs Daulat Ram Kapur, , State of West Bengal vs Subodh Gopal Bose, ; , Bhikaji Narain Dhakras vs State of Madhya Pradesh, ; , Slattery vs Naylor, and Shanti Sarup vs Union of India, A.I.R. , referred to. Belfast Corporation vs O. D. Cars Ltd., , applied.

The appellant State issued a notification under section 4 of the West Bengal Estates Acquisition Act, 1953 covering the land comprised in the tea garden of the respondent company. The Revenue Officer issued notices to the respondent company initiating proceedings for assessment of rent. The Company objected stating that it was not an intermediary within the meaning of the Act and since its tea estate comprised of free hold land the Revenue Officer had no jurisdiction to assess the rent under Section 42(2) of the Act. The Revenue Officer rejected the contention and fixed the rent at Rs.2,375.94 per year. On revision preferred by the State, the Revenue Officer determined the rent at Rs.8,765.24 per year. The Company preferred appeals before the Tribunal. The appeals were dismissed in default and the restoration applications were also rejected. Thereafter, the Company preferred applications before the High Court under Section 115 CPC read with Article 227 of the Constitution for restoration of the two appeals, and obtained stay of the operation of the Revenue Officer 's order. During the pendency of the cases, the Additional Deputy Commissioner informed the respondent that inspite of the repeated reminders the company had not executed the long term lease for 30 years on prepayment of the requisite number of instalments or rent and cess. The respondent company replied pointing out that the High Court had granted the stay order and therefore the matter stood stayed till the disposal of the said cases. Thereafter, the Collector served upon the Company, a notice under section 106 of the Transfer of Property Act, 880 1882 determining the tenancy of the company In respect of the tea garden on the expiry of the specified date. The company was required to hand over the vacant and peaceful possession of the tea garden. In reply to the said notice, the company stated that in view of the stay order granted by the High Court no further proceedings be taken. Thereafter the Collector took over the possession of the tea garden. The applications before the High Court were still pending. However, aggrieved by the order of the Collector taking over its tea garden, the Respondent preferred a Writ Petition before the High Court Allowing the writ petition, the High Court directed the appellant State Government and other authorities to deliver the possession of the tea garden to the Company within a month. Aggrieved by the High Court 's order, the State as also the West Bengal Tea Development Corporation to whom the possession of the tea garden is transferred by the State, preferred appeals, before this Court. Disposing of the appeals, this Court, HELD:1. The Revenue Officer had initially determined the rent at the rate of Rs.2,371.94 per year, but the same was not accepted by the Government and on a representation made by the State Government, the Revenue Officer had refixed the rent at Rs.8,769.24 per year by order dated 22.8.1968. The Company had challenged the rent refixed at Rs. 8.769.24 and the High Court had stayed the order of the Revenue Officer fixing the rent at the rate of Rs.8,769.24. In view of these circumstances, it was necessary on the part of the Collector to have passed an order of summary settlement as contemplated under Form I Schedule F of the West Bengal Estates Acquisition Rules, 1954. The High Court was, therefore, right in holding that the Collector had no jurisdiction to terminate the tenancy on the ground of non payment of rent for not executing a lease deed inasmuch as the Collector had not mentioned in the notice terminating the tenancy under Section 106 of the Transfer of Property Act, that he was prepared to accept the rent at the rate of Rs. 2,375.94 per year as determined initially by the Revenue Officer. [886 F H; 887 A,B] 2.In order to do complete justice between the parties, it is proper that the respondent Company should be given the prosession of the tea garden provided the Company pays the entire arrears of rent from 27.7.1965to 21.4.1981, the date when the Company was dispossessed, 881 calculated at the rate of Rs. 8,769.24 per year after adjusting any amount already paid, within three months. There would be no necessity for the Collector to make any order of summary settlement and a long term lease should be executed as contemplated under sub section (3) of Section 6 of the West Bengal Estates Acquisition Act, 1953. As soon as the arrears of rent are paid by the Company and a lease deed is executed, the Company should be handed over the possession of the tea garden. In case any increase in the amount of rent is permissible under the law due to lapse of time, the State Government would be free to take the same into consideration while granting the long term lease. [887 B D]

The appellant assessee filed a memorandum of appeal to the Assistant Commissioner, Sales Tax, stating therein that the amount of admitted tax had been paid and forfeited the statement by an affidavit. Before the hearing, he produced a certificate from the Sales Tax Officer that the tax had been paid. The Assistant Commissioner relying on the Allahabad High Court 's decision in Swastika Tannery, Jaimau vs Commissioner of Sales tax, U.P. rejected as defective the memorandum of appeal, holding that it was not accompanied by the challan showing the deposit of admitted tax under section 9 of the Uttar Pradesh Sales Tax Act, 1948 and r. 66 of the U.P. Sales tax Rules. Against this order the assessee directly filed special leave to appeal to this Court without exhausting the remedies of revision and reference provided in the Act. This Court granted Special Leave and; HELD:The appeal must be allowed. (i) By the word "entertain" in the proviso to section 9 is meant the first occasion on which the Court take up the matter for consideration. It may be at the admission stage or if by the rules of that Tribunal, the appeals are automatically admitted, it will be the time of hearing of the appeal. But on the first occasion when the court takes up the matter for consideration, satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal. Rule 66(2) lays down one uncontestable mode of proof which the Court will always accept but it does not exclude the operation of the proviso when equally satisfactory proof is made available to the officer hearing the appeal and it is proved to his satisfaction that the payment of the tax has been duly made and in time. [512E F; 513E G] In the present case, when the Assistant Commissioner took tip the appeal for consideration, satisfactory proof was available in the shape of a certificate. Swastika Tannery of Jaimau vs Commissioner of Sales tax, U.P. Lucknow, (1963) 14 S.T.C. 518, disapproved. Kundan Lal vs Jagannath Sharma, A.I.R. 1962 All. 547; Dhoom Chand Jain vs Chaman Lal Gupta and Anr. A.I.R. 1962 All. 42: Haji Rahim Bux & Sons & Ors. vs Firm Samiullah & Sons, A.I.R. 1963 All. 320, approved. (ii) Though this Court would not ordinarily grant special leave to appeal against an order when other remedies were available and had not been exhausted, there is no inflexible rule that this Court will never entertain such an appeal. It would have been futile in this case for the assessee to have gone to the court of revision which was bound by the decision in Swastika Tannery of Jaimau vs Commissioner of Sales tax, U.P. and it would have been equally 506 futile to have gone to the High Court on a reference. The matter was more easily disposed of by giving special leave in this Court and this was one of those extra ordinary cases in which the ends of justice would be better served, by avoiding a circuity of action and by dealing with this matter in this Court directly. [513H 514C]

These appeals were preferred by tenants against the judgment of the High Court in civil revisions. Respondent Mahabir Prasad had executed a registered deed dated 8th December, 1966 with regard to premises in question, giving the benefits arising out of the said properties to his grandsons and their mother Smt. Sulochana Devi. He informed the tenants to make payment of rent to Smt. Sulochana Devi in terms of the said deed. Later, Mahabir Prasad executed a registered deed of cancellation dated 3rd November, 1970, cancelling the aforesaid deed dated 8th December, 1966 and debarring the grandsons and their mother from the right to realise rent and informed the tenants about the said deed of cancellation. Subsequently, Mahabir Prasad instituted suits in the Court of the Judge, Small Causes against the appellant tenants for recovery of arrears of rent and their eviction on the ground that in spite of their being informed of the deed of cancellation, they had not paid rent to him. The appellants contended that the deed dated 8th December, 1966, could not be unilaterally cancelled by Mahabir Prasad, and the rent claimed by him had already been paid by them to Smt. Sulochana Devi. The title of Mahabir Prasad to realise rent was disputed by the appellants who had contended that the suit involving a question of title was not cognizable by a Court of Small Causes. The Judge, Small Causes, decreed the suits. The appellants filed revisions before the District Judge who dismissed the same. Further revisions filed by the appellants in the High Court were also dismissed. The appellants moved this Court for relief by special leave against the Judgments of the High Court. PG NO 238 PG NO 239 Allowing the appeals, the Court, HELD: The provisions of section 23 of the Provincial Small Cause Courts Act (the Act) were clearly attracted in these cases and the plaints in the cases ought to have been returned for presentation to a Court having jurisdiction to determine the title. It is true that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant, and that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes, in this behalf could not be res judicata in a suit based on title, but it cannot be gainsaid that in enacting section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties. On facts, these are cases in which~ in order to do ' complete justice between the parties the plaints ought to have been returned for presentation to a court having jurisdiction to determine the title so that none of the parties was prejudiced. [242E, H, 243A C, F] Judgments and decrees of the courts below were set aside and the Judge, Small Causes was directed to return the plaints of the cases for presentation to the appropriate Court as contemplated by section 23 of the Act. [243F G]

The appellant Corporation was assessed to sales tax under section 13(5) of the Bihar Sales Tax Act, 1947, on the price of machinery and equipment, amounting approximately to Rs. 42,63,305, supplied to two contractor firms on the basis of an agreement which it entered into with them for the construction of a dam. The agreement provided, inter alia, that the price of the machinery and equipment supplied was to be paid by the contractors and until that was done they were to remain the property of the Corporation. It was further agreed that the Corporation would take them over after the completion of the work at their residual value, to be calculated in the manner set out in the agreement, provided that they were properly looked after during the period of operation; and if the contractors so chose earlier, if they were declared surplus and certified as such by the consulting Engineer. The price was to be paid in 18 equal instalments, two thirds of which was realisable in any case, and thereafter the Corporation was to consider the date or dates of taking them over after assessment of the depreciation in order to arrive at the residual value. The Corporation was not bound to take over if the residual life of the equipment fell below one third of the standard life as fixed by the parties. 523 The contractors were to replenish the stock of spare parts supplied to them at their own cost. The appellant 's case was that the transaction represented by the agreement was not a sale within the meaning of the Act. The Sales Tax authorities held against it and the only question that was ultimately referred to the High Court by the Board of Revenue under section 25 of the Act was whether the property in the equipment and machinery passed to the contractors and the transaction amounted to a sale. The High Court answered the question in the affirmative, holding that the transaction was a sale within the meaning of section 2(g) of the Act. The High Court having refused the necessary certificate, the appellant appealed by special leave granted by this court. Held, that the appeal must be confined to the question debated in the High Court. It is well settled that, while functioning in its advisory capacity under a taxing statute, the High Court cannot go beyond the question referred to it or on a reference called by it. That the appeal was by special leave could make no difference and the scope of the controversy could not be extended beyond what could be legally raised before the High Court. The two fold test to determine whether a particular agree ment is a contract of mere hiring or of purchase on deferred payments is (1) whether the hirer is under an obligation to purchase the goods and (2) whether he has the right to return the goods at any time during the subsistence of the contract. What has to be considered in each case is the substance of the agreement and not the words describing its category. Helby vs Matthews and others, , referred to. So judged, there could be no doubt that on the terms of the agreement between the parties the transaction in the instant case was clearly a sale on deferred payments with an option to repurchase and not a mere contract of hiring.

The respondent, a company incorporated in the former State of Bhopal, presented a petition in August 1960 under article 226 of the Constitution in the High Court of Madhya Pradesh for a writ restraining the State of Madhya Pradesh from enforcing the Bhopal State Agricultural Income tax Act, 1953, claiming that the Act contravened the respondent 's right under article 14 of the Constitution. By the the territory of the State of Bhopal was 847 incorporated from November 1, 1956 into the newly formed State of Madhya Pradesh. The by section 119 continued the operation of the laws in force in the territories in which they were previously in force until the competent legislature or authority amended, altered or modified these laws. Shortly after the reorganisation. the Madhya Pradesh Adaptation of Laws Order, 1956 was issued so as to make certain laws applicable uniformly to the entire State and later the Legislature by the Madhya Pradesh Extension of Laws Act, 1958 made other alterations in the laws applicable to the State. But Bhopal Act 11 of 1953 remained unamended or unaltered: nor was its operation extended to the other areas or regions in the State with the result that Agricultural Income tax was levied within the territory of the former State of Bhopal and not in the rest of the territory of the State of Madhya Pradesh. The High Court held that the provisions of Bhopal Act 11 of 1953 contravened article 14 of the Constitution and observed that though the State had removed diversity in some of the laws of the component regions, no attempt was made to remove discrimination between the territory of the former Bhopal State and the rest of the territories of the State of Madhya Pradesh with respect to this law. Held: (i) Where application of unequal laws is reasonably justified for historical reasons, a geographical classification founded on those historical reasons would be upheld. The legislature has always the power to make special laws to attain particular objects and for that purpose has authority to select or classify persons, objects or transactions upon which the law is intended to operate. Differential treatment becomes unlawful only when it is arbitrary or not supported by a rational relation with the object of the statute. Bhaiyalal Shukla vs State of Madhya Pradesh, [1962] Supp. 2 S.C.R. 257, The State of Madhya Pradesh vs The Gwalior Sugar Co., , Maharaj Kumar Prithivi Rai vs State of Rajasthan, C.A. Nos. 327 328, dated 2 11 1960 and Anand Prasad Lakshminivas Ganeriwal vs State of Andhra Pradesh, A.I.R. 1953 S.C. 853. relied on. State of Rajasthan vs Rao Manohar Singhji, [1954] S.C.R. 996, explained. (ii) It would be impossible to lay down any definite time limit within which the State had to make necessary adjustments so as to effectuate the equality clause of the Constitution. It cannot be said that because a certain number of years have elapsed or that the State has made other laws uniform, the State has acted improperly in con tinuing an impost which operates upon a class of citizens more harshly than upon others. (iii) To make out a case of denial of the equal protection of laws under article 14, a plea of differential treatment is by itself not sufficient. An applicant pleading such denial must make out that not only he 848 had been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is Unjustifiably made.

The appellant was convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life by the High Court for the offence of the murder of his wife. He was granted special leave to appeal by this Court. During the pendency of the hearing of this appeal the appellant died. After his death his sons and daughter applied to this Court for permission to continue to prosecute the appeal. It was pleaded by the legal representatives of the appellant that though that sentence of imprisonment could no longer be executed, it still affected the property of the deceased and the legal representatives were, therefore, interested in the appeal and should be permitted to continue it. The appellant, who held a high office in the Government of Andhra Pradesh had been suspended during the investigation of the charge against him and he was dismissed from service under certain service rules on his conviction. During this time the appellant had only been given a small allowance. On these facts it was pleaded that if the conviction was set aside, the estate of the deceased would be entitled to receive the full salary from the Government. Held (Per Sarkar, J.): (i) Neither section 431 nor the cases men tioned can be said to apply to the present case proprio vigore, for the present is not an appeal under the code of criminal procedure which is dealt with by section 431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitra 's case, while as for the English case, it is only of persuasive value. Pranab Kumar Mitra vs The State of West Bengal, [1959] Supp. 1 S.C.R. 63 and Hodgson vs Lakeman, , distinguished. (ii).The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it. This principle applies in appeals, revisions, and in petitions under article 136 of the Constitution. A sentence of fine no doubt affects the property. In the present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become infructuous. In the present case the effect of the sentence imposed in this case being set aside would not directly entitle the legal representatives to the salary. They will have to obtain necessary orders from the Government for the purpose. 252 Held (Per Hidayatullah, J.): (i) This was an appeal against a sentence of imprisonment and an appeal of this character would normally abate on the death of the appellant because a criminal prosecution is concerned primarily with the punish ment of an offender and not with the trial of an abstract issue about the truth or falsity of a prosecution case. The same principle must apply to appeals after conviction, except in so far as a judgment already rendered touches assets which would come to the legal representative. In so far as personal punishment (other than a fine) is concerned that stands dissolved by the death of the offender and an appeal to get that punishment set aside becomes infructuous and abates. Pranab Kumar Mitra vs The State of West Bengal, [1959] Supp. 1 S.C.R. 63, Pritam Singh vs State, ; , distinguished. Hodgson vs Lakeman, [1943] L.R.K.B. 15, Baghis vs Rowes , referred to. (ii).The principle laid down in Pranab Kumar Mitra vs The State of. West Bengal and Another and in Pritam Singh vs The State has.no application to the present matter because there is no analogy between an appeal by special leave and a revision under the code. The present case is not a case where the legal representatives after the death of the offender have to meet the liability of a fine or are required to protect the assets which they claim should reach them. In the present case no claim of the petitioners is jeopardized directly, by the judgment. Their claim is dependent upon the administrative action of Government which may not proceed upon the result of criminal prosecution. This appeal was only concerned with the correctness or otherwise of the conviction and not with any monetary claims depending upon the result of the appeal. In such a situation the ordinary rule that a criminal proceeding against a person comes to an end on his demise must apply also to special appeals in this court, such as this, even though the provisions of the Criminal Procedure Code may not be directly applicable. Held (Per Mudholkar, J.): (i) The decision of this court in Pranab Kumar Mitra vs The State of West Bengal has no, bear ing upon an appeal brought to this court by special leave. It is no doubt true that the power confer red by section 435 of the Code on the High Court and certain other courts and by Article 136 of the Constitution on this Court is discretionary. Under section 439 of the Code the High Court can exercise any of the powers conferred on a court of appeal by sections 423, 426, 427 and 428 or on a court by section 338 and has also the power to enhance the sentence. Under Section 435 of the Code, the High Court can suo motu call for the record of any inferior court but this power cannot be exercised by this court under article 136 of the Constitution. Therefore there is a fundamental difference between the power of the High Court in revision and the power of this Court in article 136 of the Constitution. Pranab Kumar Mitra vs The State of West Bengal, [1959] Supp. 1 S.C.R. 63, distinguished. (ii).In a criminal matter the issue is personal between the accused person and the State and the right of appeal is also personal to the appellant. There is admittedly no express provision permitting the substitution of legal representatives of a decreased appellant in a criminal appeal brought to this Court by 253 special leave. The policy of the law discernible from section 431 of the Code has to be borne in mind. The policy under section 431 of the Code is that every criminal appeal under chapter XXXI will abate except an appeal from a sentence of fine. There is no provision which prescribes the continuation of the appeal on the death of the appellant in cases where the sentence is of imprisonment. The interest of the legal representatives in the present case is not a direct interest in the sense that it cannot arise out of the decision of this court even if it is in favour of the appellant. The only interest which the applicants have is a contingent one and is not one which could flow directly out of the ultimate decision of this Court. Hodgson vs Lakeman, (1943) L.R.K.B. 15, Regina vs Rowe, , Hesketh vs Atherton, Leach vs Wanstead School Board, Siberry vs Connolly, Constantine vs Illingworth, Jones vs Gallowfield, Rivers vs Glasse, (all cited in Short and Mellor, Practice on the Crown Side of the King 's Bench Division 2nd Ed. at p. 425), United States vs Mook, , The State of Kerala vs Narayani Amma Kamala Devi, [1962] Supp. 3 S.C.R. 943 and Imperatrix vs Dongali Andaji, , referred to and discussed. (iii). .The Legislature has by limiting in section 431 of the Code the survival of appeals to appeals against sentences of fine has chosen to recognise only one kind of interest and no other. This Court in exercise of its inherent powers or discretionary powers would not be acting according to correct legal principles in recognising a kind of interest which the legislature has not chosen to recognise. In the circumstances the applicants ought not to be granted special leave to prosecute the appeal.

The respondent, who owned agricultural properties in the different districts of Uttar Pradesh, was assessed to agri cultural income tax by the Additional Collector of Banaras. On challenge by way of a petition under article 226 of the Constitution, assessment was quashed by the Allahabad High Court on the ground that the assessing authority had no ,jurisdiction to assess. Under section 6 of the U.P. Act No. XIV of 1956 the assessments by the Additional Collector were validated and a party to the proceedings under Agricultural Income tax Act was given the right to move the Court or authority within the prescribed period to review the proceedings where in the assessments had been set aside on the ground that the assessing authority had no jurisdiction to make the assessment. By section 11 the authority or court so moved was bound to review the order. The State of Uttar Pradesh applied to the High Court for review of its earlier order quashing the assessment. The single judge of the High Court held that section II of the Act did not apply to writ pro ceedings under article 226 of the Constitution. On appeal the Division Bench held that the order for the single judge did not amount to a 'judgment ' under Ch. VIII r.5 cl.10 of the Letter Patent and the Rules of Allahabad High Court and that section 11 of the Act did not apply to proceedings. by way of a writ before the High Court. On appeal by special leave by the State it was contended that the Division Bench was wrong and by an additional statement of case it was sought to be urged that the application for review should be treated as one under order 47 of the Code of Civil Procedure, 2 Held (per Sinha, C. J, Subba Rao, Ayyangar and Aiyar, jj.), that under cl. IO of the Letters Patent of the Allahabad High Court and the Rules of the Court the expression 'judgment ' would even on the narrow view of the expression include the order in the present case whereby the statutory right given to the party was finally negatived and that the Division Bench was in error in holding that it was not a 'judgment '. Held, further, that the proceeding under article 226 of the constitution were neither 'proceedings ' under the Act nor proceedings on the basis of the Act. The proceedings under article 226 of the Constitution were independent and original proceeding and not a continuation of the assessment proceedings. Venkataratnam vs Secretary of State for India, (1930) I.L.R.53 Mad. 979, Ryots of Garabandha vs The Zamindar of Parlakimedi I.L.R. , Ramayya vs State of Madras, A.I.R. 1952 Mad. 300, Moulvi Hamid Hassan Nomani vs Banwarilal Coy. (1947) II M.L.J. 32, Budge Budge Municipality vs Mangru (1952) 57 C.W.N.25 and Satyanarayanamurthi vs 1.T. Appellate Tribunal, A.I.R.1957 Andhra 123, referred to. The Act had to be interpreted consistently with the Constitution and there was no power in the State Legislature to compel the High Court to act in a particular way in exercise of its jurisdiction under article 226 of the Constitu tion. Section, II could only apply to cases 'Where any court or authority other than the High Court in exercise of its jurisdiction under article 226 of the Constitution, had decided the matter. Held, further, that construing shall ' in section II of the Act as `may ' would defeat the very provisions of the Act. Held, also, that the contention that the application under s.11 of the Act may be treated as one order 47 of the Code of Civil Procedure, was highly belated and further there were many possible objections to such a course and it cannot be acceded to.

Appeal No. 671 of 1957. Appeal from the judgment and order dated February 5, 1954, of the Madras High Court in Writ Appeal No. 28 of 1953. Sachin Chaudhuri, N. A. Palkhiwala, J. B. Dadachanji, section N. Andley and P. L. Vohra, for the appellant. B.K. Gopalakrishnamachar and T. M. Sen, for the respondent No. 1. A. V. Viswanatha Sastri, R. Ganapathy Iyer and G. Gopalakrishnan, for respondent No. 2. 1961. April 21. The Judgment of Sinha, C. J., Ayyangar and Mudholkar, JJ. was delivered by Ayyangar, J. The Judgment of section K. Das and Sarkar, JJ., was delivered by Sarkar, J. AYYANGAR, J. This is an appeal against a judgment of a Division Bench of the High Court of Madras on a certificate under articles 132 and 133(1) of the Constitution, and raises for consideration the constitutionality of section 13 of the Madras Buildings (Lease & Rent Control) Act, 1949; and the legality of an order of the State Government passed thereunder. The facts giving rise to the appeal are briefly as follows: The dispute relates to promises No. 1, Blackers Road, Mount Road, Madras a property which was originally owned by one Sir Haji Ismail Sait. In or about the year 1914 one Venkayya obtained a lease of this property from Sir Haji Ismail Sait and constructed a cinema theatre thereon 172 which he ran under the name of "the Gaiety Theatre". Venkayya was adjudicated an insolvent and the Official Assignee of Madras in whom his estate, including the leasehold interest in the suit site vested, obtained a further lease of the property from the representatives of Sir Haji Ismail Sait who had by then died, for a period of 9 years from March 1926. Thereafter the Official Assignee sold the super structure of the theatre to one Mrs. Madan to whom he also assigned the unexpired portion of the lease. Mrs. Madan, subsequently, obtained a further lease of the property from the representatives of Sir Haji Ismail Sait 's estate for a further period of 7 years from June 1935. Mrs. Madan was thus the owner of the superstructure and the lessee of the site, with a term which would expire in or about May 1942. While one T. section PL. P. Chidambaram Chetty who is the second respondent before us obtained a conveyance of all the rights which Mrs. Madan possessed in the super structure and in the lease for a sum of Rs. 36,000 under a registered deed dated January 4, 1937, and he ran the cinema house from then. There was litigation between the heirs of Sir Haji Ismail Sait, pending on the original side of High Court of Madras, and by interim orders passed in two suits (C. section Nos. 280 and 286 of 1939), the High Court appointed two advocates as Joint Receivers to administer ' the property in suit. In the early months of 1940, one J. H. Irani, the father of P. J. Irani the appellant before us had negotiated with the Recei vers for a lease of a property adjacent to No. 1 Blackers Road with a view to construct a cinema theatre whereon. That lease was for a period of 21 years and would have expired in or about April May 1961. Irani offered to the Receivers to take a lease also of the property now in dispute and on which the Gaiety theatre stood, also till April May 1961. The Receivers then moved the Court for directions regarding the grant of the lease. The second respondent, whose term of lease would have expired in 1942, was offered by the Court the option of taking a lease for 21 years from the 1st of May 1940 but he expressed his 173 unwillingness to take a lease for such a long term. He was, however, willing to have the lease continued for a period of 7 years from the 1st of May 1940, i.e., for 5 years beyond the term of his then existing lease. The Court thereupon passed an order on May 2, 1940 reading: "The lessee of the Gaiety Theatre (Chidambaram Chetty) will be given a lease of seven years from this date. They will not be given any further option. On the expiry of that period, i.e., from 2nd May 1947 the same may be included in the lease of J. H. Irani at the same rate of rent at which it is being leased to the lessee of the Gaiety Theatres. " In accordance with this order the Receivers of the estate of the late Sir Haji Ismail Sait executed two lease deeds (1) in favour of the second respondent for a period of 7 years from May 1, 1940 and (2) a reversionary lease in favour of J. H. Irani for a period of 13 years 11 1/2 months commencing from May 1, 1947, i.e., on the expiry of the lease in favour of the second respondent, this term being fixed so as to be coterminous with the lease of the neighbouring property which Irani was being granted. The term of the lease in favour of the second respondent would, therefore, have ended on May 1, 1947 but before that date Madras Buildings (Lease & Rent Control) Act 1946 (Madras XV of 1946) came into force under which tenants in possession who continued in occupation of residential or non residential buildings could not be evicted therefrom except by proceedings taken under the Act before designated officers and on stated grounds which did not include the mere expiry of the term. It is now common ground that this enactment covered the second respondent 's possession of the premises now in dispute and that notwithstanding the termination of the term he was statutorily entitled to continue in possession even after the expiry of the lease on May 1, 1947. This is the result of decisions rendered in certain proceedings between the parties to which we shall immediately refer. Irani, the, reversionary lessee called upon the second respondent to surrender possession in 174 accordance with the conditions of his lease, but the latter declined to do so relying upon the Act and the protection which it conferred upon him. Thereupon the 'present appellant P. J. Irani as representing the estate of his father who had by then died, filed a suit on the original side of the Madras High Court (C. section 479 of 1947) for evicting the second respondent from the property. It may be mentioned that the suit was based upon the allegation that what had been leased to Venkayya originally was a vacant site without any buildings and that consequently Madras Act XV of 1946 which did not apply to leases of mere vacant sites did not apply to protect the second respondent 's possession. The suit was, however, dismissed by judgment rendered on April 22, 1948, on the finding that a building as well as the site had been included in the lease, which brought it within the scope and protection of the Act. The appellant filed an appeal against this judgment (Original Side Appeal 37 of 1948) which was also dismissed on July 29,1951, on the same finding. Even while the appeal was still pending before the High Court, Irani applied to the Government of Madras for exemption of the premises from the operation of the Act. By the date of this application Madras Act XV of 1946 had been repealed and its provisions substantially re enacted in the Madras Buildings (Lease & Rent Control) Act, 1949, but as the provisions of the two enactments on the points which arise for decision in this appeal are identical it is sufficient if reference is made to those of the later Act. A provision for exemption being granted from the operation of the Act by the State Govern ment was contained in section 13 of the Act (Madras Buildings) Lease & Rent Control Act., 1949), to which we shall hereafter refer as the Act, in the following terms: "Notwithstanding anything contained in this Act the State Government may by a notification in the Fort St. George Gazette exempt any building or class of buildings from all or any of the provisions of this Act. " The Government, however, by their order dated June. 175 4, 1951, rejected this application for exemption on the ground that the matter was then sub judice. After the dismissal of the appeal by the Division Bench the appellant Irani moved the Government afresh by a further petition filed in or about December, 1951, praying for the same relief. The Government, by their order dated June 4, 1952, granted the exemption sought and the relevant notification which appeared in the Fort St. George Gazette ran: "In exercise of the powers conferred by section 13 of the Madras Buildings (Lease & Rent Control) Act 1949 (Madras Act XXV of 1949) His Excellency the Governor of Madras hereby exempts the building No. 1 Blackers Road, Mount Road, Madras (Gaiety Theatre) from all the provisions of the said Act." And it was authenticated by the Chief Secretary to Government. The second respondent thereupon made a petition to the High Court under article 226 of the Constitution challenging the legality and propriety of this order of exemption on the principal ground that the provision contained in section 13 of the Act enabling the Government to exempt particular buildings from the operation of the Act, vested in them an unguided and arbitrary discretion which was unconstitutional as violative of the equal protection of the laws guaranteed by article 14 of the Constitution. In the affidavit in support of the petition, the second respondent further averred that in the order impugned "no justification has been shown for depriving the petitioner of the beneficial provisions of the Rent Control Act". Both the State of Madras whose order was impugned as well as the appellant Irani for whose benefit the order was passed were made respondents to this writ petition. The writ petition was dismissed by a learned Single Judge of the High Court by order dated March 12, 1953, on the ground that the constitutional validity of section 13 of the Act had already been upheld by a Division Bench of the Court in another case. The second respondent thereafter took the matter in appeal under cl. 15 of the Letters Patent. At the time this appeal was heard the Bench had before it, two other appeals in which also the question whether section 13 of the 176 Act violated article 14 of the Constitution had been raised. The three appeals were heard together and this common point was first decided by a judgment pronounced on October 23, 1953. The learned Judges held that section 13 of the Act did not offend article 14 of the Constitution but that individual orders granting the exemption might be examined to find out whether such orders were within the policy and purpose of the Act or whether they were discriminatory and therefore offended article 14. In this view the grounds upon which exemption was granted in each of the three cases before them were separately considered and in the appeal by the second respondent the learned Judges, after examining the reasons disclosed by the Government as to why they granted exemption in the particular case, held that those reasons were not germane to the purpose for which the,power of exemption had been vested in them and quashed the order of exemption. Irani feeling aggrieved by the decision of the High Court applied to and obtained a certificate under articles 132 and 133(1) of the Constitution and has filed the present appeal before us. The State of Madras has not appealed but as a respondent has filed a statement which was repeated by Counsel on their behalf, that they were not interested in disputing the correctness of the judgment of the High Court but left the matter to be decided between the rival contestants, viz., Irani and the second respondent. Mr. Sachin Chowdhary, learned Counsel for the appellant Irani, urged substantially two points before us: (1) that the impugned order of the Government exempting the buildings under section 13 of the Act was executive or administrative in its nature and not quasi judicial as wrongly held by the High Court, and was, therefore, not amenable to be quashed by the issue of a writ of certiorari, (2) assuming that the order was quasi judicial, still it could be quashed or set aside only if it were mala fide or proceeded upon grounds wholly extraneous for the purpose of the enactment and that in the instant case neither of these conditions was fulfilled and the High Court was 177 therefore not justified in setting it aside. He further submitted that the High Court had erroneously converted itself, as it were, into a Court of appeal, put itself in the place of the Government and decided the case on the basis of what the Court itself would have done if it were the exempting authority. Learned Counsel urged that this went beyond the supervisory jurisdiction of the High Court in the exercise of its powers under article 226 even when dealing with a quasi judicial order. Before dealing with these points it is necessary to mention that obviously these arguments proceed upon the basis that the power conferred by section 13 of the Act on the State Government to exempt "buildings or class of buildings from the operation of the Act is constitutionally valid. We are saying this because Mr. Viswanatha Sastri learned Counsel for the second respondent disputed before us the correctness of the decision of the High Court dated October 23, 1953, upholding the validity of section 13 of the Act. It is manifest therefore that the point urged by Mr. Viswanatha Sastri should first be decided before considering the points urged in support of the appeal. Learned Counsel for the appellant, however, raised an objection, to Counsel for the respondent being permitted to contest the validity of section 13 of the Act. He pointed out that the question of the validity of section 13 had been decided by a judgment rendered on October 23, 1953, and that as the respondent did not prefer an appeal to this Court from that judgment, he was precluded from agitating this question in the appeal now before us. We consider this objection as without substance. By its order dated October 23, 1953 writ appeal 28 of 1953 against the decision in which this appeal has been brought was not disposed of but was still kept pending before the High Court for further consideration and as observed by the learned Chief Justice in that judgment: "In this view we cannot strike down section 13 of the Act as inconsistent with the Constitution and void but we shall have to examine each case on its merits". 23 178 Writ Appeal 28 of 1953 was thereafter dealt with on its merits and it was this examination which resulted in its being allowed. In our opinion, therefore, the two judgments have to be read together and as really part of one proceeding, though for convenience and with a view to define the scope of the arguments the Court expressed its opinion on the Constitutional point at an earlier stage. We also consider that it is doubtful if an appeal would have lain from the judgment of the High Court dated October 23, 1953, and even assuming that it did in view of the matters which we have set out earlier, the respondent cannot be precluded from contesting the correctness of the conclusion of the High Court, by reason of his not having moved this Court under article 136 of the Constitution. We therefore consider that the respondent is entitled to support the judgment in his favour by attacking those portions of that judgment which are against him. The submission of Mr. Viswanatha Sastri was that section 13 of the Act conferred an unguided and arbitrary power on Government to discriminate between one building and another and choose at their will and pleasure particular buildings which would be subject to the provisions of the Act and others which would not be so subject, the tenants in the latter being deprived of the protection conferred on other tenants similarly situated. He further urged that whether or not a power to exempt a class of buildings was valid, because in such a case there might possibly be an element of classification based on rational grounds grounds germane to carry out the policy or purpose of the Act the same could not be predicated of the power to grant exemption for individual buildings because in the latter case it would be merely an arbitrary exercise of power discriminating between one building and another, or one tenant and another and which would, therefore, render the very conferment of the power invalid as in violation of the equal protection of the laws guaranteed by article 14. The arguments addressed to us were the same as bad been urged before the learned Judges of the High 179 Court and had been repelled by them. They pointed out that it was not correct to say that the enactment did not sufficiently disclose the policy and purpose of the Act which furnished adequate guidance for the basis of the exercise of the power of exemption. The preamble to the Act ran: "Whereas it is expedient to regulate the letting of residential and non residential buildings and to control the rents of such buildings and to prevent unreasonable eviction of tenants therefrom in the State". This meant that the legislation was enacted for achieving three purposes: (1) the regulation of letting, (2) the control of rents, and (3) the prevention of unreasonable eviction of tenants from residential and non residential buildings. The Act was the latest in the series of enactments and orders dating back to the period of the Second World War when due, inter alia, to large scale movement of populations to urban areas, there was an acute shortage of accommodation in the principal towns, as a result of which tenants ousted from buildings occupied by them on the termination of their tenancies could not find alternative accommodation and were thrown on the streets, and thus owners of house property could, if left unchecked, unfairly exploit those who sought accommodation. The enactment in terms protected the rights of tenants in occupation of buildings from being charged unreasonable rates of rent and from being unreasonably evicted therefrom. Tenants who required this protection included, of course, those whose duration of tenancy under the ordinary law had expired and who would, therefore, have been liable to be ejected from the buildings occupied by them. Accordingly, the definition of a "tenant" included those who continued in possession notwithstanding their term of tenancy had expired and even those against whom decrees for eviction had been passed by Civil Courts but under which eviction had not taken place. Though the enactment thus conferred these rights on tenants, it was possible that the statutory protection could either have caused great hardship to a 180 landlord or was the subject of abuse by the tenant himself. It was not possible for the statute itself to contemplate every such contingency and make specific provision therefor in the enactment. It was for this reason that a power of exemption in general terms was conferred on the State Government which, however, could be used not for the purpose of discriminating between tenant and tenant, but in order to further the policy and purpose of the Act which was, in the context of the present case, to prevent unreasonable eviction of tenants. The learned Judges of the High Court, therefore, held that while section 13 of the Act was constitutionally valid, any individual order of exemption passed by the Government could be the subject of judicial review by the Courts for finding out whether (a) it was discriminatory so as to offend article 14 of the Constitution, (b) the order was made on grounds which were germane or relevant to the policy and purpose of the Act, and (c) it was not otherwise malafide. We find ourselves in complete agreement with the approach and conclusion of the learned Judges of the High Court to the consideration of the question of the constitutional validity of section 13 of the Act. The meaning and scope of article 14 of the Constitution has been the subject of several decisions of this Court, a number of which have been considered by us in some detail in Jyoti Pershad vs Administrator of Union Territory (Writ Petition 67 etc. of 1959) in which we have pronounced judgment today. In view of this we find it unnecessary to traverse the same ground except to say that in the case before us enough guidance is afforded by the preamble and operative provisions of the Act, for the exercise of the discretionary power vested in Government so as to render the impugned section not open to attack as a denial of the equal protection of the laws. In our judgment, the provision now impugned belongs to the class numbered (v) in the analysis of the decision on article 14 by Das C. J. in Ram Krishna Dalmia vs Justice Tendolkar (1). (1) ; , 300. 181 "A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of discretion by the Government in the matter of such selection or classification. If the Government in making the selection or classification does not proceed on or follow such policy or principle. . . . the executive action but not the statute should be condemned as unconstitutional." Possibly even a more apt precedent is that furnished by Sardar Inder Singh vs State of Rajasthan (1) where, among others, the validity of section 15 of the Rajasthan (Protection of Tenants) Ordinance, 1949, was upheld. That section authorised the Government to exempt any person or class of persons from the operation of the Act, and it was urged before this court that this offended article 14. The argument was repelled, observing: "It is argued that that section does not lay down the principles on which exemption could be granted, and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government, and is therefore repugnant to article 14. It is true that that section does not itself indicate the grounds on which exemption could be granted, but the preamble to the Ordinance sets out with sufficient clearness the policy of the Legislature; and as that governs section 15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided. Vide Harishanker Bagla v, The State of Madhya Pradesh. " The learned Judges of the High Court were therefore, correct in their conclusion that section 13 of the Act was constitutionally valid but that individual orders of Government passed under that section could be the subject of judicial review in the manner already indicated. (1) ; , 621. 182 We shall now proceed to consider the points. urged by learned Counsel for the appellant contesting the correctness of the decision of the High Court setting aside the order of Government exempting the premises in dispute for the reason that it was passed on grounds not germane to the purpose for which the power was conferred. As already stated, the first point urged was that the order granting the exemption was an executive or an administrative order which was not amenable to being quashed by the issue of a writ of certiorari. We consider there is no substance in this objection. If the High Court were right in their view that the order of exemption was passed for reasons which did not fall within the purpose for which the power was conferred by section 13 of the Act the order itself would be one discriminatory of the second respondent as violating his fundamental right to equal protection of the laws. In such an event article 226 would certainly be available to set aside such an order which affected the fundamental right of the petitioner before the Court. Indeed, it was on the ground that individual orders passed by Government by virtue of the power conferred upon it by section 13 of the Act were examinable by the Court for their violating article 14 that the constitutionality of section 13 was upheld and in the circumstances no objection could, therefore, be taken to a judicial review of such individual orders. Besides, even if the order did not violate article 14, still if the High Court were right in the view that the same was beyond the powers conferred on Government by section 13 of the Act, we see no substance in the contention that the Court lacks power under article 226 to set aside an ultra vires order vitally affecting a person 's right to statutory protection against eviction. We do not consider that immunity from interference by the Courts could be sought for order,% which are plainly ultra vires merely because they were passed bona fide in the sense of being without indirect motive. Particularly so when the power of the High Court under article 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus, etc., as these writs 183 have been understood in England, but the power is general to issue any direction to the authorities, viz., for enforcement of fundamental rights as well as for other purposes. The second point urged was, and this was the main point argued by learned Counsel for the appellant,that the learned Judges of the High Court were in error in holding (a) that the reasons given by the Government were not germane to the purpose or policy of the Act and, therefore, outside the power conferred on them by section 13 of the Act, and (b) in con stituting themselves, as it were, as an appellate authority and examining the reasons which induced the Government to grant the exemption, and pronouncing upon the correctness or otherwise of these reasons. Before considering this argument it is necessary to advert to a submission of the learned Counsel for the appellant suggesting that the High Court were in error in calling for the reasons which induced the Government to pass the orders of exemption, though when the reasons were before the Court it was in a position to examine the legality of the order. We do not consider this submission well founded. The entire basis for upholding the constitutional validity of section 13 of the Act and considering that it did not offend the equal protection of the law guaranteed by article 14 of the Constitution was, that the discretion or the power conferred upon Government was not unguided, uncanalised or arbitrary, but that it had to be exercised in accordance with the policy and object of the enactment gatherable from the preamble as well as its operative provisions. The order itself might on its face have shown that it conformed to this requirement, in which event it would have been for the party challenging the validity of the order to establish to the satisfaction of the Court that it was malafide or had been passed on grounds not contemplated by or extraneous to, the object and purpose of the enactment or the principles which should have governed the exercise of the power. For instance, if the exemption had been in favour of a particular class of 184 buildings, say those belonging to charities religious or secular the classification would have been apparent in the very order of exemption. Where, however, the exemption granted is not of any class of buildings which would ex facie disclose a classification, but the exemption is of a specified building owned by A or in which B is a tenant, then prima facie it would be discriminatory and when the legality of the order is challenged, its intra vires character could be sustained only by disclosing the reasons which led to the passing of the order. In the present case, when the matter was before the appellate Court the Advocate General filed a memorandum setting out the reasons why exemption was granted in the three cases before the Court. In regard to the exemption which was the subject of controversy in writ appeal 28 of 1953 with which we are concerned, the memorandum which the Government filed ran: "The Government exempted the building. . . . for the following reasons: (1)When the High Court offered in 1940 to lease out the premises in question for a period of 21 years, Sri Chettiar elected to take it on lease only for a period of seven years, which expired in 1947. As per the High Court 's order in C. section Nos. 280 to 286 of 1939, Sri J. H. Irani, father of Sri P. J. Irani took a lease of the promises for a period of 13 years 11 1/2 months from 1947 and he deposited Rs. 10,000 towards the said lease. He is therefore entitled for the benefits from 1948 onwards. (2)Had not the Rent Control Act come into force, Sri P. J. Irani would have got possession in the ordinary course as per High Court 's order and the terms of the lease deed. The operation of the Act is therefore really a hardship to him. (3)Sri Chettiar is only an absentee lessee and he is having several other business in South India. (4)The conduct of Sri Chidambaram Chettiar in refusing to surrender the possession of the building to Sri P. J. Irani who had taken a valid lease under 185 the orders of the High Court is that of a hard litigant seeking to exploit the letter of the law without much regard to bona fides; and (5)Sri Chettiar had already managed to be in possession of the building for five more years than he was legitimately entitled to be." The learned Judges of the High Court held that the reasons which led the Government to grant the exemption were not those which were countenanced by the policy or purpose of the Act and that the order of exemption was, therefore, invalid. In doing so the learned Judges said: "Reasons 1, 2 and 4 go together and have refe rence to the order of the High Court in 1940 directing the Receivers to execute a lease for seven years to the appellant and after the expiry of that period to grant a lease for fourteen years to the second respondents father. It is undoubtedly true that but for the application of the Act, the second res pondent 's father would have obtained possession of the premises after the expiry of lease in favour of the appellant. That could be said of thousands of cases in which the leases in favour of tenants have expired and, but for the Act the owners would be entitled to obtain possession of the demised premises. If this circumstance alone is sufficient to exempt any premises from the operation of the Act, then the Act itself should be repealed. . . . . There is no policy or principle involved in this circumstance. " We agree with the learned Judges in the view here expressed. The mere fact that the tenant continued in possession after the termination of the tenancy is by itself no ground why he should be evicted from the premises, because it is the very policy of the Act to protect the right of tenants to continue in possession of the premises after the termination of their term because of the great difficulty of their obtaining alternative accommodation. The circumstance, therefore, of the termination of the second respondent 's tenancy cannot afford a justification for Government 24 186 to say that he deserved to be evicted. If the term had not expired the tenant would have been entitled to continue in possession even if the exemption were granted. Learned Counsel for the appellant urged that the High Court had failed to notice that the present case was one where there was a contest between two tenants and not between a landlord and a tenant and that they erred in approximating the position of the appellant to that of the landlord. We Bee no force in this contention, because a lessee of the reversion stands in the same position as a landlord and cannot have any higher rights, nor can the appellant derive any assistance from the fact that the second respondent declined to be a lessee for any term longer than seven years when that option was offered to him by the High Court in April May, 1940. The position of the second respondent cannot be worse than if he had taken a lease for a definite term of seven years with a covenant to restore possession at the end of the period. The fact that in May 1940, the second respondent had an option to take a lease for a longer term, but of which he did not avail himself, does not make any difference or render that a ground for withdrawing from him the protection of the statute. We also agree with the learned Judges of the High Court that ground No. 3 is not germane for granting an exemption. As was pointed out, "the important point to be considered by the Government was whether the appellant had not other theatres at which he could carry on the business which he was carrying on at the Gaiety theatre", and this they omitted to consider. The reason why the possession of the tenant whose term had expired was afforded statutory protec tion was his inability to secure alternative accommodation in which either to reside in the case of residential buildings or to carry on the business which he was carrying on in the case of non residential buildings. This was therefore a relevant matter which the Government had failed to take into account. The High Court characterised reason No. 5 as really not a reason at all and we agree with this observation. The 187 statute had admittedly conferred upon tenants, such as the second respondent the right to continue in possession after the termination of the lease in their favour, and the fact that such a tenant had exercised the rights conferred upon him by statute was certainly not an improper conduct meriting his being deprived of the statutory protection afforded by section 7. The learned Judges further pointed out that the order of Government was defective, in that it had not taken into account several relevant matters as for instance the second respondent expending considerable sums to carry out improvements to the theatre in 1949 etc. which bore upon the exercise of their power, and which if taken into account would have weighed against the grant of the exemption. In view however of the conclusion reached that the reasons assigned by Government for their order were not germane to the policy and purpose of the fact, we do not consider it necessary to pursue the matter further. The further point urged regarding the learned Judges of the High Court having erroneously constituted themselves into a Court of appeal need not detain us long. The short answer to it is that the learned Judges had not done so. The submission ignores the distinction between findings on facts which the Court in proceedings under article 226 must, save in very exceptional cases, accept as correct and the relevance of those facts for considering whether their establishment satisfied the grounds necessary for the exercise of the power vested in Government under section 13 of the Act. For instance in the case on hand, no fact found by the Government or stated by them as the reason or reasons which induced them to grant the exemption were even challenged before the High Court, the only contention urged by the second respondent which was accepted by the High Court, being that these facts were irrelevant for justifying the order. The appeal accordingly fails and is dismissed with costs to the contesting second respondent. SARKAR. , J. In this judgment we propose to deal only with one of the two questions that arise in this appeal. 188 Of these two questions, the first is whether section 13 'of the Madras Buildings (Lease and Rent Control) ' Act, 1949, offends article 14 of the Constitution. That Act makes provision, among other things, for controlling rents chargeable by landlords and for preventing unreasonable eviction of tenants. Section 13, the validity of which is challenged, gives the State Government power to exempt any building from all or any of the provisions of this Act. The contention was that this section gave arbitrary power to the Government to apply the law with unequal band as it did not furnish any guidance as to how the power to exempt was to be exercised. This question has been discussed fully by our brother Ayyangar. We agree with the view taken by him that the section does not offend the article. We have nothing further to add to what he has said on this aspect of the case. The other question is whether the power was duly exercised in the present case. On this question we have arrived at a conclusion different from that which has found favour with our brother Ayyangar. This is the question that we propose to discuss in this judgment. The power was exercised by an order made by the Government on June 4, 1952. It exempted from the operation of the Act certain premises used as a cinema house and called the Gaiety Theatre. The second respondent who was a tenant of the premises, was thereby deprived of the protection from eviction which he would have otherwise had under the Act. He, therefore, moved the High Court at Madras for a writ to quash this order. The High Court while upholding the validity of section 13 which also had been attacked by the second respondent, took the view that the order had been passed for,reasons not germane to the purpose for which the power of exemption under section 13 had been vested in Government, and quashed that order. This appeal is against this decision of the High Court. The circumstances in which the order came to be made were these. One Sir Hajee Ismail Sait had a certain plot of land in the city of Madras. He granted a 189 lease of that land sometime in 1914 to one Venkiah for constructing a cinema house on it. It is not clear whether Venkiah himself constructed any cinema house. It appears that he became insolvent and his assets, including the leasehold interest, vested in the Official Assignee who obtained an extension of the lease for a period of nine years from 1926 from the representatives of Sir Hajee Ismail Sait, who had died in the meantime. One Mrs. Madan purchased the lease hold interest from the Official Assignee and she later obtained a fresh lease from the representatives of Sir Hajee Ismail Sait for a period of seven years from June 1935, expiring on May 30, 1942. This lease gave Mrs. Madan the first option of refusal in case the lessor desired to let out the land on lease after its expiry. On January 4, 1937, the second respondent purchased from Mrs. Madan the lease hold right, including the superstructure of a cinema house which had by that time been constructed on the land by one of the previous lessees. This is the cinema house which came to be known as the Gaiety Theatre. The term of the lease was due to expire on May 30, 1942. In or about 1939, certain suits appear to have been instituted in the High Court at Madras in its Original Jurisdiction for the administration of the estate of Sir Hajee Ismail Sait. In those suits, orders had been passed appointing Receivers of that estate and the estate was thereafter being administered by the High Court. It appears that by the side of the Gaiety Theatre premises there was another plot of vacant land belonging to the same estate which was not bringing in any income. The High Court passed orders that that land should also be let out on a long term lease. The father of the appellant offered to take a lease of that land at a rent of Rs. 450 per month for a period of twenty one years with an option of renewal for another ten years, for the purpose of constructing a show house on it. This was sometime in 1940. At that time the lease of the adjoining Gaiety Theatre bad only about two more years to run. The appellant 's father did not like a competing showhouse in close 190 proximity to his own, and therefore, he suggested to the Receivers that he should be given the lease of the Gaiety Theatre premises also after the expiry of the second respondent 's lease on May 30, 1942, at the same rent which was being paid by the second respondent and for a term ending with his proposed lease in respect of the adjoining premises. The proposals were put up by the Receivers to the High Court for its consideration. The High Court thereupon called upon the second respondent to elect whether he would take a fresh lease of the Gaiety Theatre premises for a period of twenty one years after the expiry of his lease then current. This was done as he had the option under his lease. The second respondent was not prepared to take a fresh lease for twenty one years but he suggested that a lease for another seven years might be given to him on his agreeing to vacate the premises after the expiry of those seven years without claiming any extension or option. The proposals from the appellant 's father and the second respondent were then considered by the High Court and by consent of parties orders were passed by it on March 21, 1940, and the 2nd and 3rd of May, 1940. By these orders the Receivers were directed to grant a lease of the land adjoining the Gaiety Theatre premises to the appellant 's father for twenty one years commencing from May 1, 1940, with option for ten more years. These orders further directed the Receivers to grant a lease of the Gaiety Theatre premises to the second respondent for a period of seven years from the same date without any option, and to grant a lease of these premises to the appellant 's father for a period of thirteen years and eleven months and a half commencing from the expiry of the seven years for which a lease of them was going to be granted to the second respondent. The orders required the appellant 's father to deposit a security of Rs. 10,000 in respect of the leases to be granted to him and this he duly deposited. All these leases were then granted by the Receivers under the orders of the Court. Apparently, the second respondent surrendered the remaining term of his lease which 191 was to have expired on May 30, 1942. Relying on the aforesaid orders and leases and also on the second respondent 's agreement to vacate the Gaiety Theatre premises on the expiry of his lease, the appellant 's father constructed a showhouse on the land adjoining the Gaiety Theatre premises which came to be known as the Casino Theatre. On October 1, 1946, the Act came into force and in view of its provisions, the second respondent could not be evicted from the Gaiety Theatre premises even after the expiry of his lease. Taking advantage of the Act, the second respondent refused to vacate the premises after the expiry of his lease on April 30, 1947, which he had expressly agreed to do. On May 1, 1947, the appellant 's mother, his father having died in the meantime, deposited with the Receivers a further sum of Rs. 9,000 as rent in advance, as required by the terms of the lease. Thereafter the appellant ,seems to have succeeded to the estate of his father. He took various proceedings to eject the second respondent from the Gaiety Theatre premises but was unsuccessful. Thereupon he moved the Government and the Government after giving the second respondent a hearing, and fully considering the matter, passed the order of June 4, 1952. The High Court had called upon the Government to state the reasons. why it had exercised its power under a. 13 exempting the Gaiety Theatre premises from the operation of the Act. The Advocate General appearing for the Government, the first respondent in this appeal, filed a memorandum setting out these reasons. The reasons were as follows: "(1). When the High Court offered in 1940 to lease out the premises in question for a period of 21 years, Sri Chettiar elected to take it on lease only for a period of seven years, which expired in 1947. As per the High Court 's order in C. section No. 280 286/1939, Sri J. H. Irani took a lease of the premises for a period of 13 years and 11 1/2 months from 1947 and he deposited Rs. 10,000 towards the said lease. He is therefore entitled for the benefits from 1948 onwards. 192 (2)Had not the Rent Control Act come into force, Sri P. J. Irani would have got possession in the ordinary course as per High Court 's order and the terms of the lease deed. The operation of the Act is therefore really a hardship to him. (3) Sri Chettiar is only an absentee lessee and he is having several other businesses in South India. (4) The conduct of Sri Chidambaram Chettiar in (4) Sri Chettiar had already managed to be in refusing to surrender the possession of th e building to Sri P. J. Irani who had taken a valid lease under the orders of the High Court is that of hard litigant seeking to exploit the letter of the law without much regard to bona fides; and (5)Sri Chettiar had already managed to be in possession of the building for five more years than he was legitimately entitled to be." The High Court having considered the reasons came to the conclusion that they did not serve the purpose of the Act. We are unable to accept this view. It may be that some of the reasons given would not have justified the order but broadly, we think, they referred to facts which showed that the power had been exercised legitimately. Indeed, on the facts of this case which we have set out earlier, we think that it was unnecessary for the High Court to ask the Government to state the reasons for its order. In our view, these facts themselves sufficiently show that the order was within the objects of the Act and not extraneous to section 13. We wish to observe before we proceed further, that in considering whether the reasons given by the Government are sufficient to bring the order within the objects of the Act, the High Court had no power to act as if it were sitting in appeal over the Government 's decision. A court cannot set aside an order under section 13 on the ground that it would not itself have made the order for the reasons for which the Government had made it. All that the Court has to see is whether the power was used for any extraneous purpose, that is to say, not for achieving the object for which the power had been granted. When it is alleged that the power was used for a purpose other than achieving the object for which the 193 power is granted, the initial onus must be on the party which alleges abuse of power and there must be prima facie evidence in support of the allegation. It is only then that the onus may shift. However all this may be, was the power in this case in fact used for an extraneous purpose? It is not said that the power had been exercised for any ulterior purpose. Now, the purpose of the Act, quite clearly, is to prevent unreasonable eviction and also to control rent. These two purposes are intertwined. An eviction becomes unreasonable where the object is to exploit the situation arising out of the dearth of accommodation by letting out the premises at an unreasonably high rent and on realisation of extortionate premium. Often these are realised secretly, particularly so, the premium. Therefore, when there is no risk of an opportunity arising in which a landlord may be able to realise illegal rent or premium, an eviction may not be unreasonable; indeed, there may be circumstances which would justify the inference that the tenant is trying to take an undue advantage of the situation and in such a case, the Government would be justified and within its power to exempt the premises from the operation of the Act. That is the position here. The lease was granted at a point of time when the situation was normal, that is, when a landlord was not in a position to make an unconscionable bargain for himself by exploiting the situation, for the lease was granted in 1940 when there was no scarcity of accommodation. Next, the lease was granted under orders of Court. It was granted by the officers of the Court. There is no question of either the Court or the officers using the situation for purposes of exploitation. Again, to refuse exemption under section 13 in the present case would amount to preventing the Court from administering the estate in its charge in a manner which it has the power to do and which of course is its duty to do for the benefit of the parties entitled to the estate. There was nothing unfair to the second respondent in granting the exemption, for the second respondent had been given the 25 194 option to take up the lease. He had refused it. He is now objecting to the exemption only because he finds it more profitable to continue in the premises than he thought it would be at the time the offer had been made to him. The appellant and his father had been deprived for a long time of the use of a considerable sum of money which was paid in terms of the bargain to which the second respondent had freely entered. It may be that the appellant 's father would not have gone in for the lease of the Casino Theatre premises and spent enormous sums of money for constructing a showhouse there if the second respondent had not given him to understand that he would leave the Gaiety Theatre premises on April 30, 1947. The fact that the second respondent spent money, if any, in improving the Gaiety Theatre premises is irrelevant. He knew that he had undertaken to vacate the premises by April 30, 1947, and that the appellant was taking steps to recover possession of these premises. We do not think that the difficulties of a tenant on eviction decide what is or is not "unreasonable eviction". One of the objects of the Act as stated in the preamble is "to prevent unreasonable eviction of tenants". The word "unreasonable" necessarily connotes a consideration of all the circumstances including the conduct of parties in order to find out what is unreasonable. It seems to us that under section 13 it is the duty of the Government to take into consideration all the relevant circumstances of a particular case or class of cases in order to determine if the pro tection of the Act given to the tenant or tenants concerned should be withdrawn. The section is applicable not merely to institutions like hospitals or schools, but may be applied to other cases also, where there is no question of any unreasonable eviction of the tenant, or where prevention of eviction itself may be unreasonable. We, therefore, think that the Government 's action in exempting the Gaiety Theatre premises from the operation of the Act was within the scope of the Act, and the High Court does not seem to have considered the case from this point of view. For these reasons, in our view, the order of June 4, 195 1952, was a competent and legal order and no exception can be taken to it. We would, therefore, allow the appeal and set aside the order of the High Court. The second respondent should pay the costs of the other parties throughout. By COURT. In accordance with the majority Judgment, the appeal is dismissed with costs to the contesting second respondent.

One C had obtained a lease of a cinema house which was to expire in May 1942. In the meantime litigation ensued between the owners of the cinema house, and the High Court appointed receivers to administer the property. In 1940 one I offered to take a lease of the cinema house for 21 years. The High Court offered C the option of taking the lease for 21 years but C was willing to take it only for 7 years upto May 1947. Thereupon the High Court ordered that a lease be given to C upto May 1947, and thereafter the lease be given to 1 upto May 1961. In accordance with this order the receivers executed two leases, one in favour of C and a reversionary lease in favour of I. Before the lease in favour of C expired the Madras (Lease & Rent Control) Act, 1946, came into force which protected tenants in 22 170 possession from eviction even after the expiry of their leases. This Act was replaced by the Madras Buildings (Lease & Rent Control) Act, 1949, which contained similar provisions. Section 13 of the 1949 Act empowered the State Government to "exempt any building or class of buildings from all or any of the provisions of this Act. " On the application of I the Government passed an order on June 4, 1952, under section 13 exempting the cinema house from all the provisions of the Act. Subsequently, the reasons for making the order were given by the Government to be: (i) C had deliberately, though he had been offered a lease for 21 years by the High Court, taken a lease for 7 years and he was seeking to take advantage of the Act after the expiry of his lease, (ii) C was an absentee lessee and had several other business and (iii) C had already been in possession for 5 years more than he was legitimately entitled to be. C filed a writ petition before the High Court for quashing the order on the grounds that section 13 of the Act vested in the Government an unguided and uncontrolled discretion and violated article 14 of the Constitution and that the order deprived C of the equal protection of the beneficial provisions of the Act. The High Court held that section 13 was not unconstitutional but that the order of the Government was ultra vires. I appealed to the Supreme Court. At the hearing C sought to challenge the validity of section 13 also. Held, that section 13 of the Act did not violate article 14 and was not unconstitutional. Enough guidance was afforded by the preamble and the operative provisions of the Act for the exercise of the discretionary power vested in the Government. The power tinder section 13 was to be exercised in cases where the protection given by the Act caused great hardship to the landlord or was the subject of abuse by the tenant. Ram Krishna Dalmia vs Sri justice Tendolkar, [1959] S.C.R. 279 and Sarday Inder Singh vs State of Rajasthan, ; , followed. Held, (per Sinha, C.J., Ayyangar and Mudholkar, jj.), that the order passed by the Government under section 13 was ultra vires and void. An order made under section 13 was subject to judicial review on the grounds that (a) it was discriminatory, (b) it was made on grounds which were not germane or relevant to the policy and purpose of the Act, and (c) it was made on grounds which were mala fide. In the present case the grounds given for granting the exemption were not those countenanced by the policy or purpose of the Act. The mere fact that C had taken the lease for 7 years and continued in possession after its expiry was no ground for eviction as the policy of the Act was to protect such possession. The fact that C had other business was immaterial; the Government failed to consider the question whether if C was evicted he could secure alternative accommodation where he could carry on the business which he was carrying on in the cinema house. 171 Per section K. Das and A. K. Sarkar, JJ. The order passed by the Government under section 13 was a competent and legal order. All that the court had to see was whether the power had been used for any extraneous purpose, i.e., not for achieving the object for which the power was granted. The purpose of the Act was to prevent unreasonable eviction and to control rent. Where, as in the present case, there was no risk of the landlord being able to realise illegal rent or premium the eviction would not be unreasonable. Further, if exemption was refused in the present case it would prevent the High Court from administering the property in its charge. The order was not unfair to C for he had been offered a lease for 21 years which he declined.

The property of the appellants continued to remain under requisition by virtue of the several amendments made to the and the compensation payable in respect of it was required to be revised for a period of 5 years from 7.3.75 to 6.3.1980. As there was no agreement between the parties on the question of compensation payable for the said period, the said question was referred to an arbitrator under section 8 of the Requisitioning Act to determine the compensation payable. The arbitrator by his award fixed the compensation payable for the property at Rs.21,000 per month as against the claim of Rs.77,270 per month made by the appellants. Aggrieved by the decision of the arbitrator the appellants filed an appeal before the High Court of Madras under s.11 of the Requisitioning Act. The Registry of the High Court raised an objection regarding the amount of court fee paid on the memorandum of appeal. The matter was placed before the Division Bench of the High Court and it held that the appellants were liable to pay court fee on the memorandum of appeal under section 51 of the Tamil Nadu Court Fees and Suits Valuation Act 1955 (for short, the Act) ad valorem on the amount of compensation which was in dispute in the appeal. In appeal to this Court, the appellants contended that the amount 755 of court fee payable on a memorandum of appeal filed under section 11 of the Requisitioning Act should not be computed in accordance with section 51 of the Act as a fixed court fee was payable under the residuary provision, that is, article 3 (iii) (A) (1) (a) of Schedule II of the Act. In support of this contention the appellants raised two points; (i) that since there is no transfer of title to the property which is requisitioned from its owner to the Government, the said transaction is not an acquisition and hence those provisions of the Requisitioning Act under which the property is requisitioned do not constitute a law providing for acquisition of property and therefore, section 51 of the Act would not be applicable because it relates only to appeals filed against an order relating to compensation under any Act for the time being in force for the acquisition of land; and (ii) that the award made by the arbitrator under section 8 of the Requisitioning Act not being an 'order ' as defined in the Code of Civil Procedure 1908, the appellants cannot be called upon to pay court fee in accordance with section 51 of the Act since section 51 refers to court fee payable on a memorandum of appeal against an 'order '. Dismissing the appeal, ^ HELD: 1. The appeal before the High Court filed under section 11 of the Requisitioning Act falls squarely under section 51 of the Act. Therefore, the court fee has to be paid on ad valorem basis as provided in article 1 of Schedule I to the Act. It follows that the residuary Article, that is, article 3(iii) (A) (1) (a) of Schedule II to the Act is not attracted. [769E F] 2(i) Section 3 of the Act states that in the Act 'unless the context otherwise requires ' the words and expressions defined in that section shall carry the meaning given to them in various clauses in that section. It is relevant to note that in section 51 of the Act which arises for consideration the word 'order ' does not appear in isolation. The section states that the fee payable under the Act on a memorandum of appeal against an order relating to compensation in any Act for the time being in force for the acquisition of property for public purposes shall be computed on the difference between the amount awarded and the amount claimed by the appellants. The 'order ' referred to in section Sl of the Act need not be an 'order ' of a civil court as defined in section 2(14) of the Code of Civil Procedure but should be an 'order ' relating to compensation under any Act for the time being in force for the acquisition of property for public purposes. [768G H; 769A C] 2(ii) There is no doubt that the award passed by the Arbitrator 756 under the Requisitioning Act is a formal expression of a decision made by a competent authority which is binding on the parties and it relates to compensation payable under an Act for the time being in force for the acquisition of property for the public purposes. Therefore, even though the expression 'order ' simpliciter has to be understood in the sense in which that expression is defined in section 2 (14) of the Code of Civil Procedure, the word 'order ' found in section 51 of the Act bas to be read differently having regard to the words which qualify that expression in that section, namely, 'relating to compensation under any Act for the time being in force for the acquisition of properties '. The said order need not be an order of a civil court only. It can be of any statutory authority. But it must determine compensation for a property acquired under a law of acquisition of property for public purpose. In the instant case, the award made under section 8 of the Requisitioning Act satisfies these tests. [769C E] Sahadu Gangaram Bhagade vs Spl. Deputy Collector, Ahmedanagar & Anr., ; , relied upon. Y. Venkanna Choudhary vs Government of India, by Military Estates officer, Madras & Anr., AIR 1976 Madras 41, Laxshminarayana Rao & Ors. vs Revenue Divisional officer, Kakinada & Ors., A.I.R. 1968 Andhra Pradesh 348, M. Ramachandran & Ors. vs State of Madras represented by the Collector, Coimbatore, 87 Law Weekly Madras 791, Balakrishnan Nambiyar & Ors. vs Kanakathidathil Madhavan & Ors., & Ghouse Saheb vs Sharifa Bi & Ors., A.l. R. 1977 Karnataka 181, approved. Hirji Virji Jangbari vs Government of Bombay, A.I.R. 1945, Bombay 348, Kanwar Jagat Bahadur Singh vs The Punjab State, Crown 's case, A.l. R. 1957 Punjab 32 Crown vs Chandrabhanlal and Ors., AIR. 1957 Nagpur 8 and Mangal Sen vs Union of Indian A.l.R., 1970 Delhi 44, disapproved. 3(i) The expression 'acquisition ' is not defined in the Act. Sections 3 to 6 of the Requisitioning Act deal with the powers of the Government in respect of requisitioning of property and section 7 of that Act confers power on the Government to acquire a property which has been requisitioned. Whenever a property is requisitioned by the competent authority it is entitled to call upon the owner or any other person who may be in possession of the property to surrender possession thereof to the Government. Section 5 of the Requisitioning Act provides that all properties requisitioned under section 3 shall be used 757 for such purposes as may be mentioned in the notice of requisition. Such requisitioned property may be released from requisitioning under section 6. The title to property requisitioned under the Requisition Act continues to rest with the owner, the Government being entitled to only the possession of such property. [761 B E] 3(ii) Not only is a right to possession a right of property, but where the subject of proprietary rights is a tangible thing, it is the most characteristic and essential of those rights. Possession, it is said, is nine points in law. An owner without possession has only a mere shell while the person in possession enjoys the property in many ways. In this situation, it is difficult to say that there cannot be deprivation of property without deprivation of title also. Deprivation of possession for an indefinite period is acquisition of property during that period though the title may continue to rest with the owner. That is why the requisitioning law also had to satisfy article 19(1) (f) and article 31 of the Constitution when they were in the Constitution. [764B D] 3(iii) The Supreme Court has treated both requisitioning of property and acquisition of property as meaning the acquisition of property in the large sense and there is no reason to depart from the views expressed by the two Constitution Benches of this Court in the State of West Bengal vs Subodh Gopal Bose and Ors,. ; and Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning & Weaving Co. Ltd. and Ors. , ; The Minister of State for the Army vs Dalziel, ; , referred to.

The appellants, a Hindu undivided family, carrying on business in the former State of Mysore, were assessed under the Mysore Income tax Act for the year of assessment 1949 50 corresponding to the year of account July 1, 1948, to June 30, 1949. The Indian Income tax Act came into force in that area in April 1, 1950, and on December 26, 1950, notice under section 22(2) of that Act was served upon the appellants to submit their return for the assessment year 1950 51. On September 8, 1952, the appellants submitted their return stating that they had no assessable income for that year. The Income Tax Officer passed on that return an order, "no proceeding", and closed the assessment. When the appellants submitted their return for the next assessment year, their books of account disclosed an opening cash credit balance of Rs. 1,87,000 and odd on July 1. 1949. They failed to produce the books of account of the previous years, and the Income tax Officer held that Rs. 1,37,000 out of the said opening balance represented income from an undisclosed source. The appellants submitted a fresh return for the assessment year 1950 51 purporting to do so under section 22(3) of the Indian Incometax Act. Pursuant to the direction of the Appellate Assistant Commissioner, the Income Tax Officer on October 15, 1957, served on the appellants a notice under section 34 of the Act and thereupon the appellants moved the High Court under article 226 for an order quashing the said notice and the proceeding as without jurisdiction. The High Court dismissed the petition. Held, that it was not correct to say that the issue of the notice for reassessment was without jurisdiction as the assessment was yet pending. Under section 23(1) of the Indian Income tax Act, it is open to the Income tax Officer, if he is satisfied as to correctness of the return filed by the assessee, to assess the income and determine the sum payable on the basis of the return without requiring the assessee either to be present or to Produce evidence. The order 'no proceeding recorded on the. return must, therefore, mean that the Income Tax Officer bad accepted the previous return and assessed the income as nil. A revised return under section 22(3) filed by the assessee may be 912 entertained only before the order of assessment and not thereafter. Lodging of such a return after the assessment is no bar to reassessment under section 34(1) of the Act. It could not be said, having regard to the provisions of section 13(1) of the Finance Act (XXV of 1950) and cl. 5(1) of Part. B States (Taxation Concessions) Order 1950, issued by the Central Government under section 60A of the Indian Income tax Act, that for the assessment year 1950 51 the appellants were assessable under the Mysore Income tax Act and not under the Indian Income tax Act.

The appellant was a tenant of the respondent. Having fallen into arrears of rent he was given a notice (a) demanding arrears of rent and permitted increases under the Bombay Rents. Hotel and Lodging House Rat as Control Act, 1947, and (b) terminating his tenancy in terms of section 106 of the Transfer of Property Act, Receiving no response to the notice the respondent filed a suit against the appellant. On the first day of the Heading of the suit and during its pendency the appellant deposited part of the arrears in Court but not the full amount due. The trial Court passed a decree against him which was confirmed by the appellate Court. The High Court dismissed his revision petition. With special leave he appealed to this Court and urged that (i) he was entitled to the benefit of section 12 ( 1 ) of the Act and that (ii) even if section 12 (3) (b) was applied he was not liable to be eiected. HElD : (i) Section 12(1) must be read with the Explanation and so read it means that a tenant can only be considered "to be ready and willing to pay" if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the court under sub section (3) of section 11 and hereafter pays or tenders the amount of rent or permitted increases specified by the court. The readiness and willingness to pay has to be judged in the light of the facts of the case. Where as in the present case a suit is filed on the ground that the tenant was in arrears for a period of more than six months and although raising a dispute as to the standard rent or permitted increases recoverable under the Act, the tenant makes no application in terms of section 11(3) he cannot claim the protection of section 12(1) by merely offering to pay or even paying aii arrears due from him when the court is about to pass a decree against him. [351 H 352 B] Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs Subbash Chandra Yograi Sinha; , , distinguished. Vora Abbasbhal Alimahomed vs Haii Gulamnabi Haii Safibhai, ; , Mrs. Manordma Masurekar vs Mrs. Dhanlaxmi G. Shah and another. ; , applied. (ii) The case did not come under section 12(3) (b). To be within the protection of that provision, the tenant must not only pay all the arrears due from him on the first day of the hearing of the suit, but he must thereafter continue to 'pay or tender in court regularly the rent and the permitted increase till the suit is finally decided. There was a failure on the part of the appellant to pay or tender in court all the amounts which fell due, and he could not therefore get the protection of section 12(3) (b) of the Act. [353 B E]

Against the judgment of the Single judge of the Punjab High Court dated January 5, 1953, in which he followed the decision of a Division Bench holding that section 7A of the Delhi and Ajmer Rent Control Act, 1947, was unconstitutional and void, the appellants preferred an appeal under the Letters Patent. Meanwhile the judgment or the Division Bench was brought up by way of appeal to the Supreme Court, and as the appeal was getting ready to be heard, the appellants made an application on January 5, 1959, for special leave to appeal to the Supreme Court against the judgment of the Single judge. No notice was given to the respondent to the application, and special leave was granted ex parte. The Letters Patents appeal was thereafter withdrawn by the appellants. When the appeal came on for hearing in due course, the respondent raised an objection to the hearing of the appeal on the grounds that the application for special leave was barred by limitation, that there were no sufficient reasons for condoning the long. delay of four years, and that the special leave granted ex parte should be revoked. 243 Held, that, in the peculiar circumstances of the case, leave should not be revoked. Expect in very rare cases, if not invariable, the Supreme Court should adopt as a settle rule that the delay in making an application for special leave should not condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave. Desirability of the Rules of the Supreme Court being amended suitably pointed out.

Each of the appellants in the two appeals who were tenants of land in Tanjore on which non residential premises had been constructed by them, applied to the Munsif under section 9 of the Madras City Tenants Protection Act, 1921 (111 of 1922) to have the respective sites conveyed to them after fixing the sale price as contemplated by the Act. Pending the decision of he applications by the Munsif, the protection and rights given to the tenants who had constructed buildings on leased and by the Principal Act was withdrawn by Act XIII of 1960, in respect of non residential buildings in Tanjore but with regard to the cities of Madras, Salem, Madurai, Coimbatore and Tiruchirappalli the protection and rights were retained both as regards residential buildings and non residential buildings. The appellants applied under article 226 of the Constitution to the High Court of Madras praying for a mandamus directing the Munsif to determine their applications under section 9 of the Principal Act as extended to the town of Tanjore by Notification and the Act of 1955 ignoring Act XIII of 1960 which was impugned as offending articles 14, 19 and 31 of the Constitution. The High Court upheld the validity of the Act following the earlier decision of that Court. Held that confining the protection to residential buildings only in the town of Tanjore while giving protection to tenants of both residential and non residential buildings in the other 283 towns was based upon real differences between Tanjore and the other towns regarding the pressure on non residential accommodation and other relevant factors including population and that the differentiation was related to the object namely protecting tenants of residential buildings principally and also of nonresidential buildings where the need was most felt. Shri Ram Krishna Dalmia vs Shri Justice section R. Tendolkar ; , Bhudan Choudhury vs State of Bihar, ; and The State of West Bengal. vs Anuwar Ali, ; , referred to. Held, further, that article 19(1) (f) guarantees both abstract as well as concrete rights of property and that property has the same meaning in article 19(1) (f) and article 31 (1). State of West Bengal vs Subodh Gopal Bose ; , The Commissioner Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Nutt, ; and Chiranjit Lal Choudhury vs Union of India, [1950] 869, referred to. Held, further, that law ' under article 31 must be a valid law and to be valid it must stand the test of other fundamental rights including article 19(1) (f) of the Constitution. Kavalappara Kottarathil Kochuni vs State of Madras, referred to. Held, further, that the right to purchase property conferred by a Statute is in its nature the same as the right of purchase conferred by contract and in neither event could it amount to a right of property. Maharana Shri Jayvantsinghji Ranmalsinghji etc. vs The, State of Gujrat, [1662] Supp. 2 section C. R. 41 1. Held, also that the principal Act did not confer a right on the tenant to the superstructure and therefore, the impugned Act did riot take away any such right.

On 9.6.1936 the predecessor in interest of the respond ents executed a lease deed in favour of the predecessor in interest of the appellant, for a period of 15 years. The property leased out was vacant land, well and Kaichalai, and the lessee was permitted to construct on the vacant land and install petrol selling business. It was further stipulated that after the expiry of the lease period the lessee shall at his own expense remove the structure put up by him and deliver possession of the vacant land together with well and Kaichalai. The lease was extended from time to time. The lessor had filed petitions in 1962 and 1979 to evict the lessee under the Madras Buildings (lease and Rent Control) Act, 1950 but without success. Thereafter, in 1979 the present respondents instituted a petition for eviction of the lessee on the ground of demolition and reconstruc tion, and of wilful denial of title, within the meaning of Sections 14(1)(b) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. In the meantime, the provisions of the Tamil Nadu City Tenants ' Protection Act, 1922 were extended to the municipal limits of Udamalpettai. Taking advantage of this, the lessee filed petition claiming the benefit of compulsory purchase conferred on tenants of land under the said Act. The Dis trict Munsif cum Rent Controller allowed the lessor 's peti tion for eviction and dismissed the lessee 's petition for compulsory purchase. The Sub Judge dismissed the appeals. The lessee fried two revision petitions before the High Court which declined to interfere. Before this Court it was contended on behalf of the appellant that the original lease comprised only of the vacant site, well and Kaichalai; the kaichalai was merely in the nature of a shed put up for the tethering 783 of cattle and it was not a 'building ' within the meaning of Section 2(2) of the Rent Control Act; though the small Kaichalai was situated in a corner of the site, the lease intended by the parties was only that of the site. It was further contended that where a lease was a composite one of land and buildings, the court had to address itself to the primary or dominant intention of the parties; if the inten tion was to lease a building the lease of land being ad junct or incidental, the Rent Control Act would apply; on the other hand, if the dominant intention was to lease a site the presence of a building thereon not being consid ered material by either party the lease would not be one of a 'building ' covered by the Rent Control Act. Larsen & Toubro case ; , relied upon. On behalf of the respondents it was contended that, in the case of a composite lease; the existence of a building or hut on the land (howsoever small, insignificant or use less it may be) was sufficient per se to bring the lease within the scope of the Rent Control Act. Irani vs Chidambaram Chettiar, AIR 1953 Madras 650 and Salay Mohd. Sait vs J.M.S. Charity, [1969] 1 MLJ SC 16, relied upon. Dismissing the appeals, this Court, HELD: (1) The Tamil word "kaichalai" seems to denote a structure or a roof put up by hand. Whatever may be the precise meaning of the term, the definition in Section 2(2) of the Rent Act clearly includes the 'kaichalai ' in the present case. [789D] (2) Since the Rent Act applies to residential and non residential buildings alike, the expression 'hut ' cannot be restricted only to huts or cottages intended to be lived in. It will also take in any shed, hut or other crude or third class construction consisting of an enclosure made of mud or by poles supporting a tin or asbestos roof that can be put to use for any purpose, residential or non residential, in the same manner as any other first class construction. [789E F] (3) In the case of composite lease of land and building, a question may well arise whether the lease is one of land although there is a small building or hut (which does not really figure in the transaction) or of a lease of the building (in which the lease of land is incidental) or a lease of both regardless of their respective dimensions. [790G] 784 (4) It is not always necessary that there should be a dominant intention swaying the parties. There may be cases where all that is intended is a joint lease of both the land and the building without there being any consideration sufficient to justify spelling out an intention to give primacy to the land or the building. The test of dominant intention or purpose may not be very helpful in such cases in the context of this legislation. [791F; 792B] Sivarajan vs Official Receiver, AIR 1953 Trav. Co. 105; Nagamony vs Tiruchittambalam, AIR 1953 Trav. Co. 369; Offi cial Trustee vs United Commercial Syndicate, ; Raj Narain vs Shiv Raj Saran, AIR ; Ven kayya vs Subba Rao, AIR 1957 AP 619; Uttam Chand vs Lalwani, AIR 1965 SC 716 and Dwarka Prasad vs Dwarkadas, ; (5) In the context of this case, we should be guided not by any theory of dominant purpose but by the consideration as to whether the parties intended that the building and land should go together or whether the lessor could have intended to let out the land without the building. [794B] Sultan Bros. P. Ltd. vs C.I.T., ; , referred to. (6) Having regard to all the facts and circumstances, the correct inference appears to be that what the lessor intended was a lease of both the land and the building, this being a composite lease with a composite purpose. In these circumstances, this letting would come in within the scope of Rent Control Act. [795C] (7) Where a person leases a building together with land, it seems impermissible in the absence of clear intention spelt out in the deed, to dissect the lease as (a) of build ing and appurtenant land covered by the Rent Control Act and (b) of land alone governed by other relevant statutory provisions. What the parties have joined, the court cannot tear as under. [796B]

The first respondent was the founder and Managing Director of a company, the second respondent in the appeal, which was incorporated in the State of Mysore and conducted a Prize Competition called the R. M. D. C. Cross words through a weekly newspaper printed and published at Bangalore. This paper had a wide circulation in the State of Bombay, where the respondents set up collection depots to receive entry forms and fees, appointed local collectors and invited the people by advertisements in the paper to participate in the competitions. On November 20, 1952, the Bombay Legislature passed the Bombay Lotteries and Prize Competitions Control and Tax (Amendment) Act of 1952, and widened the scope of the definition of 'prize competition ' contained in section 2(1) (d) of the Bombay Lotteries and Prize Competition Control and Tax Act of 1948, so as to include prize competitions carried on through newspapers printed and published outside the State and inserted a new section, section 12A, levying a tax on the promoters of such competitions for sums collected from the State. Thereupon, on December 18, 1952, the respondents moved the High Court of Bombay under article 226 of the Constitution and contended that the Act as amended and the Rules framed thereunder in so far as they applied to such prize competitions were ultra vires the State Legislature and violated their fundamental rights under article 19(1) (g) and freedom of inter State trade under article 301 of the Constitution. The Single Judge who heard the matter in the first instance as also the court of appeal found in favour of the respondents, though on somewhat different grounds, and the State of Bombay preferred the appeal. The principal question canvassed in this Court related to the validity. or otherwise of the impugned Act. It was contended on behalf of the appellant that the impugned Act was a law relating to betting and gambling and as such was covered 875 by Entries 34 and 62 of List II in the Seventh Schedule to the Constitution, whereas the contention of the respondents was that the Act was with respect to trade and commerce and came under Entries 26 and 60 of that List. Held, that in testing the validity of an Act it was necessary, in the first place, to decide whether it was with respect to a topic assigned to the legislature and, secondly, where it was so and the legislature was a State Legislature and the Act purported to operate beyond the State, whether there was sufficient territorial nexus to validate such operation and, lastly, whether the powers of the legislature were in any other way fettered by the Constitution. So judged, the impugned Act was a perfectly valid legislation and its constitutionality was beyond question. Regard being had to the purpose and scope of the Act read as a whole there could be no doubt that all the categories of prize competitions included in the definition contained in section 2(1) (d) of the Act were of a gambling nature. The qualifying ' clause appearing at the end of cl. (1) must apply to each of the five kinds enumerated therein, and the word 'or ' appearing after the word I promoters ' and before the word 'for ' in the clause must be read as 'and '. Similarly, cl. (ii), properly construed, could not include any prize competitions other than those of a gambling nature. Elderton vs Totalisator Co. Ltd., , held inapplicable. The impugned Act was, therefore, a legislation with respect to betting and gambling and fell under Entry 34 of List II of the Seventh Schedule to the Constitution and was within the competence of the State Legislature. Taxes on gambling are a well recognised group of indirect taxes and section 12A of the Act in seeking to tax the gross collections in the hands of the promoters, and not their profits, was only following an easy and convenient way of getting at the gambler 's money in their hands and this made no difference in the character of the tax, essentially one on betting and gambling and not on any trade, and, consequently, the section fell within Entry 62 and not Entry 6o of List II of the Seventh Schedule to the Constitution. A prize competition that did not to a substantial degree depend upon the exercise of skill for its solution would be of a gambling nature and a scrutiny of the prize competitions offered by the respondents clearly showed that there was an element of chance to start with, and, consequently, they must be of a gambling nature and fell within the mischief of the Act. The doctrine of territorial nexus was a well established doctrine and could apply only when (1) the territorial connection between the persons sought to be taxed and the legislating State was real and not illusory and (2) the liability sought to be imposed was pertinent to that connection. The existence of sufficient 876 territorial nexus in a particular case was essentially a question of fact. There could hardly be any doubt in the instant case that the impugned Act satisfied all these tests and, consequently, it was unassailable on the ground of extra territoriality. Gambling activities were in their very nature and essence extra commercium although they might appear in the trappings of trade. They were considered to be a sinful and pernicious vice by the ancient seers and law givers of India and have been deprecated by the laws of England, Scotland, United States of America and Australia. The Constitution makers of India, out to create a welfare State, could never have intended to raise betting and gambling to the status of trade, business, commerce or intercourse. The petitioners, therefore, had no fundamental right under article 19(1) (g) or freedom under article 301 Of the Constitution in respect of their prize competitions that could be violated and the validity of the impugned Act, in pith and substance an Act relating to gambling, did not fall to be tested by articles 19(6) and 304 Of the Constitution. judicial decisions on article 1, section 8, sub section (3) Of the Constitution of the United States and section 92 of the Australian Constitution should be used with caution and circumspection in construing articles 19(1) (g) and 301 of the Indian Constitution. State of Travancore Cochin vs The Bombay Co. Ltd. ; and P. P. Kutti Keya vs The State of Madras, A.I.R. (1954) Mad. 621, referred to. The King vs Connare, ; , The King vs Martin; , , Commonwealth of Australia vs Bank of New South Wales, L.R. (195o) A.C. 235, Mansell vs Beck, Australian Law journal Vol. 3o, NO. , Champion vs Ames, ; , Hipolite Egg Co. vs United States, ; , Hoke vs United States, ; , United States vs Kahriger, ; and Lewis vs United States, 99 L.Ed.475, discussed.

minal Appeal No. 177 of 1959. Appeal by special leave from the judgment and order dated May 23, 1958, of the Punjab High Court in Criminal Appeal No. 515 of 1957. Jai Gopal Sethi and R. L. Kohli, for the appellant. B. K. Khanaa, R. H. Debhar and D. Gupta, for the respondent. April 24. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is against the order of the Punjab High Court dismissing the appellant 's appeal against his conviction under section 307, Indian Penal Code. Bimla Devi, P. W. 7, was married to the appellant in October, 1951. Their relations got strained by 1953 and she went to her brother 's place and stayed there for about a year, when she returned to her husband 's place at the assurance of the appellant 's maternal uncle that she would not be maltreated in future. She was, however, ill treated and her health deteriorated due to alleged maltreatment and deliberate undernourishment. In 1956, she was deliberately starved and was not allowed to leave the house and only sometimes a morsel or so used to be thrown to her as alms are given to beggars. She was denied food for days together and used to be given gram husk mixed in water after five or six days. She managed to go out of the house in April 1956, but Romesh Chander and Suresh Chander, brothers of the appellant, caught 256 hold of her and forcibly dragged her inside the house where she was severely beaten. Thereafter, she was kept locked inside a room. On June 5, 1956, she happened to find her room unlocked, her mother in law and husband away and, availing of the opportunity, went out of the house and managed to reach the Civil Hospital, Ludhiana, where she met lady Doctor Mrs. Kumar, P. W. 2, and told her of her sufferings. The appellant and his mother went to the hospital and tried their best to take her back to the house, but were not allowed to do so by the lady Doctor. Social workers got interested in the matter and informed the brother of Bimla Devi, one Madan Mohan, who came down to Ludhiana and, after learning all facts, sent information to the Police Station by letter on June 16, 1956. In his letter he said: "My sister Bimla Devi Sharma is lying in death bed. Her condition is very serious. I am told by her that deliberate attempt has been made by her husband, mother in law and brother in law and sister in law. I was also told that she was kept locked in a room for a long time and was beaten by all the above and was starved. I therefore request that a case may be registered and her statement be recorded, immediately. " The same day, at 9 15 p.m., Dr. Miss Dalbir Dhillon sent a note to the police saying 'My patient Bimla Devi is actually ill. She may collapse any moment '. Shri Sehgal, Magistrate, P.W. 9, recorded her statement that night and stated in his note: "Blood transfusion is taking place through the right forearm and consequently the right hand of the patient is not free. It is not possible to get the thumb impression of the right hand thumb of the patient. That is why I have got her left hand thumb impression. " The impression formed by the learned Judge of the High Court on seeing the photographs taken of Bimla Devi a few days later, is stated thus in the judgment: "The impression I formed on looking at the two 257 photographs of Bimla was that at that time she appeared to be suffering from extreme emaciation. Her cheeks appeared to be hollow. The projecting bones of her body with little flesh on them made her appearance skeletal. The countenance seemed ' to be cadaverous." After considering the evidence of Bimla Devi and the Doctors, the learned Judge came to the conclusion: "So far as the basic allegations are concerned, which formed the gravamen of the offence, the veracity of her statement cannot be doubted. After a careful scrutiny of her statement, I find her allegations as to starvation, maltreatment, etc., true. The exaggerations and omissions to which my attention was drawn in her statement are inconsequential. " After considering the entire evidence on record, the learned Judge said: "After having given anxious thought and careful consideration to the facts and circumstances as emerge from the lengthy evidence on the record, I cannot accept the argument of the learned counsel for the accused, that the condition of acute emacia tion in which Bimla Devi was found on 5th of June, 1956, was not due to any calculated starvation but it was on account of prolonged illness, the nature of which was not known to the accused till Dr. Gulati had expressed his opinion that she was suffering from tuberculosis." He further stated: "The story of Bimla Devi as to how she was illtreated, and how, her end was attempted to be brought about or precipitated, is convincing, despite the novelty of the method in which the object was sought to be achieved. The conduct of the accused and of his mother on 5th of June, 1956, when soon after Bimla Devi 's admission in the hospital they insisted on taking her back home, is significant and almost tell tale. It was not for better treatment or for any treatment that they wanted to take her back home. Their real object in doing so could be no other than to accelerate her end. " 258 The appellant was acquitted of the offence under s.342, Indian Penal Code, by the Additional Sessions Judge, who gave him the benefit of doubt, though he had come to the conclusion that Bimla Devi 's movements were restricted to a certain extent. The learned Judge of the High Court considered this question and came to a different conclusion. Having come to these findings, the learned Judge considered the question whether on these facts an offence under section 307, Indian Penal Code, had been established or not. He held it proved. Mr. Sethi, learned counsel for the appellant, has challenged the correctness of this view in law. He concedes that it is only when a person is helpless and is unable to look after himself that the person having control over him is legally bound to look after his requirements and to see that he is adequately fed. Such persons, according to him, are infants, old people and lunatics. He contends that it is no part of a husband 's duty to spoon feed his wife,, his duty being simply to provide funds and food. In view of the finding of the Court below about Bimla Devi 's being confined and being deprived of regular food in pursuance of a scheme of regularly starving her in order to accelerate her end, the responsibility of the appellant for the condition to which she was brought up to the 5th of June, 1956, is clear. The findings really go against any suggestion that the appellant had actually provided food and funds for his wife Bimla Devi. The next contention for the appellant is that the ingredients of an offence under section 307 are materially different from the ingredients of an offence under section 511, Indian Penal Code. The difference is that for an act to amount to the commission of the offence of attempting to commit an offence, it need not be the last act and can be the first act towards the commission of the offence, while for an offence under section 307, it is the last act which, if effective to cause death, would constitute the offence of an attempt to commit murder. The contention really is that even if Bimla Devi had been deprived of food for a certain period, the act of so depriving her does not come under section 307, 250 as that act could not, by itself, have caused her death, it being necessary for the period of starvation to continue for a longer period to cause death. We do not agree with this contention. Section 307 of the Indian Penal Code reads: "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. " Section 308 reads: "Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both." Both the sections are expressed in similar language. If section 307 is to be interpreted as urged for the appellant, section 308 too should be interpreted that way. What ' ever may be said with respect to section 307, being exhaustive or covering all the cases of attempts to commit murder and section 511 not applying to any case of attempt to commit murder on account of its being applicable only to offences punishable with imprisonment for life or imprisonment, the same cannot be said with respect to the offence of attempt to commit culpable homicide punishable under section 308. An attempt to commit culpable homicide is punishable with imprisonment for a certain period and therefore but for its being expressly made an offence under section 308, it would have 260 fallen under section 511 which applies to all attempts to commit offences punishable with imprisonment where no express provisions are made by the Code for the punishment of that attempt. It should follow that the ingredients of an offence of attempt to commit culpable homicide not amounting to murder should be the same as the ingredients of an offence of attempt to commit that offence under section 511. We have held this day in Abhayanand Mishra vs The State of Bihar (1) that a person commits the offence of attempting to commit a particular offence, when he intends to commit that particular offence and, having made preparations and with the intention to commit that offence does an act towards its commission and that such an act need not be the penultimate act towards the commission of that offence, but must be an act during the course of committing such offence. It follows therefore that a person commits an offence under section 308 when he has an intention to commit culpable homicide not amounting to murder and in pursuance of that intention does an act towards the commission of that offence whether that act be the penultimate act or not. On a parity of reasoning, a person commits an offence under section 307 when he has an intention to commit murder and, in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. It is to be clearly understood, however, that the intention to commit the offence of murder means that the person concerned has the intention to do certain act with the necessary intention or knowledge mentioned in section 300. The intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence. The expression 'whoever attempts to commit an offence ' in section 511, can only mean 'whoever intends to do a certain act with the intent or knowledge necessary for the commission of that offence '. The same is meant by the expression 'whoever does an act with such intention or knowledge and under such circumstances that if he, by that act, caused death, he would be guilty of murder ' in section 307. This simply means that the act must be done with the (1) ; 261 intent or knowledge requisite for the commission of the offence of murder. The expression by that act ' does not mean that the immediate effect of the act committed must be death. Such a result must be the result of that act whether immediately or after a lapse of time. The word 'act ' again, does not mean only any particular, specific, instantaneous act of a person, but denotes, according to section 33 of the Code, as well, a series of acts. The course of conduct adopted by the appellant in regularly starving Bimla Devi comprised a series of acts and therefore acts falling short of completing the series, and would therefore come within the purview of section 307 of the Code. Learned counsel for the appellant has referred us to certain cases in this connection. We now discuss them. The first is Queen Empress vs Nidha (1). Nidha, who had been absconding, noticing certain chowkidars arrive, brought up a sort of a blunderbuss he was carrying, to the hip and pulled the trigger. The cap exploded, but the charge did not go off. He was convicted by the Sessions Judge under sections 299 and 300 read with section 511, and not under section 307, Indian Penal Code, as the learned Judge relied on a Bombay Case Regina vs Francis Cassidy (1) in which it was held that in order to constitute the offence of attempt to murder, under section 307, the act committed by the person must be an act capable of causing, in the natural and ordinary course of events, death. Straight, J., both distinguished that case and did not agree with certain views expressed therein. He expressed his view thus, at p. 43: "It seems to me that if a person who has an evil intent does an act which. is the last possible act that he could do towards the accomplishment of a particular crime that he has in his mind, he is not entitled to pray in his aid an obstacle intervening not known to himself. If he did all that he could (1) All. (2) (1867) Bom. H.C. Reps. IV, P. 17 (Crown Cases). 34 262 do and completed the only remaining proximate act in his power, I do not think he can escape criminal responsibility, and this because his own set volition and purpose having been given effect to their full extent, a fact unknown to him and at variance with his own belief, intervened to prevent the consequences of that act which he expected to ensue, ensuing. " Straight, J., gave an example earlier which itself does not seem to fit in with the view expressed by him later. He said: "No one would suggest that if A intending to fire the stack of B, goes into a grocery shop and buys a box of matches, that he has committed the offence of attempting to fire the stack of B. But if he, having that intent, and having bought the box of matches, goes to the stack of B and lights the match, but it is put out by a puff of wind, and he is so prevented and interfered with, that would establish in my opinion an attempt." The last act, for the person to set fire to the stack, would have been his applying a lighted match to the stack. Without, doing this act, he could not have set fire and, before he could do this act, the lighted match is supposed to have been put out by a puff of wind. Illustration (d) to section 307, itself shows the incorrectness of this view. The illustration is: "A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A 's keeping; A has not yet committed the offence in this section. A places the food on Z 's table or delivers it to Z 's servants to place it on Z 's table. A has committed the offence defined in this section. " A 's last act, contemplated in this illustration, is not an act which must result in the murder of Z. The food is to be taken by Z. It is to be served to him. It may not have been possible for A to serve the food himself to Z, but the fact remains that A 's act in merely delivering the food to the servant is fairly remote to the food being served and being taken by Z. 263 This expression of opinion by Straight, J., was not really with reference to the offence under section 307, but was with reference to attempts to commit any particular offence and was stated, not to emphasize the necessity of committing the last act for the commission of the offence, but in connection with the culprit taking advantage of an involuntary act thwarting the completion of his design by making it impossible for the offence being committed. Straight, J., himself said earlier: "For the purpose of constituting an attempt under section 307, Indian Penal Code, there are two ingredients required, first, an evil intent or knowledge, and secondly, an act done." In Emperor vs Vasudeo Balwant Gogte (1) a person fired several shots at another. No injury was in fact occasioned due to certain obstruction. The culprit was convicted of an offence under section 307. Beaumont, C. J.,said at p. 438: "I think that what section 307 really means is that the accused must do an act with such a guilty intention and knowledge and in such circumstances that but for some intervening fact the act would have amounted to murder in the normal course of events". This is correct. In the present case, the intervening fact which thwarted the attempt of the appellant to commit the murder of Bimla Devi was her happening to escape from the house and succeeding in reaching the hospital and thereafter securing good medical treatment. It may, however, be mentioned that in cases of attempt to commit murder by fire arm, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he fires, he does not do any act towards the commission of the offence and once he fires, and something happens to prevent the shot taking effect, the offence under section 307 is made out. Expressions, in such cases, indicate that one commits an attempt to murder only when one has committed the last act (1) Bom 434. 264 necessary to commit murder. Such expressions, however, are not to be taken as precise exposition of the law, though the statements in the context of the cases are correct. In Mi Pu vs Emperor (1) a person who had put poison in the food was convicted of an offence under section 328 read with section 511, Indian Penal Code, because there was no evidence about the quantity of poison found and the probable effects of the quantity mixed in the food. It was therefore held that the accused cannot be said to have intended to cause more than hurt. The case is therefore of no bearing on the question under determination. In Jeetmal vs State (2) it was held that an act under section 307, must be one which, by itself, must be ordinarily capable of causing death in the natural ordinary course of events. This is what was actually held in Cassidy 's Case (3) and was not approved in Niddha 's Case (4) or in Gogte 's Case (4). We may now refer to Rex vs White (6). In that case, the accused, who was indicted for the murder of his mother, was convicted of attempt to murder her. It was held that the accused had put two grains of cyanide of potassium in the wine glass with the intent to murder her. It was, however, argued that there was no attempt at murder because 'the act of which he was guilty, namely, the putting the poison in the wine glass, war, a completed act and could not be and was not intended by the appellant to have the effect of killing her at once; it could not kill unless it were followed by other acts which he might never have done '. This contention was repelled and it was said: "There seems no doubt that the learned judge in effect did tell the jury that if this was a case of slow poisoning the appellant would be guilty of the attempt to murder. We are of opinion that this direction was right, and that the completion or attempted completion of one of a series of acts intended by a man to result in killing is an attempt (1) (2) A.I.R. 1950 Madhya Bharat 21. (3) (1867) Bom. H. C. Reps. IV, p. 17 (Crown Cases). (4) All. (5) (1032) I.L. R. (6) 265 to murder even although this completed act would not, unless followed by the other acts, result in killing. It might be the beginning of the attempt, but would nonetheless be an attempt". This supports our view. We therefore hold that the conviction of the appellant under section 307, Indian Penal Code, is correct and accordingly dismiss this appeal. Appeal dismissed.

B was married to the appellant in October, 1951, but their relations got strained by 1953. She was ill treated and her health deteriorated due to maltreatment and under nourish ment. In 1956 she was deliberately starved and not allowed to leave the house in which they were living and only sometimes a morsel or so used to be thrown to her as alms are given to beggars. On June 5,1956, she managed to escape from the house and went to the Civil Hospital at Ludhiana. Her brother came down to Ludhiana on learning of the facts and made a complaint to the police. The doctor who attended on B sent a note to the police saying that she was seriously ill and might collapse any moment. The appellant was prosecuted for the offence of attempting to murder B under section 307 Of the Indian Penal Code. The trial Court acquitted him but, on appeal, the High Court came to a finding, on the evidence, that the object of the appellant was to confine B and deprive her of regular food in pursuance of a scheme of regular starvation in order to accelerate her end, and convicted him under section 307 Of the Indian Penal Code. On behalf of the appellant it was contended, inter alia, that whereas under section 511 Of the Code for an Act to amount to the offence of attempting to commit an offence it need not be the last act and can be the first act towards the commission of the offence, under section 307 it is the last act which, if effective to cause death, would constitute the offence of an attempt to commit murder, and that even if B had been deprived of food for a certain period, the act of so depriving her did not come under section 307 as that act could not, by itself have caused her death, it being necessary for the period of starvation to continue for a longer period to cause death. Held, that a person commits an offence under section 307 Of the Indian Penal Code when he has an intention to commit murder and in pursuance of that intention does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. Abhayanand Mishra vs The State of Bihar, [1962] 2 S.C.R. 241, followed. Rex vs White, , relied on. Queen vs Nidha, All. 38 and Emperor vs Vasudeo Balwant Gogte, BOM. 434, considered, 255 Jeetmal vs State, A.I.R. 1950 Madhya Bharat 21, disapproved. The word 'act ' in section 307 did not mean only a particular act of a person, but denoted, according to section 33 Of the Code, as well, a series of acts. In the present case the course of conduct adopted by the appellant in regularly starving his wife B, comprised a series of acts which though they fell short of completing the series sufficient to kill her, came within the purview Of section 307 Of the Indian Penal Code. The High Court was, therefore, right in convicting the appellant under that section.

The appellant joined the Indian Civil Service in 1939 and was posted in the province of Madras. After the transfer of power under the Indian independence Act on August 15,1947, he was 432 transferred to the Punjab and later when the Indian Administrative Service was constituted he became its member. On July 18, 1959, he was suspended by the Governor of the State of Punjab under r. 7(3) of the Indian Services (Discipline and Appeal) Rules, 1955, on the ground that a criminal case was pending against him. He challenged the order of suspension by a writ petition in the Punjab High Court as being violative of the guarantee contained in article 314 of the Constitution and contrary to r. 49 of the Civil Services (Classification, Control and Appeal) Rules which provided only for suspension as a penalty. His case was that there was no provision immediately before January 26, 1950, that provided for suspension otherwise than as penalty. The High Court dismissed the petition. Held: (per Gajendragadkar, Subba Rao, Wanchoo and Shah, JJ). The general law of master and servant and section 247 of the Government of India Act, r. 53 of the Fundamental Rules and rr. 49, 56 of the Civil Services (Classification, Control and Appeal) Rules, read together clearly show that members of the former Secretary of State 's Services were on August 14, 1947, liable to suspension either as an interim measure or as a punishment. Interim suspension could be imposed either by the Secretary of State as the appointing authority or the Governor General or the Governor, as the case might be, as the statutory authority. Management of Hotel Imperial, New Delhi v Hotel Workers ' Union, [19601 1 S.C.R. 476 and T. Cajee vs U. Jormanik Siem, ; , referred to. It was not therefore correct to say that there could be no suspension except by way of punishment under r.49 of the Appeal Rules before 1947. In a case of interim suspension before 1947 there was however no right of appeal. Article 314 of the Constitution, properly construed, affords such protection to the members of the Secretary of State 's Services as they were entitled to immediately before the commencement of the Constitution. There can be no doubt that suspension pending a departmental enquiry or a criminal proceeding falls within the word 'disciplinary matters ' used in that Article. It was not correct to say that as independence was conferred on India and the Services automatically terminated, there was in law reappointment of all the former Secretary of State 's Services, and those serving in a province must be deemed to have been reappointed by the Governor and that, consequently, the Governor as the appointing authority had the power to order suspension. Article 7(1) of India (Provisional Constitution) Order, 1947, G.G.O. 14, read with section 10 of the Independence Act, 1947, in the light of other relevant circumstances shows that the final decision whether or not the former members of the Secretary of State 's Services should continue was of the Government of India and that Government, therefore, must be deemed to have appointed 433 them to posts either under itself or in the Provinces. Section 241(b) of the Government of India Act, as it then stood, and s.240(2) of the said Act, as amended by G.G.O. 14, could not alter this position. State of Madras vs K.M. Rajagopalan, ; , referred to. On the eve of the commencement of the Constitution i.e. January 25, 1950, a former member of the Secretary of State 's Services could be suspended under the general law by the Government of India alone as the appointing authority as an interim measure pending departmental enquiry or criminal proceeding and by no other authority. He was liable to suspension as punishment under section 49 of the Civil Services (Classification, Control and Appeal) Rules. Rule 53 of the Fundamental Rules governed pay during interim suspension or suspension as penalty. While there was no appeal from an order of interim suspension, r. 56 of the Appeal Rules provided for an appeal from an order of suspension as penalty. It was this position which article 314 of the Constitution sought to protect. Rule 7 of the All India Services (Discipline and Appeal) Rules, 1955, violated the guarantee contained in article 314 in respect to interim suspension and was to that extent ultra vires in so far as it applied to the members of the Indian Administrative Services who fell within cls. (a) and (b) of r.3 of the Indian Administrative Services (Recruitment) Rules, 1954. The Governor 's Order under r.7(3) directing interim suspension of the appellant must, therefore, be set aside. The proper procedure would be to approach Government of India for such interim suspension. The Accountant General, Bihar vs N. Bakshi, [1962] Supp. 1 S.C.R. 505, referred to. Per Dayal, J. In view of the provisions of section 241 of the Government of India Act as modified by the India (Provisional Constitution) Order, 1947, G.G.O. 14 of 1947, members of the Secretary of State 's Services who were holding posts under a provincial Government immediately before the appointed day, i.e., August 15, 1947, and continued in service thereafter must be deemed in view of article 7(1) of the said Order to have been appointed to the corresponding posts by the appropriate authority, the Governor of the Province. That article generally applied to all appointments on and after the appointed day. The appellant cannot be deemed to have been appointed by the Governor General or the Government of India. It was not intended that merely because that Order was made by the Governor General, the deemed appointments must be taken to have been made by him. It would be anomalous to hold that the Governor, who was in administrative control of the services, could not pass an interim order of suspension against a person appointed by the Secretary of State, though he could impose a penalty of suspension under 1/SCI/64 28 434 rr. 49 and 52 of the Civil Services (Classification, Control and Appeal) Rules, which continued in force till the All India Services (Discipline and Appeal) Rules came into force in 1955. The Indian Civil Services ceased to exist from August 15,1947, and the services of its members automatically terminated on August 14, 1947. The appellant 's service, therefore, came to an end on August 14, 1947, but since he was serving under the Madras Government immediately before August 15, 1947, and continued to do so thereafter he must be deemed to have been appointed by the Governor of Madras to the post he was holding on the appointed day. Rule 7 of the All India Services (Discipline and Appeal) Rules, 1955, does not violate the provision of article 314 of the Constitution, nor can the absence of a right of appeal against interim suspension do so since the appellant had none before the Constitution. His suspension by the Governor of Punjab under r.7(3) was, therefore valid. State of Madras vs K.M. Rajagopalan, ; , considered.

N owned agricultural lands in Bahawalpur State now forming part of Pakistan and also owned some property in Punjab in India. He died in June 1947 while on a visit to India in the normal course of business, leaving behind three sons, the respondents in the appeal. On the partition of India, the land in Pakistan originally owned by N and after his death by his sons, had to be abandoned. After migrating to India, the three respondents filed separate claims as displaced persons and were allotted an area of land in Punjab. Thereafter a complaint was filed before the Managing Officer that these respondents had received double allotments. The Managing Officer, held this allegation was not substantiated but came to the conclusion that N, although he had died before the partition, must be treated as a displaced land holder for the purpose of allotment of land as his name continued to be shown in the Jamabandi as the owner of the abandoned land in Pakistan. In consequence of this finding a large portion of the land allotted to the three respondents was cancelled by an order of the Managing Officer dated September 18, 1961. Appeals made by the respondents to the Assistant Settlement Commissioner as well as revision petitions before the Chief Settlement Commissioner Punjab, were dismissed. In dismissing the revision petitions, the Chief Settlement Commissioner relied on para. 17 of "Tarlok Singh 's Land Resettlement Manual" 1952 edition Page 180, to the effect that "Even where a displaced land holder in whose name the land stands in the records received from West Punjab has died, the allotment is made in the name of the deceased". He therefore upheld the view 4 at the land could only be allotted in the name of N. The respondents then filed a writ petition against the orders of the Chief Settlement Commissioner which was allowed. On appeal to this Court, HELD:Dismissing the appeal, The definition of a "displaced person" in para 2(e) of the Notification of July 8, 1949, issued by the Custodian in accordance with provisions of the East Punjab Evacuees (Administration of Property) Act 1947, and the Rules made thereunder, or of a "Refugee" in Section 2(d) of the East Punjab Refugees (Registration of Land Claims) Act 12 of 656 1948, show that these expressions have been used in the relevant enactments with reference to a person who has migrated to India as a result of disturbances or fear of disturbances or the partition of the country. Therefore if a person had died before the disturbances took place or he had never migrated to India as a result of the disturbances and he died before such migration, he could not come within the meaning of the expression "displaced person" or the word "refugee" under the relevant statutory enactments. N died in June, 1947, long before the partition of the country and he did not abandon or was not made to abandon his land in Bahawalpur on account of the civil disturbances or the fear of such disturbances or the partition of the country. [660 A D] There was no force in the contention that even though N never became a refugee or a displaced land holder, the allotment had to be made in his name because he was shown in the revenue records received from West Punjab as the owner of the land and there had been no mutation of the names of the respondents in the revenue records. The rule in para 17 of "Tarlok Singh 's Manual" consistently with the statutory enactments, would be applicable only to such persons who were land holders 'it the time of their becoming displaced persons or refugees and who died afterwards before allotment could be made in their favour. It does not apply to a person like N who was not a displaced land holder at the time of his death. [661 D F]

The petitioner was serving as an officiating Teleprinter Supervisor at Jaipur when the employees of the Posts and Telegraphs Department went on strike from the midnight of July 11, 1960, throughout India and there was a similar strike at Jaipur. The petitioner 's case was that he was on duty that day from 12 noon to 8 p.m. and after his duty was over, he did not go home but went to the dormitory where he fell asleep as he was tired. On hearing some noise he woke up at 11 30 p.m. and wanted to go home but was arrested by the police under the Essential Services Maintenance Ordinance, No. 1 of 1960. The criminal charge was however withdrawn. On July 21, 1960, a chargesheet was served on the petitioner in the following terms: "That Shri Radhey Shyam Sharma I C/S Telegraphist, CTO Jaipur committed gross misconduct in that on the midnight of the 11th July, 1960, he took part in a demonstration in furtherance of the strike of the P. & T. Employees in violation of the orders dated 8 7 1960 issued by the Government of India under the 'Essential Services Maintenance Ordinance, 1960 (1 of 1960) ' prohibiting strikes in any Postal, telegraph or telephone service". The enquiry officer found him guilty of the charge and ordered that his pay should be reduced in the time scale by three stage,% for a period of two years and on restoration the period of reduction was not to operate to postpone his future increments. 0n appeal, the Director General considered the whole matter on merits and rejected the appeal. In this Court it was urged that the punishment imposed upon the petitioner was violative of his fundamental rights under articles 19(1)(a) and (b), reliance being placed on two cases of this court in Kameshwar Prasad vs State of Bihar and O. K. Ghosh vs E. X. Joseph; that sections 3, 4 and 5 of the Ordinance were ultra vires, as they contravened article 19(1.)(a) and (b) and that in any case there was no evidence on which it could ' be found that the charge against him had been proved. Held: The provisions of the Ordinance in sections 3, 4 and 5 did not violate the fundamental rights enshrined in article 19(1)(a) and (b). A perusal of article 19(1) shows that there is no fundamental right to strike, and all that the ordinance provided was with respect to any illegal strike as provided in the Ordinance. There was no provision in the Ordinance which in any way restricted those fundamental rights. It was not in dispute that Parliament had the competence to make a law in the terms of the Ordinance and therefore the President had also the power to promulgate, such an Ordinance. 404 The competence of the legislature therefore being not in dispute it cannot be held that the Ordinance violated the fundamental rights guaranteed under article 19(1)(a) and (b). All India Bank Employees Association vs National Industrial Tribunal, ; , referred to. The two cases relied on by the petitioner have no relevance in connection with the charge in the present case. The punishment given to the petitioner cannot therefore be set aside on the ground that the charge was in violation of the fundamental rights guaranteed under article 19(1)(a) and (b). Kameshwar Prasad vs State of Bihar, [1962] Supp. 3 S.C.R. 369 and O. K. Ghosh vs E. X. Joseph, [1963] Supp. 1 S.C.R. 789, held inapplicable. If on the undisputed facts the authorities came to the con clusion that the petitioner acted in furtherance of the strike 'Which was to commence half an hour later and was thus guilty of gross misconduct, it could not be said that there was no evidence on which the authorities concerned could find the charge framed against the petititoner proved.

In response to a show cause notice dated March 15, 1957, under section 28(1)(c) of the Income Tax Act, before imposing a penalty for deliberate concealment of its income, the appellant, through its authorised representative, voluntarily agreed to a slum of Rs. 15,000/ being treated as income of Hindu Undivided Family. The Income Tax officer, by his order dated March 20,1958, added a sum of Rs. 68,550/ to the income of the appellant and imposed on it a penalty of Rs. 26,000/ which on appeal was reduced to Rs. 15,000/ . Meanwhile, on March 19, 1957, the appellant filed an application under section 25A of the Act for an order recording partition of joint family property in definite portions from June 22, 1956, claiming that date to be the date of partition. The Income Tax officer, after due enquiries, accepted the disruption of the Hindu Undivided Family as claimed by his order dated March 26, 1962. This led the appellant to contend that, in view of ' the orders dated March 26, 1962, of the Income Tax officer, the imposition of the penalty by him on March 20, 1958 was bad in law and could not be sustained. The Tribunal uphold the contentions of the appellant resulting in a reference under section 66(1) of the Act to the High Court of Allahabad (Lucknow Bench), which reversed the decision or the Tribunal. However, the High Court granted a certificate of fitness for appeal to this Court. Dismissing the appeals the Court, ^ HELD: Sub section (3) of section 25A of the Income Tax Act embodies a legal fiction according to which a Hindu family which has been previously assessed as "undivided" is to be continued to be treated as "undivided" till the passing of the order under sub section (1) of section 25A. So long as no order under section 25(A)(1) 1 of the Act is recorded, the jurisdiction of the Income Tax officer to continue to assess as undivided despite a partition under personal law, a Hindu family which has hitherto been assessed in that status, remain unaffected. [508G H] Additional Income Tax Officer, Quddapah vs A. Thimmayya vs Commissioner of Income Tax, Gujrat , applied. Commissioner of Income Tax vs Sanchar Sah Bhim Sah section A. Raju Chattiar & Ors. vs Collector of Madras & Anr. ; Mahankali Subba Rao Mahankali Nageswara Rao & Anr. v, Commissioner of income Tax. Hyderabad and Commissioner of Income Tax, Punjab vs Mothu Ram Prem Chand , not applicable

The respondent "OP" inflicted five stab wounds on the appellant "S" on 19 4 1973 but the appellant survived thanks to prompt medical attention and are immediate operation. The trial court convicted "OP" under section 307 I.P.C. by its judgment dated 26 2 74 and sentenced him to 10 years rigorous imprisonment and also to a fine of Rs. 200/ The accused "OP" filed a Criminal Appeal No. 442/74) in the Punjab High Court on the ground that he was entitled to set off u/s 428 of the Crl. P.C. 1973 (Act 2 of 1974), the period of his detention as an under trial prisoner against the period of imprisonment imposed upon him. The appellant "S" also filed a Criminal Revision No. 606/ 74 74 in the High Court for enhancement of the sentence against the accused. Since there was no opposition from the State to the plea in the criminal appeal, the High Court accepting the appeal, reduced the sentence of the term of imprisonment to that already undergone by him. Against the said appeal, there was no further appeal either by the State or by "S" and therefore the orders became final. The criminal revision filed by "S" was however dismissed separately by the High Court for the "reasons recorded in Criminal Appeal No. 442/74". Unable to obtain leave under article 134(1)(c) of the Constitution, "S" obtained special leave after notice to the accused "OP" and the State. Dismissing the appeal, the Court ^ HELD: (1) It is clear from section 428 of the Criminal Procedure Code, 1973 (Act 2 of 1974) itself that even though the conviction was prior to the enforcement of the code of criminal procedure benefit of Section 428 would be available to such a conviction. Indeed section 428 does not contemplate any challenge to a conviction or a sentence. It confers a benefit on a convict reducing his liability to undergo imprisonment out of the sentence imposed for the period which he had already served as an under trial prisoner. [301H, 302A] (2) The procedure to invoke Section 428 Criminal Procedure Code could be a Miscellaneous application by the accused to the court at any time while the sentence runs for passing appropriate order reducing the term of imprisonment which is the mandate of the section. [302A] (3) In the instant case, in the absence of an appeal against the judgment of the High Court in Criminal Appeal No. 442/74 either by the State or by the injured, that judgment has become final. The scope of criminal revision before the High Court was whether the sentence of ten years should be further enhanced, but that sentence itself disappeared by virtue of the judgment of the High Court in the Criminal Appeal. The criminal revision therefore became infructuous and the Supreme Court can do nothing about it while the judgment of the High Court remains operative. 1302D, E P] Obiter: The order of the High Court was clearly unsustainable even in terms of section 428 Criminal Procedure Code as the only set off which was 300 urged for under the section and which was admissible, was a period of about nine months of pretrial detention. [The Court disapproved of such a grossly lenient sentence imposed by the High Court and deprecated that the State ignored to take notice of such a grossly lenient sentence and for not preferring an appeal to the Court.]

The respondent admitted the execution of two Hundis in suit which were tendered and marked as exhibits but denied consideration and raised the plea that the hundis exhibited were inadmissible in evidence as at the time the suit was filed in 1949 they had not been stamped according to the Stamp Law. When the hundis were executed in December, 1946, the Marwar Stamp Act of 1914 was in force and sections 9 and 11 of that Act authorised the court to realise the full stamp duty and penalty in case of unstamped instruments produced in evidence, whereupon the documents were admissible in evidence. The High Court pointed out that after coming into force of the Marwar Stamp Act, 1947, (Similar to Indian Stamp Act) which had amended the 1914 Act, the hundis in question could not be admitted in evidence in view of the provision of section 35 proviso (a) of the Marwar Stamp Act, 1947, even on payment of duty and penalty and the appellant could not take advantage of section 36 of the 1947 Stamp Act, because 'the admission of the two hundis was a pure mistake as the Trial Court had lost sight of the 1947 Stamp Act and the appeal Court could go behind the orders of the Trial Court and correct the mistake made by, thAt Court. Held, that once the Court, rightly or Wrongly decided to 43 334 admit the document in evidence, so far as the parties were concerned, the matter was closed. The court had to judicially determine the matter as soon as the document was tendered in evidence and before it was marked as an exhibit in the case, and once the document had been marked as an exhibit and the trial had proceeded on that footing section 36 of the Marwar Stamp Act, 1947, came into operation, and, thereafter, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order was not one of those judicial orders which are liable to be revised or reviewed by the same court or a court of superior jurisdiction. Ratan Lal vs Dau Das, I.L.R. , disapproved.

Respondent was arrested by a police constable on the ground that he was smelling of liquor. The doctor who examined him gave evidence at the trial that though the respondent had consumed alcoholic substance he was not under the influence of liquor. In cross examination the doctor stated that consumption of Neem would produce a blood concentration of 0. 146%. The respondent in examination under section 342 of the Code of Criminal Procedure stated that he had not consumed prohibited alcohol but that he had consumed six ounces of Neem. He was acquitted by the Magistrate. The appellant appealed to the High Court. The main ground of appeal was that the mere statement of the respondent that he had consumed 6 ozs. of Neem was not sufficient to rebut the presumption under sub section (2) of section 66 of the Bombay prohibition Act, 1949, as amended by the Bombay Prohibition (Extension and amendment) Act, 1959. The High Court dismissed the appeal in limine. Thereupon the appellant appealed to the Supreme Court by way of Special Leave on the same ground as was raised before the High Court. Held, that the statement of the accused recorded under section 342 of the Code of Criminal Procedure can be taken into consideration in judging the innocence or guilt of a person. If the explanation given by the accused in his statement is acceptable to the court it must be held that the accused has discharged the burden under section 66 (2) of the Bombay Prohibi tion Act. O. section D. Swamy vs State, 1, distinguished.

minal Appeal No. 226 of 1959. Appeal by special leave from the judgment and order dated September 23, 1958, of the Patna High Court in Criminal Appeal No. 87 of 1957. H. J. Umrigar, P. Rana and M. K. Ramamurai, for the appellant. 243 H. R. Khanna and T. M. Sen, for the respondent. April 24. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is against the order of the High Court at Patna dismissing the appellant 's appeal against his conviction under section 420, read with section 511, 'of the Indian Penal Code. The appellant applied to the Patna University for permission to appear at the 1954 M. A. Examination in English as a private candidate, representing that he was a graduate having obtained his B.A. Degree in 1951 and that he had been teaching in a certain school. In support of his application, he attached certain certificates purporting to be from the Headmaster of the School, and the Inspector of Schools. The University authorities accepted the appellant 's statements and gave permission and wrote to him asking for the remission of the fees and two copies of his photograph. The appellant furnished these and on April 9, 1954, proper admission card for him was despatched to the Headmaster of the School. Information reached the University about the appellant 's being not a graduate and being not a teacher. Inquiries were made and it was found that the certificates attached to the application were forged, that the appellant was not a graduate and was not a teacher and that in fact he had been de barred from taking any University examination for a certain number of years on account of his having committed corrupt practice at a University examination. In consequence, the matter was reported to the police which, on investigation, prosecuted the appellant. The appellant was acquitted of the charge of forging those certificates, but was convicted of the offence of attempting to cheat inasmuch as he, by false representations, deceived the University and induced the authorities to issue the admission card, which, if the fraud had not been detected, would have been ultimately delivered to the appellant. Learned counsel for the appellant raised two contentions. The first is that the facts found did not amount 244 to the appellant 's committing an attempt to cheat the University but amounted just to his making preparations to cheat the University. The second is that even if the appellant had obtained the admission card and appeared at the M. A. Examination, no offence of cheating under section 420, Indian Penal Code, would have been committed as the University, would not have suffered any harm to its reputation. The idea of the University suffering in reputation is too remote. The offence of cheating is defined in section 415, Indian Penal Code, which reads: "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omis sion causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat '. Explanation. A dishonest concealment of facts is a deception within the meaning of this section. " The appellant would therefore have cheated the University if he had (i) deceived the University; (ii) fraudulently or dishonestly induced the University to deliver any property to him; or (iii) had intentionally induced the University to permit him to sit at the M.A. Examination which it would not have done if it was not so deceived and the giving of such permission by the University caused or was likely to cause damage or harm to the University in reputation. There is no doubt that the appellant, by making false statements about his being a graduate and a teacher, in the applications he had submitted to the University, did deceive the University and that his intention was to make the University give him permission and deliver to him the admission card which would have enabled him to sit for the M.A. Examination. This card is 'Property '. The appellant would therefore have committed the offence of 'cheating ' if the admission card had not been withdrawn due to certain information reaching the University. 245 We do not accept the contention for the appellant that the admission card has no pecuniary value and is therefore not 'property '. The admission card as such has no pecuniary value, but it has immense value to the candidate for the examination. Without it he cannot secure admission to the examination hall and consequently cannot appear at the Examination. In Queen Empress vs Appasami (1) it was held that the ticket entitling the accused to enter the examination room and be there examined for the Matriculation test of the University was 'property '. In Queen Empress vs Soshi Bhushan (2) it was held that the term 'property ' in section 463, Indian Penal Code, included the written certificate to the effect that the accused had attended, during a certain period, a course of law lectures and had paid up his fees. We need not therefore consider the alternative case regarding the possible commission of the offence of cheating by the appellant, by his inducing the University to permit him to sit for the examination, which it would not have done if it had known the true facts and the appellant causing damage to its reputation due to its permitting him to sit for the examination. We need not also therefore consider the further question urged for the appellant that the question of the University suffering in its reputation is not immediately connected with the accused 's conduct in obtaining the necessary permission. Another contention for the appellant is that the facts proved do not go beyond the stage of reparation for the commission of the offence of `cheating ' and do not make out the offence of attempting to cheat. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations (1) Mad. 151. (2) All. 210, 246 are complete and the culpit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is clear from the general expression 'attempt to commit an offence ' and is exactly what the provisions of section 511, Indian Penal Code, require. The relevant portion of section 511 is: "Whoever attempts to commit an offence punish able by this Code. . or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished. . " These provisions require that it is only when one, firstly, attempts to commit an offence and, secondly, in such attempt, does any act towards the commission of the offence, that he is punishable for that attempt to commit the offence. It follows, therefore, that the act which would make the culprit 's attempt to commit an offence punishable, must be an act which, by itself, or in combination with other acts, leads to the commission of the offence. The first step in the commission of the offence of cheating, therefore, must be an act which would lead to the deception of the person sought to be cheated. The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence, as contemplated by section 511. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence. It is to be borne in mind that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. The cases referred to make this clear. 247 We may refer to some decided cases on the construction of section 511, Indian Penal Code. In The Queen vs Ramsarun Chowbey (1) it was said at p. 47: "To constitute then the offence of attempt under this section (section 511), there must be an act done with the intention of committing an offence, and for the purpose of committing that offence, and it must be done in attempting the commission of the offence. Two illustrations of the offence of attempt as defined in this section are given in the Code; both are illustrations of cases in which the offence has been committed. In each we find an act done with the intent of committing an offence and immediately enabling the commission of the offence, although it was not an act which constituted a part of the offence,, and in each we find the intention of the person making the attempt was frustrated by circumstances independent of his own volition. From the illustrations it may be inferred that the Legislature did not mean that the act done must be itself an ingredient (so to say) of the offence attempted. . The learned Judge said, further, at p. 49: "I regard that term (attempt) as here employed as indicating the actual taking of those steps which lead immediately to the commission of the offence, although nothing be done, or omitted, which of itself is a necessary constituent of the offence attempted". We do not agree that the 'act towards the commission of such offence ' must be 'an act which leads immediately to the commission of the offence '. The purpose of the illustration is not to indicate such a construction of the section, but to point out that the culprit has done all that be necessary for the commission of the offence even though he may not actually succeed in his object and commit the offence. The learned Judge himself emphasized this by observing at p. 48: "The circumstances stated in the illustrations to (1) (1872) 4 N.W.P. 46. 248 section 51 1, Indian Penal Code, would not have constituted attempts under the English law, and I cannot but think that they were introduced in order to show that the provisions of Section 51 1, Indian Penal Code, were designed to extend to a much wider range of cases than would be deemed punishable as offences under the English Law". In In the matter of the petition of R. MacCrea (1) it was held that whether any given act or series of acts amounted to an attempt which the law would take notice of or merely to preparation, was a question of fact in each case and that section 511 was not meant to cover only the penultimate act towards the completion of an offence and not acts precedent, if those acts are done in the course of the attempt to commit the offence, and were done with the intent to commit it and done towards its commission. Knox, J., said at p. 179: "Many offences can easily be conceived where, with all necessary preparations made, a long interval will still elapse between the hour when the attempt to commit the offence commences and the hour when it is completed. The offence of cheating and inducing delivery is an offence in point. The time that may elapse between the moment when the preparations made for committing the fraud are brought to bear upon the mind of the person to be deceived and the moment when he yields to the deception practiced upon him may be a very considerable interval of time. There may be the interposition of inquiries and other acts upon his part. The acts whereby those preparations may be brought to bear upon her mind may be several in point of number, and yet the first act after preparations completed will, if criminal in itself, be beyond all doubt, equally an attempt with the ninety and ninth act in the series. Again, the attempt once begun and a criminal act done in pursuance of it towards the commission of the act attempted, does not cease to be a criminal attempt, in my opinion, because the person (1) I.L.R. 15 All. 173. 249 committing the offence does or may repent before the attempt is completed". Blair, J., said at p. 181: "It seems to me that section (section 511) uses the word 'attempt ' in a very large sense; it seems to imply that such an attempt may be made up of a series of acts, and that any one of those acts done towards the commission of the offence, that is, conducive to its commission, is itself punishable, and though the act does not use the words, it can mean nothing but punishable as an attempt. It does not say that the last act which would form the final part of an attempt in the larger sense is the only act punishable under the section. It says expressly that whosoever in such attempt, obviously using the word in the larger sense, does any act, etc., shall be punishable. The term 'any act ' excludes the notion that the final act short of actual commission is alone punishable. " We fully approve of the decision and the reasons therefor. Learned counsel for the appellant relied on certain cases in support of his contention. They are not much to the point and do not in fact express any different opinion about the construction to be placed on the provisions of section 511, Indian Penal Code. Any different view expressed has been due to an omission to notice the fact that the provisions of section 511, differ from the English Law with respect to 'attempt to commit an offence '. In Queen vs Paterson (1) the publication of banns of marriage was not held to amount to an attempt to commit the offence of bigamy under section 494, Indian Penal Code. It was observed at p. 317: "The publication of banns may, or may not be, in cases in which a special license is not obtained. a condition essential to the validity of a marriage, but common sense forbids us to regard either the publication of the banns or the procuring of the license as a part of the marriage ceremony. " (1) I.L.R. 1 All. 32 250 The distinction between preparation to commit a crime and an attempt to commit it was indicated by quoting from Mayne 's Commentaries on the Indian Penal Code to the effect: "Preparation consists in devising or arranging the means or measures necessary for the commission of the offence; the attempt is the direct movement towards the commission after the preparations have been made." In Regina vs Padala Venkatasami (1) the preparation of a copy of an intended false document, together with the purchase of stamped paper for the purpose of writing that false document and the securing of information about the facts to be inserted in the document, were held not to amount to an attempt to commit forgery, because the accused had not, in doing these acts, proceeded to do an act towards the commission of the offence of forgery. In In the matter of the petition of Riasat Ali (2) the accused 's ordering the printing of one hundred receipt forms similar to those used by a company and his correcting proofs of those forms were not held to amount to his attempting to commit forgery as the printed form would not be a false document without the addition of a seal or signature purporting to be the seal or signature of the company. The learned Judge observed at p. 356: ". . . I think that he would not be guilty of an attempt to commit forgery until he had done some act towards making one of the forms a false document. If, for instance, he had been caught in the act of writing the name of the Company upon the printed form and had only completed a single letter of the name, I think that he would have been guilty of the offence charged, because (to use the words of Lord Blackburn) 'the actual transaction would have commenced, which would have ended in the crime of forgery, if not interrupted '. " The learned Judge quoted what Lord Blackburn said in Reg. vs Chessman (3): (1) Mad. 4. (2) Cal. (3) Lee & Cave 's Rep. 145. 251 "There is no doubt a difference between the preparation antecedent to an offence and the actual attempt; but if the actual transaction has commenced, which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.", He also quoted what Cockburn, C. J., said in M 'Pher son 's Case (1): "The word 'attempt ' clearly conveys with it the idea, that if the attempt had succeeded, the offence charged would have been committed. An attempt must be to do that which, if successful, would amount to the felony charged. " It is not necessary for the offence under section 511, Indian Penal Code, that the transaction commenced must end in the crime or offence, if not interrupted. In In re: Amrita Bazar Patrika Press Ltd. Mukherjee, J., said at p. 234: "In the language of Stephen (Digest of Criminal Law, article 50), an attempt to commit a crime is an act done with an intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted. To put the matter differently, attempt is an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime; in other words, an attempt consists in the intent to commit a crime, combined with the doing of some act adapted to, but falling short of, its actual commission; it may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted: Reg. vs Collins This again is not consistent with what is laid down in section 511 and not also with what the law in England is. In Stephen 's Digest of Criminal Law, 9th Edition, attempt ' is defined thus: (1) Dears & B. 202. (2) Cal. (3) (1864) 9 Cox. 497. 252 "An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case. An act done with intent to commit a crime, the commission of which in the manner proposed was, in fact, impossible, is an attempt to commit that crime. The offence of attempting to commit a crime may be committed in cases in which the offender voluntarily desists from the actual commission of the crime itself. " In In re: T. Munirathnam Reddi (1) it was said at p. 122: "The distinction between preparation and attempt may be clear in some cases, but, in most of the cases, the dividing line is very thin. Nonetheless, it is a real distinction. The crucial test is whether the last act, if uninterrupted and successful, would constitute a crime. If the accused intended that the natural consequence of his act should result in death but was frustrated only by extraneous circumstances, he would be guilty of an attempt to commit the offence of murder. The illustrations in the section (section 511) bring out such an idea clearly. In both the illustrations, the accused did all he could do but was frustrated from committing the offence of theft because the article was removed from the jewel box in one case and the pocket was empty in the other case. " The observations 'the crucial test is whether the last act, if uninterrupted and successful, would constitute a crime ' were made in connection with an attempt to commit murder by shooting at the victim and are to be understood in that context. There, the nature of the offence was such that no more than one act was necessary for the commission of the offence. (1) A.I.R. 1955 And. 118. 253 We may summarise our views about the construction of section 511, Indian Penal Code, thus: A personal commits the offence of 'attempt to commit a particular offence ' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. In the present case, the appellant intended to deceive the University and obtain the necessary permission and the admission card and, not only sent an application for permission to sit at the University examination, but also followed it up, on getting the necessary permission, by remitting the necessary fees and sending the copies of his photograph, on the receipt of which the University did issue the admission card. There is therefore hardly any scope for saying that what the appellant had actually done did not amount to his attempting to commit the offence and had not gone beyond the stage of preparation. The preparation was complete when he had prepared the application for the purpose of submission to the University. The moment he dispatched it, he entered the realm of attempting to commit the offence of 'cheating '. He did succeed in deceiving the University and inducing it to issue the admission card. He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher. We therefore hold that the appellant has been rightly convicted of the offence under section 420, read with section 511, Indian Penal Code, and accordingly dismiss the appeal. Appeal dismissed.

The appellant applied to the Patna University for permission to appear at the 1954 M. A. Examination in English as a private candidate representing that he was a graduate having obtained his B. A. Degree in 1951 and that he had been teaching in a certain school. Believing his statements the University authorities gave him the necessary permission, and on his remitting the requisite fees and sending copies of his photograph, as required, a proper admission card for him was dispatched to the Headmaster of the School. As a result of certain information received by the University, an investigation was made and it was found that the appellant was neither a graduate nor a teacher as represented by him and that in fact he had been de barred from taking any University examination for a certain number of years on account of his having committed corrupt practice at a University examination. He was prosecuted and convicted under section 420 read with section 511 of the Indian Penal Code, of the offence of attempting to cheat the University by false representations by inducing it to issue the admission card, which if the fraud had not been detected would 31 242 have been ultimately delivered to him. The appellant contended that on the facts found the conviction was unsustainable on the grounds (1) that the admission card had no pecuniary value and was therefore not property under section 415, and (2) that, in any case, the steps taken by him did not go beyond the stage of preparation for the commission of the offence of cheating and did not therefore make out the offence of attempting to cheat. Held, that under section 511 of the Indian Penal Code a person commits the offence of attempting to commit a particular offence, when he intends to commit that particular offence and, having made preparations and with the intention to commit that offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing such offence. It is not necessary for the offence under section 511 that the transaction commenced must end in the crime or offence, if not interrupted. The observations to the contrary in The Queen vs Ramsarun Chowbey, (1872) 4 N. W. P. 46, In the matter of the Petition of Raisat Ali, Cal. 352 and In re Amrita Bazar Patrika Press Ltd., Cal. 190, not approved. In the matter of the Petition of R. MacCrea, (1893) I.L.R. 15 All. 173, approved. In re T. Munirathnan Reddi, A.I.R. 1955 And. 118, explained. Held, further that an admission card issued by the Univer sity for appearing at the Examination held by it, though it has no pecuniary value, has immense value to the candidate and is property within the meaning Of section 415 Of the Indian Penal Code. Queen Empress vs Appasami, Mad. 151 and Queen Empress vs Soski Bhusan, All. 210, relied On. In the present case, the preparation was complete when the appellant had prepared the application for the purpose of submission to the University, and the moment he despatched it, he entered the realm of attempting to commit the offence of cheating. Accordingly, the appellant was rightly convicted of the offence under section 420 read with section 511 of the Indian Penal Code.

The appellant sued his wife for dissolution of marriage on the ground of her adultery. On the evidence the trial court found that it was not possible to hold that adultery had been committed, though it found that one of the letters contained "a large substratum of truth". The High Court in appeal concurred with the decision. On appeal to the Supreme Court it was contended for the appellant that the finding of the courts below was vitiated because certain pieces of evidence had been misread, and some others ignored. As a matter of legitimate and proper inference the Court should not have arrived at any other conclusion, but that the wife was guilty of adultery with respondent NO. 2. The evidence showed that the wife went to Patna and stayed in a hotel with respondent NO. 2 under an assumed name, that they occupied the same room in the hotel, that the conduct of the respondent indicated a guilty inclination, and that so far as the wife was concerned, her conduct was entirely consistent with her guilt : Held, that, the nature of the evidence adduced was such as would satisfy the requirements of section 14 of the Divorce Act, and that the finding of the Courts below that an inference of adultery could not be drawn therefrom must be set aside. Although it is not usual for the Supreme Court to interfere 1411 on questions of fact, where, however, the courts below ignore or misconstrue important pieces of evidence in arriving at their finding, and this Court is of the opinion that no tribunal could have come to such a finding oil the evidence taken as a whole, such finding was liable to be interfered with by this Court. Held, further, that the words "satisfied on the evidence" in section 14 Of the Divorce Act, 1869, imply that it is the duty of the (Court to pronounce a decree only when it is satisfied that the case lhas been proved beyond reasonable doubt as to the commission of a matrimonial offence. The evidence must be clear and satisfactory beyond mere balance of probabilities. It is not neccessary and rarely possible, to prove the issue by any direct evidence. The rule laid down in Preston Jones vs Preston Jones, , lays down the principle that should be followed by tile courts under section 7 Of the Divorce Act. State of Madras vs A. vaidanatha Iyer; , , Purvez Ardeshir Poonawala vs The State of Bombay, Cr. A. 122 Of 1954, decided on December 20, 1957, Stephen Seneviratne vs The A.I.R. 1936 P.C. 289, Mordaunt vs Moncrieffe, (1874) 30 649 and Gower vs Gower [1950] 1 All. E.R. 804, referred to. Loveden vs Loveden, ; (1810) 2 Hag. 1,3, referred to. Preston Jones vs Preston Jones, , relied upon.

In the election to the Bihar Legislative Assembly held in 1985, the appellant was declared elected from the 286 Chandan Kyari (S.C.) Constituency. The respondent, a sitting M.L.A., who secured 430 votes less than the appellant, filed an election petition in the Patna High Court (Ranchi Bench) calling in question the election of the appellant. The respondent 's main grievance was that the Returning Officer re allocated his 'bow and arrow ' symbol to another candidate Murura Dasi, and instead allotted the symbol of 'ladder ' to him, and this sudden change of symbol left him with less than 20 days time for campaign which resulted in confusion amongst his supporters as a result of which his election was materially affected. On this premise the respondent contend ed that the election was liable to be declared void on the ground of (i) violation of section 30(d) of the Representa tion of People Act, 1951, which according to him prescribed atleast 20 days time for election campaign, which he did not have after change of the symbol; and (ii) violation of Rule 10(5) of the Conduct of Election Rules, 1961 under which, according to him, the election symbol could not be changed without permission of the Election Commission. The respond ent election petitioner examined himself. Evidence of no other witness appears on record. The High Court allowed the petition and declared the appellant 's election to be void holding that the result of the election in so Tar as it concerned the returned candi date was materially affected by violation of Rule 10(5) of the Conduct of Election Rules, 1961. Before this Court, it was contended on behalf of the appel lant that 922 (i) the appellant did not receive any notice of the election petition against her and the trial had proceeded ex parte; (ii) there was no breach of section 30(d) of the Representa tion of the People Act Inasmuch as the minimum 20 days time was available after the date of withdrawal of nomination paper to the date of poll; (iii) there was no violation of Rule 10(5) of the Conduct of Election Rules; and (iv) even assuming that there was violation of this rule, the election petitioner dismally failed to prove by evidence that the result of the election was materially affected thereby, inasmuch as no sufficient evidence was adduced in proof of his claim, and he himself could not have proved his aver ments. Allowing the appeal, this Court, HELD: (1) Under s.30 of the Representation of the People Act, 1951, as soon as the notification calling upon a con stituency to elect the member or members is issued, the Election Commission shall, by notification in the Official Gazette appoint, amongst others, under clause (d), the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the twentieth day after the last date for the withdrawal of candidature. [928F] (2) In the instant case, the last date for the withdraw al of nomination was 9.2.1985 and the date of poll was 5.3.1985. There was, therefore, clear compliance with the requirement of section 30(d). The respondent himself stated that on 14.2.1985 he received notice of intention of the Return ing Officer to change his election symbol and the symbol was actually changed on 15.2.1985. This Court agrees with the High Court that only the spirit of section 30(d) was not complied with. In terms, this provision was clearly complied with. [928G 929A] (3) The violation of sub rule (5) of Rule 10 per se will not invalidate the election. The election petitioner has also to prove that the result of the election, in so far as it concerns the returned candidate, was materially affected. [934A B] (4) The party who wishes to get an election declared void has to establish by satisfactory evidence that the result of the poll had in fact been materially affected by the violation of Rule 10(5) of the Rules. For doing this, it has to be demonstrated that the votes would have been di verted in such a way that the returned candidate would have been unsuccessfull. [931B] 923 Vashist Narain Sharma vs Dev Chandra & Ors., ; ; lnayatullah Khan vs Diwanchand Mahajan & Ors., ; S.N. Balakrishna vs Fernandes, ; , ; Shiv Charan Singh vs Chandra Bhan Singh, ; and Chhedi Ram vs Jhilmit Ram & Ors., , referred to. (5) A decision in an election petition can be given only on positive and affirmative evidence and not on mere specu lation and suspicion, however, strong they are. In the instant case, there is no such positive and affirmative evidence. Mere assertions by the election petitioner were not enough. [932D] (6) There could be no proposition or contention that a candidate with a particular symbol would always be success ful at the hustings or that a particular voter or a number of voters would always vote for a symbol irrespective of the candidate to whom it is allotted. [932E] (7) There is no dispute about the importance of the symbol in a backward constituency. This will however, not absolve the election petitioner of his burden of proving that the result of the election has been materially affect ed. [933B] All Party Hill Leaders ' Conference, Shillong vs Captain W.A. Sangama, ; and Roop Lal Sathi vs Nach hattar Singh Gill; , , referred to. (8) The election petitioner has not stated and proved that more than 430 voters would have voted for him, had the symbol of 'bow and arrow ' not been changed, and that they voted for Murura Dasi only for her having the symbol of 'bow and arrow '. How could that be proved would. of course, depends on the facts and circumstances of the case. [929F] (9) In the instant case, the election petitioner dismal ly failed to discharge the burden of proving that the result of the election, in so far as it concerned the appellant, who has been the returned candidate, was materially affect ed. The High Court was in error in holding, without suffi cient evidence, that it was materially affected. [934C]

The appellants who were charged with the offence of committing murder were acquitted by the Sessions Judge. But on appeal by the State, the High Court convicted and sentenced them. In their appeal under section 2(a) of the , this court, after a detailed analysis of the High Court 's judgment and the evidence led in the case summarily dismissed the appeal under section 384 of the Code of Criminal Procedure, 1973. After the pronouncement of the judgment but before it was signed, the attention of the court was drawn to the judgment in Sita Ram vs State of U.P. ; which, according to them, held that the Supreme Court had no power to summarily dismiss an appeal under section 384, Cr. P.C. in an appeal under section 2(a) of the 1970 Act. Dismissing the appeal. ^ HELD: The decision in Sita Ram vs State of U.P. is no authority regarding the power of the court to summarily dismiss an appeal under section 384 of the Criminal Procedure Code. In that case neither in the application for adducing additional grounds nor in the order of the Court directing the matter to be placed before the constitution bench was there any reference to the validity of section 384 nor was it pleaded that the section was ultra vires the Constitution. [356 E] Therefore the observation of the Court that it has "pondered over the issue in depth" would not be a precedent binding on the court. The decision is an authority for the proposition that rule 15(1)(c) of order XXI of the Supreme Court Rules should be read down as indicated in that decision. [356F]

The respondent sought special leave to appeal to the High Court under section 417(3) of the Code of Criminal Procedure, 1898 against the acquittal of the petitioner by the trial court. The application was made beyond the period of limitation but the High Court condoned the delay under section 5 of the . In their application for special leave to appeal to this Court the petitioners contended that the time limit of 60 days prescribed under section 417(4) was mandatory and as such the High Court had no jurisdiction to extend the time limit by resort to section 5 of the . Dismissing the special leave petitions, ^ HELD: (1) The order granting special leave was not an order outside the power of the High Court. In a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the , section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of 60 days prescribed in sub section (4) of section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. [265B C] (2) Since under the section 5 is specifically made applicable by section 29(2) it could be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of section 5 that it stands displaced. Section 29(2) (b) of the Limitation Act, 1908 specifically excluded the applicability of section 5 while section 29(2) of the 1963 Act in a clear and unambiguous terms provides for applicability of section 5. [264F, E] Kaushalya Rani vs Gopal Singh ; , explained.

The appellant joined as a lecturer in a College in U.P. On the hub ,of certain complaints received by the Manager of the College, charges were framed against him and his explanation, was called for. He submitted an explanation. The explanation was found unsatisfactory and the Managing Committee passed a resolution for removal of the appellant from service. The relevant statutes governing the present case are Statutes 151, 152 and 153 framed under the provisions of the Lucknow University Act, 1920. The appellant filed a writ petition before the High Court challenging the validity of the resolution and a learned single judge finding that the Managing Committee acted in violation of the principles of natural justice, quashed the resolution and allowed the writ petition. On appeal, a Division Bench set aside the order of the learned single judge and dismissed the writ petition on the ground that no writ lies in the facts and circumstances of the case. The remedy of the appellant lay in a suit for damages. On behalf of the appellant it was contended that the appel lant had a statutory status, that his services were terminated in violation of the provisions of the statutes passed under the Lucknow University Act, 1920 and therefore, the High Court was wrong in its conclusions that no writ of certiorari would lie against the respondent. It was further submitted that ,the appellant was not given a reasonable opportunity of defending himself against the charges. Statue 151 provides that a teacher of an associated College shall be appointed on a written contract and the contract shall provide the conditions mentioned there in addition to such other conditions as the associated College may include in the agreement. Clause 5 of the agreement provides that the Managing Committee may dispense with the services of a lecturer without notice if the Committee is satisfied that it is necessary to remove the said lecturer for misconduct or otherwise, provided, an opportunity is given to him by the Committee to give his explanation before a decision is arrived at. Dismissing the appeal. HELD : (1) When there is a purported termination of a contract of service,. a declaration that a contract of service 'still subsisted would not be made in the absence of special circumstances and courts do not ordinarily enforce specific performance of a contract of service. The remedy of the victim lies in a claim for damages, not a claim for a declaration that the contract of service still subsisted. [322 E F] Executive Committee of U.P. State Warehousing Corporation Ltd. vs Chandra Kiran Tyagi, ; ; and Indian Airlines Corporation vs Sukh Dev Rai, ; followed. (2) On a plain meaning of statute 151, it is clear that it only provides that the terms and conditions mentioned therein must be incorporated in 321 the contract to be entered into between the College and the teacher concerned. It does not say that the terms and conditions have any legal force, until: and unless they are embodied in an agreement. The terms and conditions of service mentioned in Statute 151 have proprio vigore, no force of law. They become terms of service only by virtue of their being incorporated in a contract. Without the contract, they have no vitality and can confer no legal right. Therefore, the appellant cannot find a cause of action of any breach of law, but only on the breach of the con tract, for which a writ in the nature of ceritiorari will not lie [327 H] (3) A writ will lie when the order is the order of a statutory body acting in breach of a mandatory obligation imposed by a statute. The College or the Managing Committee in question, is not a statutory body and so the High Court is right is dismissing the petition.[328 D] Further, since the High Court has no jurisdiction, it is not necessary to go into the question as to whether the appellant was given sufficient opportunity to meet the charges against him. [328 G] Prabhakar Ramkrishna Jodh vs A. L. Pande & anr. [1965] 2 S.C.R. 713, and Vidyodaya University vs Silva discussed and distinguished.

After passing his M.A. examination securing more than 40 per cent marks (364 out of 900), the appellant secured admission in 1983 to three years law course in Ganjam Law College. Along with his form seeking admission he had sub mitted the mark sheet with his M.A. degree certificate. He completed his first year course 'Pre Law course ' in 1984 and was promoted to the "Intermediate Law course". In 1985, he appeared for the 'pre law ' and 'inter law ' examinations. He gave the said examination and in the same year was admitted to the Final Law course. However his results for the Pre Law and Intermediate Law course were not declared by the Univer sity on the ground that in view of the Regulations of the University, he was not qualified to be admitted to the law course. His admission being improper, he was not eligible to sit at the examinations aforesaid. The appellant made repre sentations to the Bar Council of India and the Administrator of the University but to no avail. When his representations and even the communication from the Chairman of the Board of Studies to the University did not yield the desired result, the appellant approached the Orissa High Court by means of writ petition on 11.5.87 challenging the non declaration of his results and the University 's refusal to permit the appellant to appear in the final examination. The writ petition having been dismissed by the High Court, he has filed this appeal by special leave. The question that falls for determination by this Court is whether the appellant was eligible to be admitted to Law Course. Allowing the appeal, this Court, HELD: (Per Sawant, J.) The requirement of 40 per cent marks in the aggregate, is meant 273 only for graduates such as of Bachelor of articles etc. That requirement does not apply to those candidates who pass any higher degree examination after graduation. For admission to the Law Course there is no requirement of any particular marks for post graduate students like the appellant, and the appellant is entitled to be admitted under Reg. 1 in Chapter VIII of the said Regulations. The appellant satisfies the other qualification as well, viz., he has passed the M.A. examination with 36 per cent marks in the aggregate deduct ing 13 marks in one of the papers and is therefore, duly qualified to be admitted to the Law course. [277G; 278F G] Resolution No. 123/1984 of the Bar Council of India does not speak of the requirement of marks for examination at post graduate level. [279G] The distinction between graduates and post graduates made in the matter of the qualifying marks is as it ought to be, since graduates and post graduates cannot be treated equally. The appellant while securing his admission in the Law College had admittedly submitted his marks sheet along with the application for admission. The Law College had admitted him. He had pursued his studies for two years. The Universi ty had also granted him the admission card for the Pre law and Intermediate Law examinations. He was permitted to appear in 'the said examinations. He was also admitted to the Final year of the course. It is only at the stage of the declaration of his results of the Pre law and Inter law examinations that the University raised the objection to his so called ineligibility to be admitted to the Law course. The University is therefore clearly estopped from refusing to declare the results of the appellant 's examination or from preventing him from pursuing his final year course. [280C E] (Per Sharma, J. ) From the letters of the University it is clear that it was not depending upon the opinion of the Principal and had decided to verify the situation for itself. In that situa tion it cannot punish the student for the negligence of the Principal or the University authorities. It is important to appreciate that the appellant cannot be accused of making any false statement or suppressing any relevant fact before anybody. He had produced his marks sheet before the College authority with his application for admission, and cannot be accused of any fraud or misrepresentation. [281D F] 274 Assuming the construction of the rule as contended by the University is correct, the Principal cannot be condemned for recommending the candidature of the appellant for the examination in question. It was the bounden duty of the University to have scrutinised the matter thoroughly before permitting the appellant to appear at the examination and not having done so, it cannot refuse to publish his results. [281F G] It is impressed upon the University authorities to frame the rules in such clear terms that it may not require great skill for understanding them. In order to achieve clarity, it does not matter, if the rule, instead of being concise, is elaborate and lengthy. [281H; 282A]

In his election petition challenging the election of the respondent the appellant alleged that the respondent and three other defeated candidates committed various corrupt practices within the meaning of sub sections (1) to (7) of section 123 of the Representation of the People, Act, 1951. The respondent raised a preliminary objection that the petition was liable to be dismissed for noncompliance with the provisions of section 82 of the Act inasmuch as the defeated candidates against whom allegations of corrupt practice had been made had not been joined as parties to the petition. The High Court upheld the objection and dismissed the petition. In appeal to this Court it was contended that: (i) since the affidavit filed by the appellant in support of the election petition merely stated that the allegations contained in the relevant paragraphs were based on information received and had not stated what the sources of information were, that part of the petition in which the allegations of corrupt practices were made could not form the basis of a triable issued (ii) while section 82(a) was mandatory s.82(b) was directory and as such the petition could not be dismissed: (iii) s.82(b) was violative of article 14 of the Constitution. Dismissing the appeal. HELD : (i) The provision for setting out the sources of information in an affidavit was not a requisite prescribed under r. 94 A of the conduct of Election Rules, 1961. There was 'nothing in the affidavit in Form 25 under this rule which required the petitioner to state the source or source", of his information. When there were specific rules under the Act no other rules were applicable. If the petition and the affidavit conformed to the provisions of the Act and the rules made thereunder, it could not be said that because the source of information had not been given. the allegations made in the petition had to be ignored. [353E F] Smt. Sahodrobai Rai vs Ram Singh Aharwar & Ors. A.I.R. ; Amulva Chandra Rhaduri vs Satish Chandra Giri & Ors. A.I.R. 1932 Cal. 255 and Wasudeoraoji vs A. D. Mani A.I.R. 1951 Nag. 26, held inApplicable. (ii) Section 82(2) enioins that, apart from the returned candidate whose election was challenged, any other candidate against whom any allegations of corrupt practices were made should be joined as parties to the petition Section 86 read with s 82 makes both cls. (a) and (b) of s 82 mandatory and noncompliance with these requirements renders the petition to be dismissed. In view of these provisions it was incumbent upon the High Court where the allegation *as that the requirements of section g) were not complied with, to deter mine that issue as a preliminary issue. [353A D] Charan Lal Sohu vs Nandkishore Bhatt & Ors. C. A. No. 2411 of 1972 dated August 1, 1973, referred to. Mohan Singh vs Bhanwarlal & Ors. ; , held inapplicable. (iii)An election petition cannot be split up in such a manner as to maintain it in respect of allegations of corrupt practiced only against some persons and not against other persons who were required to be made necessary parties. 350 A person who was not a party and against whom corrupt practices had been proved at the trial, natural justice required that he should also be afforded an opportunity to contest that finding. Article 14 had no application because the object of section 82 was one and indivisible and a person coming to the court had to come with clean hands and not attempt to prevent a full and complete enquiry or thwart fair trial by picking and choosing the parties to the peti tion. [357C F]

Appeals Nos. 170 to 172 of 1959. Appeals by special leave from the decision dated August 20, 1953/September 3, 1953, and August 30, 36 278 1954, of the Board of Revenue, Bihar at Patna in Reference Cases Nos. 461 and 462 of 1952 and 430 of 4954, respectively. Veda Vyas and B. P. Maheshwari, for the appellant. R. C. Prasad, for the Respondent. April 24. The Judgment of the Court was delivered by section K. DAS,J. These three appeals with special leave granted under article 136 of the Constitution have been heard together and this judgment will govern them all. They raise a common question as to the practice of this Court, which we shall presently state. But before we do so, we must first set out the facts in so far as it is necessary to state them in order to appreciate the precise nature of the question that has arisen for consideration in these appeals. The relevant facts are these. The firm of Messrs. Durga Dutt Chandi Prasad, appellant in these appeals, carried on a business of dealing in several kinds of goods but mostly in raw jute at Sahebganj in Bihar. It was registered as a dealer under section 4 of the Bihar Sales Tax Act, 1944, with effect from July 1, 1946. For three periods, commencing from October 1, 1947 and ending on March 31, 1950, it was assessed to sales tax on its turnover of the relevant periods, which consisted inter alia of purchases alleged, to have made on behalf of two other jute mills outside Bihar, namely, the Raigarh Jute Mills and the Bengal Jute Mills, and also of dispatches of jute said to have been made to the dealer 's own firm in Calcutta for sale in Calcutta. For the assessment period commencing on October 1, 1947 and ending on March 31, 1948 the appellant claimed a deduction of (a) Rs. 6,58,880 5 9 on the ground that the said amount represented purchases made on behalf of the aforesaid two jute mills, and (b) Rs. 1,62,662 13 3 being despatches of jute made to the dealer 's own firm in Calcutta. Similarly, for the next assessment period commencing on April 1, 1948 and ending on March 31, 1949 the appellant claimed a deduction of certain amounts (the exact amounts being 279 irrelevant for our purpose) on the two grounds mentioned above from the relevant turnover. The claim of the appellant was that purchases made on behalf of the two jute mills aforesaid and the despatches of jute made to the appellant 's own firm in Calcutta were not `sales ' within the meaning of the Bihar Sales Tax Act, 1947 (hereinafter called the Act). For the third period of assessment commencing on April 1, 1949 and ending on March 31, 1950 a similar claim was made. But for this period there was an additional claim with regard to the sale of mustard seed worth Rs. 1,00,513 119 to Messrs. Panna Lal Binjraj for which the appellant claimed a deduction. On June 7, 1951 the Sales Tax Officer concerned disallowed the claim of the appellant for the first two periods and by an order dated April 17, 1953, the claim for the third period was also disallowed. The appellant then preferred appeals under the relevant provisions of the Act. These appeals were heard by the Deputy Commissioner of Commercial Taxes,, Bihar, and were dismissed by him. Then the appellant filed applications in revision under section 24 of the Act to the Board of Revenue, Bihar. The Board by its orders dated August 20, 1953, and September 3, 1953, dismissed the petitions of revision relating to the first two periods and by its orders dated April 30, 1954, also dismissed the petition of revision relating to the third period. Under section 25(1) of the Act the appellant moved the Board to state a case to the High Court of Patna on certain questions of law which, According to the appellant, arose out of the orders passed. The Board, however, refused to state a case inasmuch as in its opinion no questions of law arose out of the orders passed. The Board expressed the view that the two questions, namely, (1) whether the despatch of jute outside the State of Bihar was a sale within the meaning of the Act and (2) whether the purchases said to have been made on behalf of the two mills outside Bihar were liable to tax, were both concluded by findings of fact arrived at by the competent authorities on relevant materials in the record and were no longer open to challenge. The appellant then 280 moved the High Court for requiring the Board to state a case on the questions of law which, according to the appellant, arose out of the orders passed with regard to the first two periods of assessment. By an order dated November 17, 1954, the High Court dismissed the two applications made to it for requiring the Board to state a case to the High Court with regard to the said two periods. On a similar application made by the appellant to the High Court with regard to the third period of assessment, the High Court directed the Board of Revenue to state a case on the following question: "Whether the petitioner is entitled to claim a deduction on account of sale of mustard seed to the extent of Rs. 1,00,513 11 9 to Messrs. Panna Lal Binjraj as sales made to a registered dealer under the Schedule to Bihar Finance Act (No. 11) of 1949 read with the Bihar Sales Tax Act (Bihar Act XIX of 1947). " By an order dated January 21, 1957 the High Court answered the question against the appellant. The finding of the High Court was thus expressed: "We are satisfied that the petitioner was not entitled to deduction of the amount of the price of mustard seed sold to Messrs. Panna Lal Binjraj for the purpose of manufacture because there is no mention in the certificate of registration granted to Messrs. Panna Lal Binjraj that mustard seed could be sold to them for the purpose of manufacture free of tax. As the conditions imposed by the proviso to section 5 have not been satisfied in this case, the Sales tax authorities rightly decided that deduction of the price of mustard seed sold to Messrs. Panna Lal Binjraj cannot be granted to the petitioner. " On February 17,1955, the appellant made an application to this Court for special leave to appeal from the orders of the Board of Revenue passed on the two applications in revision as respects the first two periods. This Court granted the leave prayed for by an order dated December 23, 1955. It should be emphasised here that the appellant prayed for and got leave to appeal from the orders of the Board dated 281 August 20, 1953 and September 3, 1953 passed on the two applications in revision. No application was made for leave to appeal, nor was any leave granted, with regard to the subsequent orders made by the Board refusing to state a case or the orders of the High Court refusing the application of the appellant to direct the Board to state a case. With regard to the third period of assessment regarding which the High Court had directed the Board to state a case on a particular question of law and had actually answered it, the appellant again made an application for special leave to appeal on April 12, 1955, and this Court granted leave to the appellant by an order dated December 23, 1955, the leave granted being confined to the order of the Board of Revenue dated August 30, 1954, by which the Board decided that no questions of law arose for a reference to the High Court. Again, the appellant neither asked for nor obtained any leave to appeal from the subsequent orders of the High Court by which the High Court held that only one question of law arose out of the orders passed with regard to the third period of assessment and directed the Board to state a case on that question. Nor did the appellant move against the judgment and order of the High Court dated January 21, 1957, by which the High Court answered the one question referred to it adversely to the appellant. On the facts stated above the question which has arisen is whether as a matter of practice of this Court, the appellant is enticed to be heard on merits in the three appeals when special leave was neither asked for nor granted in respect of the subsequent orders of the High Court relating to the assessments in question which have now become final between the parties thereto. In other words, the question is whether the High Court should be allowed to be by passed in the manner sought to be done by the appellant in these three appeals? The position is quite clear. With regard to two of the assessment orders the High Court held that no questions of law arose at all; with regard to the third assessment order the High Court held that only one question of law arose and it answered 282 that question against the appellant. Can the appellant now ignore these orders of the High Court and ask us to consider on merits the orders of the Board of Revenue passed on the two revision applications for the first two periods and the orders of the Board in the reference case holding that no question of law arose out of the assessment order for the third period? This is the question, taken as a preliminary point, which we have to answer in these three appeals. The question has to be considered with regard to (a) the scope and ambit of article 136 of the Constitution; (b) the practice of this Court; and (c) the question must also be considered in the context of the scheme of the Act under which the assessments were made, appeals and revisions in respect thereof were heard, and the scope and effect of section 25 of the Act under which the Board was asked to refer certain alleged questions of law to the High Court and the High Court was asked to direct the Board to state a case on the questions of law said to arise out of the assessment orders. It is necessary at this stage to dispose of an initial point taken on behalf of the appellant, before we go to a consideration of the main question. The point is this. On behalf of the appellant it has been submitted that leave having been granted by this Court, the preliminary objection taken to the hearing of the appeals should not be entertained now and the appeals should be heard on merits. We are unable to accept this as correct. In these cases leave was granted without hearing the respondents, and full materials in the record were not available nor placed before the Court when leave was granted. In Baldota Brothers vs Libra Mining Works (1) this Court has pointed out that there is no distinction in the scope of the exercise of the power under article 136 at the stage of application for special leave and at the stage when the appeal is finally disposed of, and it is open to the Court to question the propriety of the leave granted even at the time of the hearing of the appeal. This view is in accord with some of the earlier decisions of this Court to which a reference has been made in Baldota '8 case (1) A.I.R 1961 S.C. 100. 283 (supra). Therefore, it is open to us to consider now whether leave was properly granted in these appeals and whether the appellant is entitled to be heard on merits consistently with the practice of this Court in similar circumstances. We proceed now to a consideration of the main question. As a preface to that discussion it is advisable to refer here to some of the provisions of the Act in order to bring out clearly the scheme and object of the Act. The charging section is section 4 which says in effect that every dealer whose gross turnover exceeds a particular amount in a year shall be liable to pay tax under the Act on sales taking place in Bihar. Section 5 lays down the rate of tax. The assessment section is section 13 which states the various circumstances in which the assessing authority may make the assessment. Section 24 of the Act provides for an appeal, revision or review of the assessment. Then come section 25, the scheme of which is analogous to that of section 66 of the Indian Income tax Act, 1922. Under sub section (1) of section 25, the dealer or Commissioner who is aggrieved by an order made by the Board under sub section (4) of section 24 may by application in writing require the Board to refer to the High Court any question of law arising out of such an order; if for reason to be recorded in writing the Board refuses to make such reference, the applicant may under subs. (2) of section 25 apply to the High Court against such refusal. If the High Court is not satisfied that such refusal was justified, it may require the Board to state a case and refer it to the High Court. When a case is referred to the High Court, it decides the question of law raised thereby by a judgment containing the grounds on which the decision is founded. The Board then disposes of the case according to the decision of the High Court. This in short is the scheme of section 25. It is manifest that under this scheme questions of fact ate dealt with by the assessing authorities, subject to appeal and revision; but on questions of law the decision of the High Court is the decision according to which the case has to be disposed of Section 23 of the Act says that save as provided in section 25, no 284 assessment made and no order passed under the Act or the rules made thereunder by the Commissioner or any person appointed under section 3 to assist him shall be called into question in any court and save as provided in section 24, no appeal or application for revision or review shall lie against any such assessment or order. Clearly enough, sections 23, 24 and 25 of the Act cannot override the provisions of the Constitution, nor affect the power of this Court under article 136 of the Constitution. ' The decision of the High Court under section 25 of the Act is undoubtedly subject to the power of this Court under article 136; so also the deter mination or order of any of the assessing authorities which are tribunals within the meaning of article 136. That Article reads (omitting what is not relevant for our purpose): "article 136. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. " The words of the Article are very general and it is stated in express terms that this Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. The question before us is not whether we have the power; undoubtedly, we have the power, but the question is whether in the circumstances under present consideration, it is a proper exercise of discretion to allow the appellant to have resort to the power of this Court under article 136. That question must be decided on the facts of each case, having regard to the practice of this Court and the limitations which this Court itself has laid down with regard to the exercise of its discretion under article 136. What are these limitations In Pritam Singh vs The State (1) this Court indicated the nature of these limitations in the following observations: (1) ; 285 "On a careful examination of Article 136 along with the preceding Article, it seems clear that the wide discretionary power with which this Court is invested under it is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this Article. By virtue of this Article, we can grant special leave in civil cases, in criminal cases, in income tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases. The only uniform standard which in our opinion can be laid down in the circumstances is that the Court should grant special leave to appeal only in those cases where special circumstances are shown to exist. . . . . . . Generally speaking, this Court wilt not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. " Pritam Singh 's case (1) was a case of criminal appeal, but the same view was reiterated in Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal (2), which was an income tax case. It was there observed: "The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula.or rule. " We shall deal with this decision in greater detail a little later, when considering the question of the practice of this Court. It is enough to state here that this Court has uniformly held that there must be exceptional and special circumstances to justify the exercise of the discretion under article 136. (1) ; 37 (2) ; 286 Are there any such circumstances in the appeals before us? The answer must clearly be in the negative. Under the scheme of the Act which we had adverted to earlier, it is not open to the appellant to contest now the findings of fact arrived at by the assessing authorities. As to questions of law the appellant had gone up to the High Court, which held that in respect of two of the assessment orders no ' questions of law. arose and in respect of the third assessment order, only one question of law arose and this question the High Court answered against the appellant. As we have pointed out earlier, the decision of the High Court in respect of all the three assessment orders was no doubt subject to an appeal to this Court if this Court gave special leave under article 136. The appellant did not, however, move this Court for special leave in respect of any of the orders passed by the High Court; those orders have Dow become final and binding on the parties thereto. What the appellant is seeking to do now is to by pass the High Court by ignoring its orders. This the appellant cannot be allowed to do. Far from there being any special cir cumstances in favour of the appellant, there are plenty of circumstances against him. The appellant is really trying to go behind the orders of the High Court by preferring these appeals directly from the orders of the Board of Revenue, and in one appeal from the orders of the Board refusing to make a reference to the High Court. The practice of this Court is also against the appellant. The earliest decision on this point is that of Dhakeswari Cotton Mills Ltd.(1) and learned Counsel for the appellant has relied on it in support of his argument that this Court had in some previous cases interfered with an order of the tribunal in exercise of its power under article 136 even though the assessee had not moved against the order of the High Court. In Dhakeswari 's case (1) what happened was this. The assessee having exhausted all his remedies under the Income tax Act, 1922, including that under section 66(2) for the issue of a mandamus to the Tribunal, made an (1) ; 287 application to this Court for special leave to appeal against the order of the tribunal; this Court granted special leave and in the appeal filed in pursuance thereof quashed the order of the Tribunal. But the decision in Dhakeswari 's case (1) must be read in the light of the special circumstances which existed there. It was found by this Court that the tribunal had violated certain fundamental rules of just ice in reaching its conclusions, and that the assessee had not had a fair hearing; therefore, it was held that it was a fit case for the exercise of the power under article 136. The decision proceeded really on the basis that the principles of natural justice had been violated and there was in reality no fair trial. In the appeals before us no such or similar ground is alleged so as to attract the exercise of our power under article 136. In Moti Ram V. Commissioner of Income tax (2) the appellant did not make any application under section 66(2) of the Income tax Act, 1922, but obtained special leave of this Court in respect of the order of the Tribunal in the special circumstance that his property was attached and proceeded against for the recovery of the tax. The question of the propriety of the grant of special leave was not considered, but the appeal was dismissed on merits. The decision in Jogta Coal Co. Ltd. vs Commissioner of Income tax, West Bengal (3) which is a decision on its own facts, has been open to much debate. The question which fell for consideration there related to depreciation under section 10(2)(vi) of the Indian Income tax Act, 1922, namely, the amount on which the appellant was entitled to calculate deduction allowance for purposes of depreciation. The Income tax Officer made an estimate which was accepted by the Appellate Assistant Commissioner. The matter was taken to the Appellate Tribunal which made its own estimate. An application under section 66(1) was rejected and an attempt to move the High Court under section 66(2) also proved unsuccessful. Then, this Court was moved for special leave to appeal from the orders of the (1) [1955]1 S.C R. 941. (2) [1958]34 I.T.R. 646, (3) [1959]36 I.T.R. 521. 288 Tribunal, and the appeals were brought with special leave granted by this Court. This Court remitted the case to the Tribunal and directed the latter to refer two questions of law to the High Court under section 66(2). It is a little difficult to see how on an appeal from the appellate orders of the Tribunal, a direction under section 66(2) could be made. Perhaps, this fact was not noticed. In any view, the decision cannot be taken as settling the practice of this Court in favour of the appellant. In Omar Salay Mohammed Sait vs Commissioner of Income tax, Madras(1) the Tribunal based its findings on suspicions, conjectures or surmises and the principle laid down in Dhakeswari 's case (2) was followed. The decision in Sardar Baldev Singh vs Commissioner of Income tax, Delhi & Ajmer(1) was also a decision special to its own facts. There the application to the Tribunal was barred by time in circumstances which were beyond the control of the appellant. The Tribunal dismissed the application for a reference on the ground of limitation and the High Court had no power to extend the time. In these circumstances the appellant asked for special leave and condonation of delay. Special leave was granted by condoning the delay. More in point is the decision in V. Govindarajulu Mudaliar vs The Commissioner of Income tax, Hyderabad (4) which was concerned with appeals from the decision of the Tribunal by special leave, after an application under section 66(2) had been dismissed by the High Court. This Court then observed: " We must mention that against the order of the Tribunal the appellant applied for reference to the High Court under section 66(2) of the Indian Income tax Act and the learned Judges of the High Court dismissed that application. No appeal has been preferred against that at all. The present appeal is against the decision of the Tribunal itself. It is no doubt true that this Court has decided in Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal, 1955(1) S.C.R. 941, that an appeal (1) [1959]37 I.T.R. 151. (3) (2) ; (4) A.I.R. 1959 S.C. 248, 289 lies under article 136 of the Constitution of India to this Court against a decision of the Appellate Tribunal under the Indian Income tax Act. But seeing that in this case the appellant had moved the High Court and a decision has been pronounced adverse to him and this has become final, obviously it would not be open to him to question the correctness of the decision of the Tribunal on grounds which might have been taken in an appeal against the judgment of the High Court." In Messrs Chimmonlall Rameshwarlal vs Commissioner Income tax (Central), Calcutta(1) the facts were these. Four appeals were filed with special leave granted by this Court under article 136 which were directed against the orders of the Appellate Tribunal refusing to state a case on an application made to it under section 66(1). No appeals were filed against the orders of the Appellate Tribunal under section 33(4), nor against the orders of the High Court under section 66(2)a position which is similar to the one in the appeal before us relating to the assessment for the third period. In these circumstances this Court observed: "In the present case the circumstance of very great materiality and significance which stares the appellants in the face is that in regard to this very point there is a considered judgment of the High Court delivered by it on the applications made by the appellants to it under section 66(2) of the Act which came to the conclusion that no question of law arose out of the order of the Tribunal, which judgment stands, not having been appealed against in any manner whatever by the appellants. The result of our going into these appeals before us on the merits would be either to confirm the judgment which has been pronounced by the High Court or to differ from it. If we did the former, the appellants would be out of Court; if, however, perchance we came to the contrary conclusion and accepted the latter view, namely, that the High Court was wrong in not granting the applications of the appellants under section 66(2) of the Act there would be two (1) , 290 contrary decisions, one by the High Court and the other by us and we would be in effect, though not by proper procedure to be adopted by the appellants in that behalf, setting aside the judgment of the High Court. This is an eventuality which we cannot view with equanimity. It is contrary to all notions of comings of Courts and even though we are a Court which could in certain events set aside and overrule the decisions of the High Court concerned, we cannot by pass the normal procedure which is to be adopted for this purpose and achieve the result indirectly in the manner suggested by the appellants. We, therefore, think that in the circumstances here it would be inappropriate on our part to enter upon an adjudication of these appeals on merits. We would, therefore, dismiss these appeals without anything more. " We think that these observations apply with equal force, here. A careful examination of the previous decisions of this Court shows that whenever the question was considered, this Court said that save in exceptional and special circumstances such as were found in Dhakeswari 's case (1) or Baldev Singh 's case (2) it would not exercise its power under article 136 in such a way as to by pass the High Court and ignore the latter 's decision, a decision which has become final and binding on the parties thereto, by entertaining appeals directly from the orders of a tribunal. Such exercise of power would be particularly inadvisable in a case where the result may be a conflict of decisions of two courts of competent jurisdiction, a conflict which is not contemplated by sections 23, 24 and 25 of the Act. On the contrary, the object of these sections is to avoid a conflict by making the decision of the assessing authorities final on questions of fact subject to appeal, revision or review as provided for by section 24 and the decision of the High Court subject to an appeal to this Court, final on questions of law under section 25 of the Act. To ignore the decision of the High Court on a question of law would really nullify the statutory provisions of section 25 of the Act. (1) ; (2) ; 291 It remains now to consider one last argument urged on behalf of the appellant. Learned Counsel for the appellant has drawn our attention to article 133 of the Constitution and has pointed out that when the High Court refuses a certificate under article 133, it is open to this Court to grant special leave to appeal (and this Court has often granted such special leave) from the main decision of the High Court irrespective of the orders of the High Court refusing such a certificate. It is argued that the same analogy should apply, and in spite of the orders of the High Court under section 25 of the Act, this Court may and should grant special leave to appeal from the orders of the Tribunal. We do not think that the analogy is apposite. Firstly, in dealing with an application under article 133 the High Court merely considers whether a certificate of fitness should be given in respect of its own decision; in such a case it does not itself decide any question of law such as is contemplated by section 25 of the Act. Secondly, there is no likelihood of any conflict of decisions of the kind referred to earlier arising out of an order under article 133, when special leave is granted to appeal from the main decision of the High Court. The question of two decisions by two different courts or tribunals does not arise, and none of them is by passed by the grant of such special leave. Moreover ' as we have said earlier the question is not one of the power of this Court; but the question is what is the proper exercise of discretion in granting special leave under article 136 of the Constitution. In these appeals we have reached the conclusion, for reasons already stated, that the appellant is not entitled to ask us to exercise our power under article 136. There are no special circumstances justifying the exercise of such power; on the contrary the circumstances are such that it would be wrong both on principle and authority to allow the appellant to by pass the High Court by ignoring its orders. In our view, special leave was not properly given in these cases and we would accordingly dismiss the appeals with costs, without going into merits. There will be one hearing fee. Appeals dismissed.

The appellant firm was assessed to sales tax under the pro visions of the Bihar Sales Tax, 1944, for three periods commencing from October 1, 1947, and ending on March 31, 1050. Its claim for certain deductions was disallowed, and its applications in revision under section 24 Of the Act to the Board of Revenue, Bihar, were dismissed by three orders dated August 20, 1953, September 3, 1953 and April 30, 1954. Under section 25(1) of the Act the appellant applied to the Board to state a case to the High Court of Patna on certain questions of law, but the applications were dismissed by order dated August 30, 1954, on the ground that no questions of law arose. The appellant then moved the High Court for requiring the Board to state a case on the said questions of law. The High Court dismissed the applications in respect of the first two periods of assessment, but by order dated November 17, 1934, directed the Board to state a 277 case in regard to the third period on one of the questions of law which only, in its opinion, arose. By its judgment dated January 21, 1957, the High Court answered the question against the appellant. On February 17, 1955, the appellant made applications to the Supreme Court for special leave to appeal against the orders of the Board of Revenue dated August 20, 953, and September 3, 1953, in respect of the first two periods; and on April 12, 1955, it similarly applied for special leave in respect of the third period. Leave was granted in respect of all the three applications by order dated December 23, 1955, the leave granted in regard to the third period being confined to the order of the Board dated August 30, 1954. When the appeals came up for hearing the question was raised as to whether the appeals were maintainable in view of the fact that no applications for leave to appeal were filed against the orders of the Board of Revenue and the High Court subsequent to the orders of the Board in respect of which only special leave had been granted. Held, that though the words of article 136 of the Constitution of India are wide, the Supreme Court has uniformly held as a rule of practice that there must be exceptional and special circumstances to justify the exercise of the discretion under that Article. Pritam Singh vs The State, ; , V. Govinda rajulu Mudaliar vs The Commissioner of Income tax, Hyderabad, A.I.R. 1959 S.C. 248 and Messrs Chimmonlall Rameshwarlal vs Commissioner of Income tax (Centyal), Calcutta, , relied on. Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal, ; and Baldev Singh vs Commis sioner of Income tax, Delhi and Ajmer, , explained. Held, further, that in the circumstances of the present case the appellant was not entitled to a grant of special leave against the orders of the Board of Revenue where the result would be to by pass the High Court by ignoring its orders. Held, also, that though special leave might have been granted on an application made under article 136, the Court is not precluded from coming to a conclusion at the time of the hearing of the appeal that such leave ought not to have been granted. Baldota Brothers vs Libra Mining Works, A.I.R. 1961 S.C.C. 100, followed.

The appellant, a company resident in British India, had a cotton mill. The cloth manufactured in the mill was sold in British India as well as native States. For the assess ment years 194546, 194647 and 1947 48, the company was assessed under Section 14(2)(c) of the Income Tax Act, 1922, in respect of certain sums remitted to British India from native States, in addition to the assessment under Section 42(3), deeming 1/3rd of the profit from the sales effected in native States, as having accrued from the manufacturing part of business in British India. The assessee 's contention that 1/3rd of income having been assessed under Section 42(3), as income deemed to have accrued in British India, no further assessment should be made under Section 14(2)(c) was rejected by the Income Tax Officer, the Appellate Assistant Commissioner and the Income Tax Appellate Tribunal. The Tribunal also rejected the assessee 's additional contention that if the remittances made to British India in any year exceeded the amount taxed under Section 42(3), then it was only so much of the excess which could be taxed under Section 14(2)(c). However, it reduced the additions made by the Income Tax Officer and affirmed by the appellate authority, by 1/3rd of such remit tances. On a reference made under Section 66(1), the High Court confirmed the Tribunal 's decision. In the appeal before this Court, on behalf of the appel lantassessee R was contended that where there was a mixed fund, as in the instant case, consisting partly of taxed and partly of untaxed monies, any remittance made should he deemed to have been paid out of that 294 part of the money which had suffered tax and that it was the right of the tax payer to attribute the payment to the taxed money so as to obtain the benefit allowed by the law. Dismissing the appeals, this Court, HELD: 1.1 If there were two funds at the disposal of the assessee one upon which tax had been already levied and another which was liable to be brought to tax a presump tion, in the absence of evidence to the contrary might arise that the remittance made by the assessee in the course of its business was made out of the fund that was already taxed and not out of the fund that remained to be taxed. [297F] Meyyappa Chettiar vs The Commissioner of Income Tax, , 45, referred to. 1.2 The tax payer is given the right of attribution in the way most favourable to himself. In the absence of evi dence to the contrary, it is presumed that payments are made out of income. This abstract principle of attribution is applicable in certain circumstances. Whether it is applica ble in a particular case depends upon the facts of that case and the provisions of the statute. It can be adopted only to the extent that it is consistent with the law and facts. [298E F] Paton (As Penton 's Trustee) vs Commissioners of Inland Revenue, 21 Tax Cases 626 and The Cape Brandy Syndicate vs The Commissioners of Inland Revenue, 12 Tax Cases 359, 366, referred to. In the instant case, on the facts found the assessee did not have two funds, but only one fund composed of taxed and non taxed amounts. As one third of this amount had already been taxed under section 42(3) of the Act, 1/3rd of the remittances to British India in a particular year was held to be exempted from levy. The Tribunal having excluded 1/3rd of the remittances to British India from taxation during a particular year, the High Court was justified in refusing to grant any further relief to the assessee. [297G; 299B]

The appellant assessee was a partnership firm carrying on business inter alia of manufacture and erection of cranes. During the assessment year 1965 66, the assessee entered into two contracts for supply and erection of 3 motion electrical overhead travelling cranes. The assessee carried out both the contracts and fabricated and erected 3 motion electrical overhead travelling cranes according to the contract specifications. A question arose in the assessment of the assessee to sales tax for the assessment year 1965 66 whether the amount of Rs. 1,34,500/ received by the assessee under the contract with M/s. Kamlapati Motilal Sugar Mills and the amount of Rs. 2,38,000/ received under the contract with M/s. Upper Doab Sugar Mills Ltd., formed part of the turnover of the assessee and was liable to sales tax. The Sales Tax Officer took the view that the contracts were essentially contracts of sale of ready made cranes and the erection of the cranes at the factory site was merely incidental to the sales and the amounts of Rs. 1,34,500/ and Rs. 2,38,000/ received under the contracts were, therefore taxable. This view was upheld by the Assistant Commissioner in appeal, but in revision the Additional Judge (Revisions) held that each of the two contracts was a works contract not involving any sale of goods and hence the amounts were not exigible to sales tax. On a reference to the High Court at the instance of the Commissioner of Sales Tax, the High Court took the view that each of the two contracts was for supply of 3 motion electrical overhead travelling cranes as a complete unit and "the predominant object was supply of crane as complete unit" and "the bestowing of labour and skill in the execution of the contract" appeared to have been incidental to the supply of the machine. " The High Court observed that in its view parties "intended the property to pass in the subject matter of the contract, namely, the completed crane as movable property" and concluded that it was a contract of sale of goods and not a contract for work and labour. The High Court accordingly answered both the questions referred to it against the assessee and in favour of the Revenue. Allowing the appeal by special leave the Court, ^ HELD: 1. The primary test to find out whether a contract is a contract of sale or a contract for work and labour is whether the contract is one whose main object is transfer of property in a chattel as a chattel to the buyer, though some work may be required to be done under the contract as ancillary or incidental to the sale or it is carrying out of work by bestowal of labour and service and materials are used in execution of such work. The Court 's have evolved some subsidiary tests to resolve the difficulty arising in the application of this primary test as there are a large number of cases which are on the 622 border line and fall within what may be called "grey area". One such test formulated by the Supreme Court in Commissioner of Sales Tax, Madhya Pradesh vs Purshottam Premji, 26 STC 38 is: "The primary difference between a contract for work or service and a contract for sale of goods is that in the former there is in the person performing work or rendering service no property in the thing produced as a whole. .In the case of a contract for sale, the thing produced as a whole has individual existence as the sole property of the party who produced it (at some time before delivery, and the property therein passes only under the contract relating thereto to the other party for price." [628 C G] Commissioner of Sales Tax, M.P. vs Purshottam Premji, 26 STC 38; State of Rajasthan vs Man Industrial Corporation 24 STC 349; Sentinel Rolling Shutters & Engineering Co. (P) Ltd. vs Commissioner of Sales Tax, Maharashtra, ; ; applied. Each of the two contracts for fabrication and erection of a 3 motion electrical overhead travelling crane is not a contract for sale but a contract for work and labour, (a) It is essentially a transaction for fabricating component parts and putting them together and erecting them at the site so as to constitute a 3 motion electrical overhead travelling crane. The transaction is no different than one for fabrication and erection of an open godown or shed with asbestos or tin sheets fixed on columns, (b) It is not as if a 3 motion electrical overhead travelling crane is fabricated by the manufacturer and then sold and delivered to the customer as a chattel, (c) The fabrication and erection of a 3 motion electrical overhead travelling crane is a highly skilled and specialised job and the component parts have to be taken to the site and they are assembled and erected there and it is only when this process is complete, then a 3 motion electrical overhead travelling crane comes into being. The process of assembling and erection requires a high degree of skill and it is not possible to say that the erection of a 3 motion electrical overhead travelling crane at the site is merely incidental to its manufacture and supply. The fabrication and erection is one single indivisible process and a 3 motion electrical overhead travelling crane comes into existence only when the erection is complete. The erection is thus a fundamental and integral part of the contract, because without it the 3 motion electrical overhead travelling crane does not come into being. The manufacturer would undoubtedly be the owner of the component parts when he fabricated them but at no stage does he become the owner of 3 motion, electrical overhead travelling crane as a unit so as to transfer the property in it to the customer. The 3 motion electrical overhead travelling crane comes into existence only when the component parts are fixed in position and erected at the site, but at that stage it becomes the property of the customer because it is permanently embedded in the land belonging to the customer. The result is that as soon as 3 motion electrical overhead travelling crane comes into being, it is the property of the customer and there is, therefore, no transfer of property in it by the manufacturer to the customer as a chattel. [630C D, 631E H 632 A] Sentinel Rolling Shutters & Engineering Co. (P) Ltd. vs Commissioner of Sales Tax, Maharashtra, [1979] 1 SCR page 644: followed.

The assessee was running a business of plying buses and during its previous year ending on August 16, 1959, the buses had been plied for part of the year but were sold thereafter. The Income tax Officer assessed the difference between the sale price of the buses and their written down value to tax as profit under the second proviso to section 10(2) (vii). In appeal, the Appellate Assistant Commissioner rejected the assessee 's contention that the business had been transferred as a whole and therefore the profit in question could not be taxed. The Tribunal also dismissed an appeal taking the view that the buses had been plied by the assessee for part of the previous yea.r and the profit on the sale of these buses was taxable under the said provision. However, the High Court, upon a reference, held that the amount in question was not assessable as profit under section 10(2)(vii) on the assumption that the whole of the bus service business had been wound up during the relevant period. On appeal to this Court. HELD: allowing the appeal: Even on the assumption that the sale of the buses was a closing down or a realization sale it would nonetheless be taxable since the sale was made after the amendment of the second proviso. section 10(2)(vii) by Act 67 of 1949. [533 F G] According to the law laid down by this Court the view of the High Court would have been sustainable if the sale in the present case had been effected during the assessment year prior to the amendment of the proviso by Act 67 of 1949. The critical words which were inserted by that proviso namely, "whether during the continuance of the business or after the cessation thereof", must be given their proper meaning. It is quite plain that if the building, machinery or plant is sold during the continuance of the business or after the business ceases, the sale proceeds would be liable to tax in accordance with the proviso. When the legislature clearly provided that the proviso would apply even if the sale was made, after the cessation of the business, it is difficult to conceive that it was intended to exclude from the ambit of the proviso a sale made for the purpose of closing down the business or effecting its cessation. [535 F H] Commissioner of Income tax, Madras Iv. Express Newspapers Ltd., Madras, , 195; Commissioner of Income tax, Kerala vs West Coast Chemicals and Industries Ltd. ; Commissioner of Income tax, Kerala vs R.R. Ramakrishna Pillai, and The Liquidators of Pursa Limited vs Commissioner of Income tax, Bihar; , ; distinguished. Commissioner of Income tax vs Ajax Products Ltd., ; ; referred LI 3Sup. CI/68 3 532

These three groups of special leave petitions/appeals/writ petitions concern the policy and legality of the levy of Court fees under the Provisions of the Karnataka Court Fees and Suits valuation Act, 1958, the PG NO 155 PG NO 156 Rajasthan Court Fees and Suits Valuation Act, 1961 and the Bombay Court Fees Act, 1959. The petitioners from Rajasthan had challenged before the High Court the constitutional validity of the provisions of section 20 read with Article 1 Schedule 1 of the Rajasthan Act which prescribed and authorised the levy of court fees on an uniform ad valorem basis without the prescription of any upper limit. the High Court upheld the constitutionality of the impugned provision. The appeal and the special leave petitions from Karnataka are directed against the common order of the Karnataka High Court upholding the validity of the corresponding provision of the Karnataka Act which similarly imposed an ad valorem court fee without prescribing any upper limit. The writ petitions have challenged the provision directly in this Court. So far as the Bombay Act is concerned, the State of Maharashtra has come up in appeal against the judgment of the Division Bench of the Bombay High Court affirming the order of the learned Single Judge striking down the provisions of section 29(1) read with entry 10 of Schedule I of the Act in so far as they purport to prescribe an ad valorem court fee, without any upper limit, on grants of probate, letters of administrative etc., while in respect of all other suits, appeal and proceedings an upper limit of court fee of Rs.15,000 is prescribed. The High Court held this prescription of ad valorem court fee without any upper limit on this class of proceedings alone was constitutionally impermissible in that it sought to single out this class of litigants. It was contended on behalf of the petitioners/appellants that (i) the imposition of court fees at nearly 10% of the value of the subject matter in each of the courts through which the case sojourns before it reaches a finally would seriously detract from fairness and justness of the system; (11) the exaction of ad valorem fee uniformly at a certain percentage of the subject matter without an upper limit or without the tapering down after a certain stage onwards would negate the concept of e fee and part take of the character of a tax outside the boundaries of the State 's power; (111) the ad valorem yardstick, which is relevant and appropriate to taxation, is wholly inappropriate because the principle or basis of distribution in the case of a fee should be the proportionate cost of services inter se amongst the beneficiaries; (iv) in the very nature of the Judicial process, a stage is reached beyond which there could be no proportionate or progressive increase in the services rendered to a litigant either qualitatively or PG NO 157 quantitatively; (v) in the process of `adjudication of disputes before courts, judicial time and the machinery of justice are not utilised in direct proportion to the value or the amount of the subject matter of the controversy; (vi) a recognition of the outermost limit of the possible services and a prescription of a corresponding upper limit of court fee should be made, lest the levy, in excess of that conceptual limit, becomes a tax; and (vii) though India is a federal polity, the judicial system, however, is an integrated one and that therefore different standards of court fee in different States would be unconstitutional . The contentions of the State were that (i) as long as their power to raise the funds to meet the expenses of administration of civil justice was not disputed and as long as the funds raised show a correlation to such expenses, the States should have sufficient play at the joints to work out the incidents of the levy in some reasonable and practical way; (ii) it would, quite obviously, be impracticable to measure out the levy directly in proportion to the actual judicial time consumed in each individual case, hence the need to tailor some rough and ready workable basis which, though may not be an ideal or the most perfect one, would at least be the least hostile; (iii) if an upper limit is fixed and the collection fell short of what the Government intends and is entitled to collect, this would eventually result in the enhancement of the general rates of court fee for all categories; (iv) if the value of the subject matter is a relevant factor in proportioning the burden of the court fee. where the line should be drawn in applying the principle it is more a matter of legislative wisdom and preference than of the strict judicial evaluation and adjudication; and (v) courts cannot compel the State to bring forth any legislation to implement and effectuate a Directive Principle. Dismissing the appeals, writ petitions and the special leave petition, this Court, HELD: ( I) All civilised Governments recognise the need for access to justice being free. Whether the whole of the expenses of administration of civil justice also in addition to those of criminal justice should be free and met entirely by public revenue or whether the litigants should contribute and if so, to what extent, are matters of policy. [170G] (2) A fee is a charge for the special service rendered to a class of citizens by Government or Government agencies and is generally based on the expenses incurred in rendering the services. [174B] PG NO 158 The Commissioner, Hindu Religious Endowments, Madras vs Lakshmindra Thirtha Swamiar of Shirur Mutt., [1954] SCR (1) 1005 and Om Prakash Agarwal vs Guni Ray, AIR 1986 (SC) 726 referred to. (3) It is for the governmental agencies imposing the fee to justify its impost and its quantum as a return for some special services. (4) Once a broad correlation between the totality of the expenses on the services, conceived as a whole, on the one hand and the totality of the funds raised by way of the fee, on the other, is established, it would be no part of the legitimate exercise in the examination of the constitutionality of the concept of the impost to embark its effect in individual cases. Such a grievance would be one of disproportionate nature of the distribution of the fees amongst those liable to contribute and not one touching the conceptual nature of the fee. [184A B] (5) The test is one of the comprehensive level of the value of the totality of the services, set off against the totality of the receipts. If the character of the `fee ' is thus established, the vagaries in its Distribution amongst the Class, do not detract from the concept of a `fee ' as such, though a wholly arbitrary distribution of the burden might violate other constitutional limitations. [185G] Municipal Corporation of Delhi & Ors. vs Mohd . Yasin. , ; H.H. Sudhundra Thirtha Swamiar vs Commissioner for Hindu Religious & Charitahle Endowments., [1963] Supp. 2 SCR 302; Sreenivasa General Traders & Ors. vs Andhra Pradesh & Ors., ; State of ' Maharashtra & Ors. vs The Salvation Army, Western India Territorv ; Kewal Krishan Puri & Anr. vs State of Punjab & Ors. ; Secretary. Government of ' Madras, Home Department & Anr. vs Zenith Lamp & Anr. vs State of Kanataka, AI 1979 (SC) 119; The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swantiar of Sri Shirur Mutt., ; ; Om Prakash Agarwal vs Giri Raj Kishori, 730; N.M. Desai vs The Teesteels Ltd. & Anr., AIR 1980 (2) SC 2125; Lady Tanumuti Girijaprasad & Anr. vs Special Rent Acquisition Officer, Western Railway Special Civil Application No. 979 of 1970 with Special Civil Application 287 of 1967; The City Corporation of Calicut vs Thachambalath Sadasvian & Ors., , referred to. Indian Organic Chemicals vs Chemtax Fibres, Secretary, Government of Madras Home Department vs Zenith Lamp & Electrial Ltd., ILR 1968 (Madras) 247 overruled. PG NO 159 (6) Though legislative measures dealing with economic regulation are not outside article 14, it is well recognised that the State enjoys the widest latitude where measures of economic regulation are,concerned. These measures for fiscal and economic regulation involve an evaluation of diverse and quite often conflicting economic criteria and adjustment and balancing of various conflicting social and economic values and interests. It is for the State to decide what economic and social policy it should pursue and what discriminations advance those social and economic policies. In view of the inherent complexity of these fiscal adjustments, courts give a larger discretion to the Legislature in the matter of its preferences of economic and social policies and effectuate the chosen system in all possible and reasonable ways. [187G H; 188A B] East India Tobacoo Co. vs State of Andhra Pradesh, ; The State of Gujarat & Anr. vs Shri Ambica Mills Ltd. Ahmedabad, referred to. (7) The lack of perfection in a legislative measure does not necessarily imply its unconstitutionality. It is rightly said that no economic measure has yet been devised which is free from all discriminatory impact and that is such a complex arena in which no perfect alternatives exist, the court does well not to impose too rigorous a standard of criticism. under the equal protection clause. reviewing fiscal services. [189F G ] G.K. Krishnan etc. vs The Slate of Tamil Nadu [1975] 2 SCR 715 730; San Antonic Independent School Districf vs Bodriguer. 411 U.S.I. at p. 41. Income Tax Officer, Shillong & Anr. vs N. Takim Roy Rymbai etc. ; , referred to. It is trite that for purposes of testing a law enacted by one State in exercise of its own independent legishtive powers for its alleged violation of Article 14 it cannot be contrasted with laws enacted by other States. [192C] The State of Madhya Pradesh vs G.C. Mandawar, ; , referred to. (9) Having regard to the nature and complexity of this matter It is, perhaps, difficult to say that the ad valorem principle which may not be an ideal basis for distribution of a fee can at the same time be said to be so irrational PG NO 160 as to incur any unconstitutional infirmity. The presumption of constitutionality of laws requires that any doubt as to the constitutionality of a law has to be resolved in favour of constitutionality. Though the scheme cannot be upheld, at the same time, it cannot be struck down either. [192E F] (10) The State is in theory entitled to raise the totality of the expenses by way of fee. Any interference with the present yardstick for sharing the burden might in turn produce a yardstick less advantageous to litigants at lower levels. [192G] (11) The High Court has struck down the provisions of section 29(1) read with entry 10 of Schedule I of the Bombay Court Fees Act, 1959 on the ground that the levy of court fee on proceedings for grant of probate and letters of administration ad valorem without the upper limit prescribed for all other litigants is discriminatory. If in respect of all other suits of whatever nature and complexity an upper limit of Rs.15,000 on the court fee is fixed, there is no logical justification for singling out this proceeding for an ad valorem impost without the benefit of some upper limit prescribed by the same statute respecting all other litigants. [193A B; F] (12) The Directive Principles of State Policy though not strictly enforceable in courts of law, are yet fundamental in the governance in the country. They constitute fons juris in a Welfare State. [194E] U.B.S.E. Board vs Hari Shanker, AIR 1979 SC 69 referred to. (13) The power to raise funds through the fiscal tool of a `fee ' is not to be confused with a compulsion to do so.

As per the directions of the appellant and on receipt of the requisite licence under the cotton Transport Act 1923, for transport of cotton, the Bombay seller despatched cotton to the ultimate buyer mills at Madurai and sent the Railway Receipts to the appellant who endorsed the same in favour of the Mills after collection of the substantial portion of the sale price. The sales Tax authorities treated the transaction as intra sales and assessed the Mills as the last purchaser under the Madras General Sales Tax and assessed the appellant u/s 3(b) of the . The question is whether in the circumstances the transaction is one of inter state sales falling u/s 3(a) or second sales under state sales u/s 3(b) of the . The contentions of the appellant in this court were: (1) The sale of cotton by the appellant assessee to the buyer mill fell within the scope of section 3(a) of the Central Act as there was movement of goods from Bombay to Madras as a result of covenant in or incidental to the contract of sale and therefore u/s 9(1) of the Central Sales Tax the jurisdiction lay with Bombay state from where the goods moved from and (ii) Since the sale being in respect of declared goods, is exempt by the terms of notification of Order No. 3602 dated 28 12 63 issued u/s 8(5) of the C.S.T. and (ii) the turnover was exempt u/s 6(2) of C.S.T. Dismissing the appeal the court, ^ HELD: (1) The significant feature of the transaction viz. sending of the Railway Receipts by the Bombay seller to the appellant who thereafter endorsed the same to the mills, shows that (a) there could not be any unconditional appropriation of the goods at Bombay towards the contract entered into between the appellant; (b) It was an inter state sales to the appellant and the sale by the appellant to the mills is an intra state sales in as much as, the mere fact that the goods were consigned by the Bombay seller to the mills in accordance with the direction will not make the transaction inter state sales. [718G H, 719A B] (ii) The State sales Tax authorities, (respondent) had jurisdiction to assess the transaction for sale by the appellant to the mills u/s 3(b) of the Central Act. [719C] (iii) The exemption u/s 8(5) applies only to cases where the claimant had paid tax himself u/s 4 of the Madras Act in respect of local sales preceding the inter state transactions. In the instant case, as the appellant did not pay tax u/s 4 of the Madras Act, he was not entitled to claim exemption under the Government order. [719 E F] (iv) A dealer claiming exemption for subsequent sale during the movement of goods from one state to another is required by section 6(2) of the Central Act to furnish to the prescribed authority in the prescribed manner a certificate 718 duly filled and signed by the registered dealer by whom the goods were purchased containing the particulars. In the instant case, the appellant produced the form from the Bombay seller but did not prove that his buyer was a registered dealer in cotton which disentitled him to exemption u/s 6(2) of the Act. [720 B C]

The appellant company owned jute mills situated in Raigarh in the State of Madhya Pradesh, and it had to bring raw material from many railway booking stations outside the State as there was no other means of transport both for bringing jute to the mills and for carrying the finished products to ports for export to foreign countries; the jute mills in West Bengal and Madras had facilities for direct shipment of their goods without carriage by rail to the ports, and so the prices of the products of the appellant could not be brought down to the competitive level for the purposes of export out of, or sale in, India. The appellant filed a complaint before the Railway Rates Tribunal under section 41 of the Indian Railways Act, 1890, on the allegations that the Railway administration had contravened the provisions of section 28 of the Act in that it had offered special rates for certain stations in its zone to Kanpur which were cheaper than those that were charged between Raigarh and some other railway stations, and that the charges levied for the freight of the appellant 's goods were unreasonable and excessive. The Tribunal found that competition between the goods of the Kanpur mills and the appellant 's goods had not been alleged or proved in the present case Held, that the mere fact that the goods of the Kanpur mills are transported at more favourable rates would not attract the provisions of section 28 of the Act, unless there is competition between the goods of the Kanpur mills and the appellant 's goods, and undue preference has been shown by the railway administration to the appellant 's competitor. Nitshill and Lesmahagow Coal Company vs The Caladonian Railway Company, (1874) 11 Railway and Canal Traffic Cases, 39, Denaby Main Colliery Company vs Manchester, Sheffield and Lincolnshire Railway Company, , Lancashire Patent Fuel Company Limited vs London and North Western Railway Company, (1904) XII Railway and Canal Traffic Cases, 77 and Lever Brothers, Limited vs Midland Railway Company, (1909) XIII Railway and Canal Traffic Cases, 301, relied on. Held, further, that in considering the question as to the reasonableness of the railway freight the relevant factors would mainly be the working costs of the railway administration and 237 other material circumstances, and neither the geographical location of the appellant on account of which it has to incur additional expenses of transport, nor the cost incurred in producing the jute goods nor the commodity prices prevailing in the market, have any relevance.

The respondent is a manufacturer of cotton yarn and is registered as a dealer under the U.P. Sales Tax Act, 1948. This act came into force on April 1, 1948. Under this Act, sales tax was payable on sales of cotton yarn at a uniform rate of 3 pies in a rupee. Under section 3(A) of the Act the Government of U.P. issued a notification declaring that with effect from June 9, 1948, the Sales Tax would be charged at the rate of six pies per rupee in respect of sales of the cotton yam. In the present case, the assessee had opted under section 7 of the Act to be assessed on the turnover of previous year. The Sales Tax Officer held on the basis of the notification dated June 9, 1948, that the rate of three pies per rupee in respect of sales of cotton yarn was to apply in the year of assessment for the first 69 days and for the remaining part of the year the rate of six pies per rupee was to apply. The decision of the Sales Tax Officer was affirmed by the Judge (Revisions) Sales Tax. The Judge referred the case to the High Court. On reference the High Court held on the basis of its judgment in Modi Food Products Ltd. that the rate of three pies per rupee would apply for the assessment of 1948 49 because the assessee had opted under section 7 to be assessed on the basis of the turnover of the previous year. In the meantime the legislature of Uttar Pradesh by Act III of 1963 enacted section 31 which makes Sales tax exigible from an assessee who has opted to pay tax on the turnover of the previous year, as if the altered rates were in force during the previous year. The amendment is given retroactive operation and applies to assessments pending or closed. The question for consideration before this Court was whether this Amending Act would apply to the present assessment. Held:(i) The law found incorporated in section 31 by Amending Act III of 1963 would apply to the present case. This Court in giving its opinion on the question in the light of the amending Act is seeking to apply a legislative provision which was, by express enactment, in force at the time when the liability arose, for section 31 enacted by Act III of 1963 is to be deemed to have been in operation at all material times in supersession of the previous law declared by this Court in Modi Sugar Mills Ltd. 's case. This Court is, therefore, not seeking to apply any law to the question posed before the High Court which was not in force on the date of the transaction which is the subject matter of the reference Modi Food Products Ltd. vs Commissioner of Sales tax, U.P. A.I.R. 1956 All. 35 and Commissioner of Sales tax, U.P. vs Modi Sugar Mills Ltd.; , explained. 384 (ii)When the question has been referred to the High Court and in the meantime the law has been amended with retroactive operation, it would be the duty of the High Court to apply the law so amended as if it applies. By taking notice of the law which has been substituted for the original provision, the High Court is giving effect to the legislative intent and does no more than what must be deemed to be necessarily implicit in the question referred by the Tribunal, provided the question is couched in terms of sufficient amplitude to cover an enquiry into the question in the light of the amended law, and the enquiry does not necessitate investigation of fresh facts. M/s. Chatturam Horilram Ltd. vs Commissioner of Incometax, Bihar and Orissa, ; and M/s. Rampur Distillery Chemical Works Ltd. vs Commissioner of Income tax, U.P., I.T. Reference No. 362/58 dt. 17 1 64, distinguished.

ON: Cases Nos. 11 and 12 of 1950. Appeals under article 132 (1) of the Constitution of India from the Judgment and Order dated April 5, 1950, of the High Court of Judicature for the State of Punjab at Simla (Khosla J.) in Criminal Revision Nos, 1144 and 1147 of 1949. Achhru Ram (Gopal Singh, with him) for the appellant in Case No. 11. H. J. Umrigar for the appellant in Case No. 12. section M. Sikri (Advocate General of Punjab) (H. section Gujral, with him) for the respondent, the State of Punjab. M. C. Setalvad (Attorney General for India) (B. Sen, with him) for the Intervener. 1952. December 5. The Judgment of the Court was delivered by MUKHERJEA J. The facts giving rise to these two connected appeals may be briefly narrated as follows: Darshan Singh, the appellant in Case No. 1 1, and Attar Singh who is the appellant in Case No. 12, along with three other persons were tried by the Special Magistrate, Ambala, East Punjab, on charges under section 120 B of the Indian Penal Code, read with section 3/10 of the East Punjab Cotton Cloth and Yarn (Regulation of ' Movement) Order, 1947, and section 7 of the Essential Supplies Act, 1946. There wets a further charge under section, 8 of the Essential Supplies Act against three of these accused, Darshan Singh begning on of them. 321 The allegation against all the accused, in substance, was that they conspired to export 76 bags of mill made cloth to Pakistan without a permit, by smuggling them through the customs barrier near Wagha, on the morning of the 26th ,May, 1948. Wagha is., about 18 miles from Amritsar, and at a distance of nearly half a mile from this place lies the actual Indo Pakistan border. Between the customs barrier and the border there is a small Police Post and almost opposite the Police Post is the customs office which is located in a tent. The prosecution case ' is that at about 7 a. m. on the 26th of May, 1948, a truck, loaded with a large quantity of millmade cloth owned by the accused Ram Singh, arrived at the customs barrier near Wagha. Rajendra Singh, another accused, who was on duty at that time as the Customs Supervisor, allowed the truck to pass through and the truck stopped near the customs office on the side of the Police Post. As soon as the truck stopped, Darshan Singh, who was the Deputy Superintendent in charge of the customs barrier, and Attar Singh, who was a Customs Preventive Officer at Amritsar and was then under order of transfer to some other place, went to the Police Station and asked Kulraj, the Sub Inspector in charge of the same, to allow the lorry to pass through upto the border. Kulraj did not accede to this request and thereupon both Darshan Singh and Attar Singh went back to the customs tent. The truck was then unloaded and the goods were handed over to a large number of coolies who began carrying them towards the border, being followed by both Attar Singh and Ram Singh. A little later, Kailash Chandra, a Police Sub Inspector of Amritsar who was at that time on special duty in connection with checking and detec tion of smuggling cases, arrived at the place on a motor bicycle and being informed by Kulraj of what had happened before, both he and Kulraj proceeded in his motor cycle towards the border and overtook the coolies who were carrying the goods. The coolies were rounded up and brought back to the border along 322 with Attar Singh, though Ram Singh managed to Slip away. Kailash Chandra made a report of the occurrence to Inder Singh, who was the head of the Special Police Establishment at Delhi dealing with smuggling cases, and after a detailed investigation, the five accused were sent up to take their trial. The trying Magistrate convicted all of them under section 120 B of the Indian Penal Code, read with section 3/10 of the East 'Punjab Cotton Cloth and Yarn Order, 1947, and sentenced them to rigorous imprisonment for a period of one year each. Attar Singh was further convicted under section 7 of the Essential Supplies Act and Darshan Singh under section 8 of the said Act, and there was a sentence of one year 's rigorous imprisonment and a fine of Rs. 1,000 upon each one of them under these sections, the sentence of rigorous imprisonment to run concurrently with that on the previous charges. Against this judgment there was an appeal taken by all the accused to the Court of the Sessions Judge at Amritsar. The Additional Sessions Judge, who heard the appeal, acquitted two of the accused but maintained the conviction of the other three, namely, Attar Singh, Ram Singh and Darshan Singh, though their sentences were reduced. Thereupon these three persons presented three separate revision petitions to the High Court of East Punjab at Simla which were heard and disposed of by Mr. Justice Khosla sitting singly. The learned Judge dismissed the revision petitions but granted a certificate under article 132 of the Constitution on the ground that the cases involved a substantial question of low as to the interpretation of the Constitution. It is on the strength of this certificate that these two appeals have come before us, one being filed by Darshan Singh and the other by Attar Singh. No appeal has been preferred by the accused Ram Singh. The constitutional point involved in these appeals has been presented before us very lucidly by Mr. Achhru Ram who appeared on behalf of Darslian 323 Singh, the appellant in Case No. II, and his contention, in substance, is that the East Punjab Cotton Cloth and Yarn Order, 1947, which was promulgated by the Governor of East Punjab by notification dated 15th November, 1647, and under the provisions of which the prosecution was launched against the accused, was ultra vires the authority of the Governor, in so far as it purported to legislate on matters of export and import across the customs frontier, and consequently the accused could not be held guilty of any offence for having violated such provisions. For a proper appreciation of raised by the learned counsel, it would be necessary to refer to certain provisions of the Government of India Act, 1935, as well as to those of a number of later enactments. Under entries 27 and 29 of List II of the Government of India Act, 1935, " trade and commerce within the province " and " produc tion. supply and distribution of goods " were provincial subjects, while " import and export across the customs frontier " was a central subject being covered by item 19 in List I. Section 102 of the Government of India Act, 1935, gave the Central Legislature the power to legislate on provincial subjects if and when a proclamation was issued by the Governor General that a state of emergency existed in the country, and such legislation would, under sub section (4) 'of the section, cease to have effect on the expiration of a. period of ' six months after the proclamation had ceased to operate. It appears that these extraordinary powers were assumed by the Central Legislature during the period of the last war when there was a Proclamation of Emergency by the Governor General, and the Defence of India Rules promulgated during this period dealt with various ' provincial matters. The Proclamation of Emergency was revoked by the Governor General under section 102, clause (3), of the Constitution Act on 1st April, 1946, and the result of the revocation was that all orders passed on the basis of the Defence of India Act or the Defence of India Rules ceased to be 42 324 operative after the 30th of September, 1946. The (state of the country, however, was at that time far from normal and it was considered necessary that the control of the Central Legislature over the production, supply and distribution of goods should not be discontinued. To meet this situation, the British Parliament passed a temporary Act (9 and 10 Geo. 6 chapter 39) which gave the Indian Legislature, during the period specified in the Act, the power to make laws with regard to certain provincial subjects. The provision of section 2 of the Act, so far as is necessary for our present purpose, stood as follows: "(1) Notwithstanding anything in the Government of India Act, 1935, the Indian Legislature shall, during the period mentioned in section 4 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, paper, petroleum products, spare parts of mechanically propelled vehicles, coal, iron, steel and mica; ". Armed with this authority, the Indian Legislature passed the Essential Supplies (Temporary Powers) Act of 1946, sections 3 and 4 of which are in these terms: " 3. The Central Government so far as it appears to it necessary or expedient for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices may, by notified order provide for regulating and prohibiting the production, supply and distribution thereof and trade and commerce therein. * * * * 4.The Central Government may by notified order direct that the power to make orders under section 3 shall in relation to such matters and subject to such conditions,, if any, as may be specified in the direction, be exercisable also by 326 (a) * * * * (b)such Provincial Government or such officer or authority subordinate to a Provincial Government as may be specified in the direction. " By a notification dated 20th of December, 1946, issued under section 4 mentioned above, the Central Government delegated to the Governor of Punjab the powers under section 3 of the Act. On the 15th of November, 1947, the Governor of East Punjab, in exercise of the powers delegated by the said notification, passed the East Punjab Cotton Cloth and Yarn (Regulation of Movement) Order, 1947, and sections 2, 3 and 10 of the Order are material for our present purpose. Section 2 is in these terms: "In this Order unless there is anything repugnant in the subject or context, (a) " export " means to take out of the Province of the East Punjab or the said land by rail, road or river to any Province or State of the Dominions of India and Pakistan and includes taking out of the Province of East Punjab to any place, situated in the said lands as well as out of the said lands to any place situated in the East Punjab. " Section 3 runs as follows: " No person shall export or attempt to export cotton cloth or yarn except under the authority and in accordance with the conditions of a permit, issued by a permit issuing authority. . The permit shall be in form IV, specified in Schedule 'A ' annexed to this Order ". Section 10 provides: "If any person contravenes any provision of this Order, he shall be punishable with imprisonment which may extend to 3 years, with fine or both and without prejudice to any other general punishment which may be imposed by any court trying such contravention may direct that any cotton cloth and/,or yarn in respect of which the court is satisfied that this order, has been contravened together with the 326 covering and packing of such cloth shall be forfeited to His Majesty. " The point for our consideration is, whether the above provisions which prohibit inter alia the export of certain essential commodities to any country outside India without a permit and make the violation of such provisions an offence, were validly made by the Governor in exercise of the powers delegated to him under section 4 of the Essential Supplies (Temporary Powers) Act 1946 ? It is not suggested by the learned counsel that there was anything improper in the Central Government 's delegating its powers to the Governor of East Punjab under section 4 of the Essential Supplies (Temporary Powers) Act. His contention is that the Governor, in making the order, acted in excess of is delegated authority by prohibiting the export of cotton cloth and yarn to any I place outside India. Matters of export and import, it is said, were not within the scope of section 3 of the Essential Supplies and :the notification tinder section 4 could only delegate to the Governor such powers as the Central Government could itself 'exercise under section 3. Section 3 of the Essential Supplies Act, it is true, authorised the Central Government to make provisions for regulating and prohibiting the production, supply and distribution of the essential commodities specified in the Act and also trade and commerce therein; but it is argued by the learned counsel that the expression, " trade and commerce ", as used in the section, must be taken to mean trade and commerce within a province or at the most between provinces inter se, but it cannot include any transaction by way of exporting goods outside India. This interpretation, somewhat restricted as it appears to us, is sought to be supported by a two fold argument. In the first Place, it, is said, that the Essential Supplies Act, as its, Preamble shows, was passed by the Central Legislature in exercise of the authority conferred upon it by the India (Central Government and Legislature) Act, 1946, (9 and, 10 Geo. 6, c. 39) and that statute 327 conferred, only for a short period of time, a, power in the Central Indian. Legislature to legislate on certain provincial matters, which it could not do after the revocation of the Proclamation of Emergency on the termination of the war. It is said, therefore, that the Essential Supplies Act purported to deal exclusively with provincial matters, and import and export of goods outside the Indian territory, being a central subject, could not reasonably be brought within the purview of the Act. The other line of reasoning that is put forward in support of the argument is, that the intention of the Central Legis lature not to include export and import within the provisions of the Essential Supplies Act is evidenced by the fact, that the Central Legislature dealt with export and import of goods separately, and by an, altogether different set of enactments which exist side by side with the Essential Supplies Act and other legislation of the same type preceding it. It is pointed out that there was an order made under the Defence of India Rules on 3rd November, 1945, (being Order No. 91 c. w. (1) 45) imposing prohibitions on export of various descriptions of goods specified therein. The Defence of India Rules were due to expire on the 30th September, 1946. On the 26th September, 1946, the Essential Supplies Ordinance was passed and this was later replaced by the Essential Supplies Act. On the very day that this Ordinance ,was passed, another Ordinance, being Ordinance No. XX of 1946, was promulgated, which inter alia continued the provisions of the Defence of India Rules relating to prohibition and restriction of import and export of goods. Subsequently on the 26th of March, 1947, the Im ports and Exports (Control) Act was passed, which dealt comprehensively with the subject of control over exports and imports. As it would be unnatural to suppose that the legislature was legislating on the same subject simultaneously by two parallel sets of legislation existing side by side, it is argued that export and import of goods were not within the scope and intendment of the Essential Supplies Act. 328 These arguments though somewhat plausible at first sight, do not appear to us to be sound or convincing. It is a cardinal rule of interpretation that the language used by the legislature is the true depository of the legislative intent, and that words and phrases occurring in a statute are to be taken not in an isolated or detached manner dissociated from the context, but are to be read together and construed in the light of the purpose and object of the Act itself. The object of the Essential Supplies Act, as set out in the preamble, was to provide for the continuance, during a limited period of time, of the power to control the production, supply and distribution of, and trade and commerce in, foodstuffs, cotton and woollen textiles, petroleum, iron and other essential commodities, a list of which appeared in the Act itself. Section 3, which is the most material part of the Act,, authorised the Central Government, whenever it considered expedient or necessary, for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, to provide by notified order, for regulating or prohibiting, the production, supply and distribution thereof or trade and commerce therein. Keeping this object in view and reading the words" trade and commerce " in the light of the context, there appears to be no reason why these words should not be taken in their ordinary or natural sense and why restriction on the export of goods to any place outside a province, including a neighbouring foreign State should be deemed to be outside their scope and ambit. For maintenance or increase of supply of essential commodities within a province and to secure their equitable distribution and availability at fair prices, it might certainly be necessary to restrict export of the goods outside the province, and Pakistan being a foreign State abutting on the very borders of East Punjab, it was quite natural for the East Punjab Governor to mention Pakistan as one of the places to which export of goods from his province should not be allowed without a proper permit. As 329 the main object of the legislation was the continuance of control over the production, supply and distribution of commodities considered essential to the community and as these are provincial subjects, the Central Legislature in legislating on them must have to invoke the powers conferred upon it by the India (Central Government and Legislature) Act, 1946 (9 & 10 Geo. 6, c. 39) spoken of above; and that is plainly the reason why a reference to that statute was made in the second paragraph, of the preamble. But from this it cannot be argued that the Central Legislature was legislating only in exercise of the powers which it derived from the British Parliament and that it did not exercise the powers which it itself had under the Government of India Act. It is not disputed that the Central Legislature was fully competent to legislate on exports and imports which are central subjects and in making any provision relating thereto, it cannot be said that it acted in excess of its authority. Even taking the legislation to be purely on the provincial subjects of production, distribution and supply of goods, restriction of export as ancillary to production and supply of essential commodities would, in our opinion, be quite within the scope and ambit of such legislation and in pith and substance it would be an enactment dealing exclusively with these provincial matters. Looked at from this standpoint, the other argument advanced by Mr. Achhru Ram would also be found to be without any substance. The imports and Exports Act or the earlier Order and Ordinance, referred to by the learned counsel, were legislation essentially on the subject of exports and imports. Their object was to regulate or control imports and exports generally and they dealt with a large variety of articles far outnumbering those enumerated in the Essential Supplies Act. The object of the imports and Exports Act was not to regulate production and distribution of commodities considered essential to the community 330 and it was not as a means to secure that object that it purported to prohibit or restrict exporting of goods. Thus the scope and purpose of the two sets of legislation were totally different and there was nothing wrong if they existed side by the side and were in operation at one and the same time, We are not told that there was any overlapping of the provisions of these two statutes; and as the competency of the legislature to enact both these sets of provisions is not disputed, we do not think that any occasional overlapping, even if it is assumed to exist, would be at all material. In our opinion, therefore, the contentions raised in regard to the constitutional point involved in these appeals are unsupportable and could not be accepted. As the appeals have come up before us on the strength of a certificate granted under article. 132(1) of the Constitution, the appellants are not entitled to challenge the propriety of the decision appealed against on a ground other than that on which the certificate was given except with the leave of this court as provided for by clause (3) of article 132 of the Constitution. At the close of the arguments of the parties in regard to the constitutional point referred, to above. , we made it clear to the learned counsel appearing for both the appellants that we would not allow any question relating to the merits of the cases to be raised before us which turned merely on appreciation of evidence by the courts below. Mr. Umrigar, who appeared for Attar Singh the appellant in Case No. 12, however stated to us that he would crave leave to bring to our notice one important matter which, according to him, resulted in grave miscarriage of Justice at least so far as his client was concerned. He pointed out that both the Additional Sessions judge and the learned Judge of the High Court in deciding the case against his client relied upon an admission alleged to have been made by the latter that he was present at the customs barrier at Wagha on the morning of the day of occurrence and had gone there to say good bye to the customs staff, he 331 being under an order of transfer from Amritsar to Gurdaspur. It is said by the learned counsel that his client never admitted his presence at the customs barrier on the morning of 26th May, 1948, and that he neither did nor had any occasion to put forward any explanation regarding his presence there at that time. The whole thing, it is said, is based upon sheer misapprehension and is not warranted by anything appearing on the record. There is no doubt that the Additional Sessions Judge as well as the High Court did refer in their respective judgments to the alleged admission of Attar Singh and rely upon the same to arrive at their decision in the case. The Additional Sessions Judge said in his judgment: " The next important man is Attar Singh accused. He admits his presence at the barrier on that morning, when he says that he had gone to bid good bye to the customs staff on his transfer to Gurdaspur According to the leave obtained by him he had yet to remain at Amritsar till 28th and in view of illness of his wife he need not have been in hurry to go to the barrier for this purpose so soon. I am not convinced with his explanation. " The High Court in referring to the said admission observed as follows: " Attar Singh admitted that he was present at the barrier on that morning but the explanation he gave was this. His office is at Amritsar but be had received orders of transfer to Gurdaspur. His wife was ill and, therefore, he could not move immediately. So he applied for a few days leave, and on the morning of the 26th of May he went to the barrier to say goodbye to his colleagues in the Customs Department and while he was there this incident took place without his knowledge. . Attar Singh 's explanation of his presence at the spot does not convince me at all. " It appears that in course of the examination of the accused Attar Singh under section 342 of the Criminal 43 332 Procedure Code before the trial Magistrate a specific question was put to him as to whether he could explain his presence on the scene of occurrence on the 26th May, 1948, although it was alleged that he was on leave. To this question he replied categorically that he was not present as alleged. In this state of the records, we asked the learned Advocate General, who appeared for the State of East Punjab, as to when and how was the admission referred to above made by Attar Singh. The Advocate General, answered that the admission might be in the written statement which Attar Singh said he would file when he was interrogated under section 342 of the Criminal Procedure Code. In order to clear up the matter we had the further hearing of the case adjourned to enable the Advocate General to produce before us the written statement, if any, that was filed by Attar Singh in the trial court. The case was again taken up for hearing on the 26th of November last and the Advocate General frankly stated to us that no written statement by Attar Singh 'was on the records at all. It is clear, therefore, that both the courts below in coming to their decision regarding the guilt of the accused did rely to a considerable extent on the so called admission of Attar Singh which, it must be held, had no existence in fact. The Advocate General contends that even if there was an error committed by the courts below in this respect, we should nevertheless dismiss the appeal inasmuch as there is sufficient evidence to support the conviction of the accused independently of the so called admission of Attar Singh; and he invited us to examine the evidence ourselves and come to our own decision on the point. Without in any way disputing our right to adopt this course in cases where it may be considered necessary, we think that in the circumstances of the present case the proper order to make will be to direct a rehearing of the appeal by the Session& Court on the evidence as it actually stands after excluding from consideration the alleged Admission of Attar Singh. There can be no doubt 333 that the supposed admission was of a very damaging character and was highly prejudicial to the accused. It is quite,, problematic to value its effect upon the minds of the Judges in the courts below and it is difficult for us to say that had it been excluded from consideration the courts would have come to the same decision of guilt or that conversely a verdict of acquittal would have been a perverse one. In such cases, the function of this court, which is not an ordinary court of criminal appeal, is not so much to weigh and appraise the evidence again to find out the guilt or innocence of the accused as to see that the accused gets a fair trial on proper evidence. It has been argued by Mr. Achhru Ram, and in our opinion quite rightly, that if the case of Attar Singh is to be heard afresh, the same order should be made in the case of Darshan Singh as well. Not only are the two cases closely interconnected, but so far as Darshan Singh is concerned the prosecution sought to establish his complicity. in the affair primarily by adducing evidence to show that he was in the company of Attar Singh when both of them approached Kulraj, the officer in charge of the police station, and requested him to allow the truck to pass through. The Additional Sessions Judge observed in his judgment that the only motive of Darshan Singh was to help his colleague, namely Attar Singh, who was about to leave the district. It is necessary, therefore, that the case of Darshan Singh should also be reheard and the whole evidence against him reconsidered with a view to find out whether he is guilty or innocent. The result, therefore, is that both the appeals are allowed. The judgment of the High Court as well as that of the Additional Sessions Judge are set aside and the cases remitted to the Sessions Court in order that they may be heard afresh on the evidence on record in the light of the observations made above after excluding from consideration the supposed admission of Attar Singh., Pending the decision of the Session a Court, the accused would remain on bail 7 on the same terms as before. Appeals allowed. Agent for the appellant in Case No. 11: Naunit Lal. Agent for the appellant in Case No. 12: A. D. Mathur. Agent for the respondent and the intervener G. H. Rajadhyaksha.

Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, which was passed by the Indian Legislature in 1946 empowered the Central Government by notified order to provide for regulating and prohibiting the production, supply and distribution of any essential commodity and trade and commerce therein; section 4 of the Act empowered the Central Government to delegate its powers under section 3 to the Provincial Government or any officer thereof. The Governor of the Punjab to whom such powers had been delegated under section 4 passed the East Punjab Cotton Cloth and Yarn Control Order, 1947, which prohibited the export of cotton cloth and yarn to any country outside India except under a permit, and made export without permit an offence. The validity of this order was questioned on the ground that the Governor had acted in excess of his powers in so far as lie prohibited export outside India without a permit: Held, (i) that, keeping the object of the Essential Supplies Act, 1946, in view and reading the words " trade and commerce " in a. 3 of the Act in the light of the context, these words could be interpreted as including the export of goods outside the Province including a neighbouring foreign State and the Governor in passing the impugned Order did not act in excess of the powers delegated to him; (ii)that as the Central Legislature was fully competent to legislate on exports and imports and making any provision relating thereto under the Government of India Act, 1935, it had power to make a law prohibiting export to a foreign State, even &part from the powers conferred on it by the India (Central Government and and Legislature) Act, 1946 (9 320 (iii) even taking the legislation to be purely on the provincial subjects of production, distribution and supply of goods, restriction of import as ancillary to production and supply of essential commodities would be quite within the scope and ambit of such legislation and in pith and substance the enactment would be one dealing exclusively with these provincial matters. It is a cardinal rule of interpretation that the language used 'by the legislature is the true depository of the legislative intent, and that words and phrases occurring in a statute are to be taken not in an isolated or detached manner dissociated from the context, but are to be read together and construed in the light of the purpose and object of the Act itself.

The respondents in these appeals were convicted by Magistrates for offences under section 26(1) of the Indian Forest Act. Appeals were filed to the Sessions Judge, where the respondents raised the contention that the forest areas in which the alleged offences were committed were not "Reserve forests" within the meaning of the Act. For establishing that these "reserves" were "reserved forests" within the Indian Act, the appellant relied on two circumstances. First, there was a Forest Act promulgated by the Ruler of Tripura State (Act 2 of 1257 T.E. 1297 T.E. ?) which contained provisions somewhat analogous to those contained in the Indian Act. Next, section 5 of the Tripura Act enabled the State Government to declare by notifications published in the State Gazette, the boundaries of the forest areas to be governed by the State Act. Such notifications were published by which the boundaries of the reserves of the forests in question were defined. The appellant urged that the Tripura Act was replaced by the Indian Forest Act by reason of legislative provisions upon the merger of the native State of Tripura with the Dominion of India, and that the notifications under the Tripura Act which were continued in force by these same provisions rendered these reserves "Reserved forests" under the Indian Forest Act. The Sessions Judge held that by reason of these notifications the forest areas became "reserved forests" under the relevant provisions of the Indian Forest Act and dismissed the appeals. Thereafter, revisions were filed before the Judicial Commissioner, who 'differing from the Sessions Judge held that they were not "reserved forests" and directed the acquittal of the respondents. On appeal by special leave: HELD:. .(i) From the provisions of the Indian Forest Act, it would be seen that it is the notification under section 20 after complying with the procedure prescribed by the other sections of Chapter 11 commencing with section 4 that constitutes a forest area "a reserved forest" within the Act. (ii).The fact that under the Tripura Act there were no preliminaries Prescribed before a forest could be notified as a reserved forest does not detract from such a notification being a notification under the Indian Forest Act. (iii). .In substance the object and purpose of the Tripura Act was the protection of particular trees the seven types of trees specified in section 4. The notification under section 5 is for the purpose of constituting areas where These types would be protected. The penal provisions enacted are for insuring the protection of these trees. (iv) The prime purpose of Chapter II of the Indian Forest Act is the constitution of reserved forests in which (1) all private rights within the reserved area are completely eliminated by their being bought up where these are ascertained to exist by payment of compensation, (2) the entire area being devoted to siviculture, every tree in the forest being protected 160 from injury and within the scope of the penal provision contained in section 26. In other words, the reservation here is to the "forest area" as such and not the protection of the particular specified trees or species of trees in such a forest. The object of Ch. IV of the Indian Forest Act is the protection of particular trees and the setting apart of particular areas as protected forests for the purpose of ensuring the growth and maintenance of such trees. The object sought to be achieved by the reservation in Ch. IV is exactly similar to that which is sought to be achieved by the Tripura Act. Only the Tripura Act makes the cutting of protected trees even outside a forest an offence, whereas there is no such provision under the Indian Forest Act. (vi).The notification under section 5 of the Tripura Act would constitute the area in question only as a "protected" forest under Ch. IV of the Indian Forest Act and not as a "reserved" forest under section 20 contained in Ch. 11 of the Act, (vii). .The Judicial Commissioner was right in considering that the Provision.in the Indian Forest Act "corresponding" to the Tripura Forest Act under.which the notifications fixing the boundaries of these forests in question were issued was that as regards "a protected forest" under Ch. IV and not "reserved forest" within section 20 contained in Ch.

This was a petition challenging the constitutional validity of section 295A of the Indian Penal Code and for quashing the petitioner 's conviction thereunder for publishing an article in a monthly magazine of which he was the printer, publisher and the editor. It was contended on his behalf that the impugned section infringed his fundamental right to freedom of speech and expression conferred by article 19(1)(a) of the Constitution and was not a law imposing reasonable restrictions on the right in the interests of public order under cl. (2) of article 19, which alone could have afforded a justification for it. Held, that section 295A of the Indian Penal Code was well within the protection of Cl. (2) of article 19 of the Constitution and its validity was beyond question. The expression "in the interests of" occurring in the amended Cl. (2) of article 19 had the effect of making the protection afforded by that clause very wide and a law not directly designed to maintain public order would well be within its protection if such activities as it penalised had a tendency to cause public disorder. Debi Soron vs The State of Bihar, A.I.R. (1954) Pat. 254, referred to. It was absurd to suggest that insult to religion as an offence could have no bearing on public order so as to attract cl. (2) Of article 19 in view of the provisions of articles 25 and 26 of the Constitution which, while guaranteeing freedom of religion, expressly made it subject to public order. 861 Nor, having regard to the language and ingredients of section 295A of the Indian Penal Code, could it be contended that the restrictions imposed by it could be used for purposes other than those falling within the limits of the Constitution. Romesh Thappar vs The State of Madras, ; ; Brij Bushan vs The State of Delhi, ; and Chintaman Rao vs The State of Madhya Pradesh, (1950) S.C.R. 759, held inapplicable.

The appellant Ram Chander and Mange were tried by the learned Additional Sessions Judge, Jind, for the murder of Dunni. Both were convicted under section 302 read with section 34 Indian Penal Code and sentenced to imprisonment for life. On appeal the High Court acquitted Mange but confirmed the conviction and sentence of Ram Chander. In appeal by special leave it was contended that the conviction and sentence were vitiated as the principle of fair trial was abandoned by the Sessions Judge who rebuked the witnesses and threatened them with prosecution for perjury and based his conviction on such extorted evidence. Allowing the appeal, the Court ^ HELD: 1: 1. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. The Court has wide powers and must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant". But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten, coerce, confuse, intimidate or bully witnesses. He must take the prosecution and the defence with him. The Court. the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, "like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old. " F] Sessions Judge, Nellore vs Intna Ramana Reddy and Anr. , I.L.R. , approved. Jones vs National Coal Board, ; , quoted with approval. In the instant case, the questions put by the learned Sessions Judge, particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecution for perjury were certainly intimidating, coming as they did from the presiding judge. In an effort to compel 13 the witnesses to speak what he thought must be truth, the learned Sessions Judge, very wrongly, firmly rebuked them and virtually threatened them with prosecutions for perjury. He left his seat and entered the ring. The principle of "fair trial" was abandoned. [19 F H] 2. The Evidence Act contains detailed provisions dealing with statements of persons who cannot be called as witnesses and former statements of persons who are called as witnesses. These provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with reference to the former statement of another witness on the ground that such former statement renders the evidence highly probable or improbable. Even assuming that under certain circumstances it is permissible to use the first information report under the first part of section 11 there is in the present case no question of invoking the first part of section 11, which is inapplicable since the first information report is now not sought to be used as being inconsistent with the prosecution case. Nor can first information report be used by resort to the second part of section 11. [20 H 21 A; 20 F G] Ram Kumar Pande vs The State of Madhya Pradesh, ; @ 522, discussed.

On a complaint being filed under section 120(b) read with ss.467 and 471 of the Indian Penal Code, the Metropolitan Magistrate summoned the appellant and thereafter rejected his objection about the maintainability of his prosecution for want of sanction under section 197 of the Criminal Procedure Code, holding that section 197 does not apply because the appel lant is an officer who is removable from his office by a competent authority and no sanction of the Government is necessary. This view was affirmed by the High Court. In the appeal to this Court, on behalf of the appellant it was contended: (i) that after the nationalisation of the Department of the appellant he will fall within the defini tion of public servant and, therefore, section 197 will be at tracted and (ii) that although the competent authority who can remove the appellant from service is not the Government, but it has been empowered under the regulations framed under the Act of Parliament with the approval and sanction of the Central Government and, therefore, the view taken by the Courts below is not correct. Dismissing the Appeal, HELD: It is clear that section 197 of the Criminal Procedure Code is attracted only in cases where the public servant is such who is not removable from his office save by or with the sanction of the Government. [219B] In the instant case, it is not disputed that the appellant is not 217 holding a post where he could not be removed from service except by or with the sanction of the Government. In this view of the matter even if it is held that appellant is a public servant still provisions of section 197 are not attracted at all. Therefore, the view taken by the Courts below could not be said to be erroneous. [219D]

In response to an advertisement dated 25th June, 1974 issued by the State Transport Authority, Orissa inviting applications in the prescribed forms, from the operators for all India Tourist Permit, a number of intending operators including the appellants submitted their applications and at the meeting held on February 2, 1975, the State Transport Authority granted to the appellants all India Tourist Permits for omnibus with passenger capacity not exceeding 29. Some of the applicants who failed to obtain a permit filed three appeals being M. V. Appeals Nos. 15, 16 and 17 all of 1975 to the State Transport Appellate Tribunal under sec. 64 (2) of the . The Appellate Tribunal dismissed all the appeals and confirmed the order made by the State Transport Authority granting all India tourist permits to the appellants. Three unsuccessful applicants for permit filed three writ petitions styled as C.J.C. No. 381, 182 and 881, all of 1976 questioning the correctness of the order granting the permit and dismissal of their appeals in the High Court of Orissa. A Division Bench of the High Court, by a common judgment, allowed all the three writ petitions quashing and setting aside the order of the State Transport Authority. Consequently, these appellants surrendered their permits. Hence these three appeals by special leave. During the pendency of these appeals The appellants were granted temporary all India tourist permits in compliance with the interim orders made by the Court. Allowing the appeals, the Court 2 ^ HELD: 1.1 It was not necessary that the applicants for an all India tourist permit must have a pre existing contract carriage permit which could be endorsed so as to convert it into all India tourist permit [11 B C] 1.2 By introducing sub section 7 in section 63 of the the concept of all India permit to be granted by a State Transport Authority of a State within the limits of the quota prescribed by the Central Government which would enable the holder of the permit to operate in the whole of India, was introduced, for the first time with effect from 1st October, 1970. The underlying object for creating this new class of permit was to promote tourism and to remove the barrier caused by the earlier system under which if a tourist vehicle is hired by a tourist party for moving from State to State, the vehicle cannot be taken to another State from the place of commencement of journey unless a valid contract carriage permit of that State is obtained or the existing permit is counter signed. [6G H, 7A B] 1.3 An Application for an all India tourist permit has to be processed in accordance with the provisions of sections 49, 50, 51, 57, 58, 59, 60, 61 and 63 (7). An all India tourist permit is primarily a contract carriage permit but while the ordinary contract carriage permit can be granted by the Regional Transport Authority, for operation within local jurisdiction, or when counter signed by Regional Transport Authority of adjacent area in more than one such jurisdiction but not at any rate outside the State and not in any case on an all India basis. To this extent, an ordinary contract carriage permit differs from an all India tourist permit but an all India tourist permit is none the less a contract carriage permit. Sub section (7) Of section 63 on the other hand confers power on the State Transport Authority to grant an all India tourist permit which in effect is a contract carriage permit but which permits plying of tourist vehicle throughout India. Even for obtaining such a permit, section 51 will apply with this modification that the application for all India tourist permit has to be made to State Transport Authority of the State in which their permit is sought. This scheme of law nowhere expressly or by necessary implication suggests that an applicant for an all India tourist permit must of necessity or as a prerequisite have a contract carriage permit which alone can be endorsed for the purpose of all India operation. Sub section (7) of section 63 if read thus would render nugatory the affirmative provision that on a proper application being made and legally processed, the State Transport Authority can grant an all India tourist permit. [6D, 7E H, 8C D] 1.4 The fact that an application for an all India tourist Permit has to be made under section 49 which prescribes procedure for obtaining a contract carriage permit, because in substance an all India tourist permit is none the less a contract carriage permit but with a much wider area of operation, however, does not permit an inference that before obtaining an all India tourist permit, the intending operator must obtain a contract carriage permit from the Regional Transport Authority and then get it endorsed from the State Transport Authority to make it valid for the whole or any part of India. Sub section (7) of section 63 does not speak of any 3 endorsement on permit, though endorsement may be another mode of enlarging the area of operation It speaks of granting a permit valid for the whole or any part of India when granted by a State Transport Authority in exercise of The power conferred by sub section (7) of section 63 without any further endorsement of any other authority [8E H] 2. Sub Rules (2), (3) and (4) of Rule 3 of the Orissa Tourist Vehicles Rules, 1967 had absolutely no application to the proceedings of the State Transport Authority held for consideration of applications for all India Tourist Permit and granting them to the appellants. These Rules were enacted in the year 1967 in exercise of the power conferred by section 68 of the and were brought into operation on 19/20 June, 1967. These rules were made at a time when the only way to enlarge the area of operation in respect of a permit was by endorsement by various authorities on the original permit granted by a Transport Authority. All India tourist permit was not conceptualized by the time 1967 Rules were framed. Therefore, the rules at the relevant time catered to a situation When the area of operation specified in a contract carriage permit could be enlarged by endorsement by authority other than the grantor only. [9F H; 10A] 3. The applications of the appellants with all relevant information were complete and the blanks in their application forms were irrelevant. In the advertisement issued by the State Transport Authority on June 24, 1974 inviting applications for permits in respect of omnibus authorising it to ply as an all India tourist vehicle in the prescribed forms, two prescribed forms were annexed. The first form was meant for those who had no existing contract carriage permit and were applying straightaway for the first time for an all India tourist permit. The form itself shows that the application had to be made to the State Transport Authority for a contract carriage permit with an all India operation. There was another form which catered to the needs of the holder of the existing contract carriage permits who wanted the area of operation to be enlarged by converting an ordinary contract carriage permit into all India tourist permit. For a fresh applicant like the appellants who had no existing contract carriage permit, therefore, the blanks could not have been filled in. [10F H; 11A]

The appellant, who was less than 20 years was convicted for an offence under section 7(1) of the , and was ordered to furnish a bond under section 4 of the . The High Court revised the sentence, because section 16 of the Prescribed a minimum sentence of imprisonment for 6 months and a fine of Rs. 1000. Allowing the appeal to this Court, HELD : Section 4(1) of the contains the non obstante clause notwithstanding anything contained in any other law for the time being in force, and hence the section would have overriding effect and shall prevail if its other conditions are fulfilled; especially when the was enacted in 1958 subsequent to the enactment in 1954 of the . [317 A C; 318 D E] According to section 18 of the , that Act shall not affect section 5(2) of the Prevention of Corruption Act which also prescribes a minimum sentence of imprisonment. The fact that only one offence for which a minimum sentence of imprisonment is prescribed, has been specified shows that in the case of other such offenses, the provisions of the can be invoked [317H; 318 A C] Assuming there is some ambiguity, the principle to be applied in construing a penal statute is that such doubt should be resolved in favour of the person who would be liable to the penalty. [318 D] Adulteration of food is a menace to public health and the has been enacted to eradicate the evil. Therefore, courts should not lightly resort to the provisions of the probation of Offenders Act in the case of persons above 21 years of age; but the Act makes a distinction between offenders below 21 years and those above that age. As regards person under 21 years, the policy of the law is that such a person, even in the case of conviction under the , should not be deprived of the advantage of the which is a beneficent measure and reflects and incorporates the modern approach and latest trend in penology. [318 G H; 319 A C] As the object of the is to avoid imprisonment of a person covered by its provision, ,, that object cannot be set at naught by imposing a sentence of fine which would entail imprisonment in case of default. [319 D] Rattan Lal vs State of Punjab ; and Ramji Missir vs State of Bihar [1962] Supp. 2 S.C.R. 745, referred to. 313

The appellant was in the permanent service of the Assam Government but his services were lent to the Central Government. At the relevant time, i e , December 1945 to September 1946, he was posted at Kanpur as Deputy Iron & Steel Controller. In connection with the granting of permits to certain persons charges under sections 120B, 161, 165 and 467 Indian Penal Code, and under r. 473(3) read with r.472, Defence of India Rules were leveled ' against him. Sanction for his prosecution was granted by the Central Government on January 31, 1919, and a charge sheet was submitted against him. On March 1, 1952, the appellant was committed to the Court of Sessions for trial. The trial commenced on May, 7, 1953, and the Sessions judge convicted the appellant of all the charges. On appeal the High Court upheld the conviction under sections 161 and 467 Indian Penal Code and set aside the conviction on the other charges. The appellant contended (i) that the trial by the Sessions judge was illegal as after the coming into force of the Criminal Law Amendment Act, 1952, on July 28, 1952, he could only be tried by a Special judge, and (ii) that the sanction granted by the Central Government was invalid and of no avail as sanction for the prosecution of the appellant could only be granted by the Assam Government in whose permanent employment the appellant was. Held, that the Sessions Judge had jurisdiction to hold the trial and it was not required that the appellant should have been tried by a special judge. Though s.7 of the Criminal Law Amendment required all offenses under sections 1 61 and 165 Indian Penal Code to be tried by a Special judge, the section was only prospective and did not provide for transfer of all pending cases. Under s.10 of the Act only such cases triable by a Special Judge under s.7as were ac tually pending before any Magistrate immediately before 122 the commencement of the Act could be transferred to the Special judge. The case against the appellant having already been committed to the Sessions was no longer pending before the Magistrate. The mere fact that the Magistrate still had power, under s.216 of the Code of Criminal, Procedure to summon witnesses for the defence and bind them to appear before the Court of Sessions, did not imply that his jurisdiction to deal with the merits of the case continued. Held, further that though the sanction granted by the Central Government was a good sanction under section 197 of the Code of Criminal Procedure it was not a valid sanction under s.6 of the Prevention of Corruption Act. At the time when the sanction was granted the appellant was in the permanent employment of the Assam Government but he was employed in the affairs of, the Federation. Under s.197, in cases of persons employed in connection with the affairs of the Federation the Governor General was the authority to grant the sanction and in cases of persons employed in connection with the affairs of the States it was the Governor. Under s.6 of the Corruption Act the position was different. Clauses (a) and (b) of the section dealt with persons permanently employed in connection with the affairs of the Federation or of the Provinces and in regard to them, the appropriate authorities were the Central Government and the Provincial Government. The word "employed" in cls.(a) and (b) referred to employment of a permanent character. The case of a public servant whose services were loaned by one Government to another fell under cl.(c) under which sanction could be ranted by the authority competent to remove him from his service. The authority competent to remove the appellant from his service was the Assam Government and that Government alone could have granted a valid sanction for the prosecution of the appellant. Accordingly the trial of the appellant for offenses under sections 161 and 165 was without jurisdiction. Held, further that the convinction of the appellant for the offence under s.467 could not stand as it was based entirely upon the uncorroborated testimony of accomplices.

Appeal No. 167 of 1960. Appeal from the judgment and order dated July 16, 1956 of the Assam High Court at Gauhati in Civil Rule No. 128 of 1954. A. V. Viswanatha Sastri and Naunit Lal, for the appellant. The Respondents did not appear. April 14. The Judgment of the Court was delivered by HIDAYATULLAH, J. This appeal has been filed by the State of Assam against a judgment of the High Court of Assam dated July 16, 1956. By the judgment under appeal, the High Court held that section 15 of the Assam Sales Tax Act, 1947, and Rule 80 framed under the Act were ultra vires, being a breach of article 286(2) of the Constitution. The High Court granted a certificate under article 132(1) of the Constitution. R. C. Dey, the answering respondent, is a wholesale dealer in tea, and has been in business since 1949. He registered himself as a dealer under the Assam Sales Tax Act on January 14, 1950. His business consists mainly of buying tea in Assam and selling it either in Assam or in Calcutta. In respect of tea sold in Calcutta, R. C. Dey consigns the tea to himself after purchasing it in Assam. This tea is then approved by prospective purchasers, to whom the documents of title are endorsed on receipt of the price. In 1951, the Assam Sales Tax Act was amended by the Assam Sales Tax (Amendment) Act, 1951 (4 of 1951). Section 15 of the Act before the amendment provided that in calculating the net turnover of a registered dealer for tax purposes all sales made to another registered dealer of goods specified in the latter 's certificate of registration were to be excluded from the gross turnover, if the goods were bought for resale. By the amendment in 1951, the section was amended by the addition of the words "in the State" after the word "resale". Thus, in calculating the net turnover of a registered dealer, the goods intended 988 for resale in the State could alone be excluded from the gross turnover. This amendment was followed by amendment of the Rules. Rule 80 was enacted to provide as follows: "80. (1) A dealer who wishes to deduct from his gross turnover the amount of sales on the ground that he is entitled to make such deductions under clause (b) of sub section (1) of section 15 shall, on demand produce in respect of such sales the copy of the relevant cash memo or bill according as the sale is a cash sale or a sale on credit, and a true declaration in writing by the purchasing dealer or by such responsible person duly authorised by the purchasing dealer in this behalf that the goods in question are specified in the certificate of registration of such dealer. (2) For purposes of this rule, the declaration shall be in the following form: I/We hereby declare that I/We have purchased the goods herein mentioned for the purposes for use in the manufacture of goods for sale in the State, or for use in the execution of a contract in the State or for resale in the State, and further declare that these goods have been specified in/our certificate of registration bearing No in the District of R. C. Dey filed a petition under article 226 of the Constitution, challenging the amendment and the Rule, and contended that they offended against article 286(2) and Part XIII of the Constitution, and were thus ultra vires. He also submitted that the amendment and the Rules were void as offending article 19 (1)(g). The last submission was given up in the High Court, and the objection about Part XIII of the Constitution, which was decided against him, must be taken to have been abandoned, because none appeared on his behalf to urge this point. We need not refer to article 19 or Part XIII of the Constitution. The High Court upheld his contention about article 286(2). In the High Court, separate judgments were delivered by the learned Chief Justice and Ram Labhaya, J. They both agreed that section 15, as amended, and the Rule were ultra vires article 286(2). The reasons given 989 by the learned Judges were different. According to the Chief Justice, the amendment and the Rule had the effect of taxing sales in the course of inter State trade or commerce and were, therefore, illegal. Ram Labhaya, J., held that the sale to R. C. Dey and the sale by him in Calcutta were separate sales, and that the first sale was not in the course of inter State trade or commerce, and was taxable. He, however, held that though by section 3, which is the charging section, sales in the course of inter State trade or commerce were excluded from the ambit of the Act, this section remained only "a pious declaration", because its effect was not incorporated in the machinery section, namely, section 15. According to the learned Judge, what was taxable under the Act was the net turnover of a registered dealer. The machinery section showed how the net turnover was to be ascertained, and it provided that to arrive at the net turnover, certain deductions could be made from the gross turnover. In the original section, anything which was sold for resale was so excluded; but by the amendment, the exclusion was only in respect of the sale of goods for resale in the State. According to the learned Judge, if sales which did not lead to resale in the State were not excluded from the gross turnover, then the not turnover would comprehend such sales and, therefore, there was a taxation of sale of goods in the course of inter State trade or commerce. Putting it briefly, while the learned Chief Justice felt that the, amendment and the Rule directly affected inter State trade or commerce, Ram Labhaya, J., held that they affected inter State trade or commerce indirectly, inasmuch as sales outside the State were not excluded from the gross turnover. We shall take up these two points separately. III so far as the decision of the Chief Justice is concerned, the point has been before this Court in another case. In Endupuri Narasimham & Son vs State of Orissa and others (1), a similar question had arisen in connection with the Orissa Sales Tax Act, 1947. In dealing with transactions such as these, this Court pointed out that only sales which affected inter (1) ; 990 State trade or commerce directly and were an integral part thereof, were saved under article 286(2). On that Occasion, reference was made to all the authorities of this Court which had discussed the question from the angle of article 286(1) of the Constitution, and it was pointed out that the same reasoning applied also to article 286(2). It was observed in the case as follows: "The argument on behalf of the petitioner is that, as the goods were purchased for the purpose of being sold to dealers outside the State, and they were, in fact, so sold, the purchases were in the course of inter State trade, and the levy of tax thereon was within the prohibition enacted by article 286(2). We do not agree with this contention. The transactions of sales which have been taxed were wholly inside the State of Orissa. They were sales by persons in the State of Orissa to persons within the State of Orissa of goods which were in Orissa. The fact that the purchaser sold those very goods to dealers outside the State is not relevant, as those sales are distinct and separate from the sales on which the taxes in question have been im. posed. The present levy is not on the sales by the petitioner to persons outside the State, but on the purchases by him inside the State. The former sales are in the course of inter State trade, and are not taxable under article 286(2), but the latter are purely intrastate sales, and tax imposed thereon does not offend article 286(2). " These observations are entirely applicable in the context of the facts, as are to be found in this appeal. Indeed, all that is necessary to apply the above passage to the facts of this case is to substitute "Assam" in the place of "Orissa". In our opinion, this point must be held to be concluded against the respondent. That leaves over for consideration the reasons given by Ram Labhaya, J., in his concurring judgment. Section 3 of the Act which created a liability to tax, was amended by Act 4 of 1951 by the introduction of sub section (1)A in that section. That sub section reads as follows: "(1)A. Nothing in sub section (1) shall, except in cases covered by the first proviso to sub section (12) of section 2 of this Act, be deemed to 991 render any dealer liable to tax on the sale of goods where such sale takes place: (i) outside the State of Assam; (ii) in the course of the import of the goods into, or export of the goods out of, the territory of India; or (iii) in the course of inter State trade or commerce except in so far as Parliament may by law otherwise provide. " The introduction of sub section (1)A did no more than repeat in the Act the prohibition contained in article 286. The first two clauses of this sub section reiterate the prohibition contained in article 286(1), and the third clause reiterates the prohibition contained in article 286(2) of the Constitution. The first proviso to section 2(12), which is referred to in sub section (1)A, enacts the Explanation to cl. (1) of article 286. Now, it is quite clear that from the operation of the charging section sales of a particular character are kept out. This provision saves from taxation all those transactions which, if they were taxed, would have fallen within the ban of article 286. The effect of this saving is to make such transactions immune from taxation, and no further amendment of the law in the machinery section was necessary. What section 15 does, is to grant an additional exemption in respect of sales in which the goods, though sold to a registered dealer, are meant for resale in the State, itself. It is quite easy to see that unless this exemption was granted, it was possible that there would have been sales tax at more than one point, namely, at the point at which the first registered dealer sold to the second regis tered dealer and again, when the second registered dealer sold in his turn. To avoid taxation at multiple points on transactions of sale of the same goods within the State, it was provided that the tax shall be paid only on the last sale and not on the previous sales, so long as the previous sales were from registered dealers to registered dealers in respect of goods mentioned in the registration certificate of the latter and provided the goods were for resale in the State. When the charging section itself excluded taxation of sales in the course of inter State trade 992 or commerce, it was hardly necessary to look for a repetition of the same exemption in the machinery section. It is an error to think that because the machinery section, namely, section 15, does not repeat the exemption given by the charging section, the turnover of a dealer would necessarily include the sales in the course of inter State trade or commerce. Even if the net turnover did, so include such sales, the dealer would, under sub section (1)A of section 3, be able to claim that those transactions were not taxable, because they fell within the ban of article 286(2) as well as section 3(1)A (iii) of the Act. What has already been excluded by the operation of the Constitution and the Act cannot become taxable, because the net turnover has to be calculated in a particular manner. From that net turnover, such sales must be excluded by the operation of article 286(2) and section 3(1)A of the Act. In our opinion, the ban of article 286(2), which is again reenacted by section 3(1)A, makes it incumbent that the sales falling within those previsions should be excluded from the net turnover. Reference was made to sub section (2) of section 3, and it was said that sub section (2) stated that every dealer to whom sub section (1) did not apply, shall be liable to be taxed under this Act, and that there was no mention of subs. (1)A there. No doubt, sub section (2) does not mention sub section (1)A; but sub section (1)A is not rendered ineffective by the omission. Sub section (1)A speaks of its own force, and has to be given effect to, along with the remaining sub sections of section 3. Sub section (1)A has the added support of article 286, and the Constitution must prevail. Thus, both article 286 and sub section (1)A of section 3 are there to save from taxation all sales in the course of inter State trade or commerce, and there is no need to look further into the Act to see whether they are exempted once again or not. In our opinion, the appeal must succeed. The decision of the High Court under appeal is set aside, and the petition is ordered to be dismissed with costs here and in the High Court. Appeal allowed.

Section 15 of the Assam Sales Tax Act, 1947, as originally enacted, provided that in calculating the net turnover of a registered dealer for tax purposes, all sales made to another registered dealer of goods specified in the latter 's certificate of registration were to be excluded from the gross turnover, if the goods were brought for resale. In 1951, the section was amended by the addition of the words "in the State" after the word " resale", as a result of which the exclusion was confined only to sales of goods for resale in the State. Rule 80 was framed to give effect to the amendment. The petitioner, a registered dealer in Assam, and whose business consisted mainly of buying tea in Assam and selling it either in Assam or in Calcutta, chal lenged the legality of the amendment on the ground that the result of the amendment was that tax could be levied on interState sales and that, therefore, it contravened article 286(2) of the Constitution of India. Held: (1) that a sale of goods to a dealer within the State who purchased them for the purpose of selling them to dealers outside the State, and who, in fact, so sold them, would not make it a sale in the course of inter State trade as the two sales were distinct and separate. The first sale was an intra State sale and a tax imposed thereon did not offend article 286(2) of the Constitution. Endupuri Narasimham vs State of Orissa, ; , followed. (2) that section 15 of the Assam Sales Tax Act, 1947, and Rule 80 framed under that Act were not ultra vires article 286(2) of the Constitution. The object of section 15 of the Act was to avoid taxation at multiple points and the amendment to that section in 1951 or Rule 80 did not enable the levy of tax on sales in the course of inter State trade twice. Such sales were expressly saved from tax by the operation of article 286(2) and section 3(1)(A)(iii) of the Act. Once those sales were outside the charging section there was no need to re enact that prohibition in section 15 which was a machinery section and would stand cut down by the limitation placed by the charging section and the Constitution. 987

The constituent members of the appellant Association, who carried on business in iron and steel articles were assessed to sales tax for the years 1953 54 and 1954 55 under a notification dated October 24, 1953, issued by the State of Madhya Bharat under section 5(2) of the Madhya Bharat Sales Tax Act, Samvat 2007, (Act No. 30 of 1950). The appellant moved the High Court under article 226 of the Constitution challenging the validity of the assessment on the ground that the said articles were covered by the declaration made by Parliament by section 2 of the Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act, 1952, that iron and steel were essential commodities within the meaning of article 286(3) of the Constitution which was operative from August 9, 1952. The High Court found against the appellant. Held, that even assuming that the words "iron and steel" in Entry 14 of the Schedule to the Act were comprehensive enough to include articles made of iron and steel, that would not necessarily render the notification invalid under article 286(3) of the Constitution. Article 286(3), as it stood before the Constitution (Sixth Amendment) Act, 1956, could be successfully invoked only if three conditions were satisfied, (1) that the impugned legisla. tion was one by the Legislature of a State, constituted under the Constitution, (2) that it was subsequent to the declaration made by the Parliament as to the essential character of the commodity and (3) that it could be, but was not, reserved for the President 's consideration and assent. It was obvious, therefore, that a subsequent Parliamentary 925 declaration could not affect the validity of an enactment retrospectively. Sardar Soma Singh vs The State of Pepsu and Union of India, ; and Firm of A. 'Gowrishankar vs Sales Tax Officer, Secunderabad, A. I. R. , referred to. Although the Art, tinder which the impugned notification was made, satisfied the first condition, it did not satisfy the second or the third and, consequently, its validity could not be questioned under article 286(3) of the Constitution. Held, further, that it was apparent from section 3 of the Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act, 1952, that if a law had been passed prior to the commencement of the Act authorising the imposition of a tax its validity could not be challenged on the ground that the said commodity was subsequently declared by the Act to be essential for the life of the community. The impugned notification and the State Act under which it was made were, therefore, outside the purview of section 3 of the Act.

One W owned several tea, coffee and other. plantations. In 1927, he formed a limited company and conveyed his estates to the company. All the shares of the company were held by him and the members of his family. The company borrowed Rs. 10 1/2 lakhs from the Imperial Bank of India 'against the issue of debentures secured by an English mortgage. The loan was repayable on March 15, 1937. In default of payment within November 15, 1937 the trustee under the debenture trust deed was authorised to enter into possession of the estates and sell them. The appellant company was appointed as the secretary of the company. Since 1931, the family was keen on selling the estates, but none of the offers materialised. In 1936, there was a slump in tea and coffee prices and there was a possibility of a further slump. The Bank was pressing for the payment of its dues and the company was not in a position to liquidate the debt without selling the estates. The family 'tried unsuccessfully to raise loans. In the beginning of November 1937, the family had a firm offer from A.L. & Co. for the purchase of all the estates for Rs. 14 lakhs, but the family wag anxious to retain one of them. The appellant company offered Rs. 10 lakhs for all the estates excluding the estate which the family wanted to retain. The family knew that this estate, if sold separately, would not fetch more, than Rs. 2 lakhs and yet they chose to retain it and to accept the appellant 's offer. At a meeting all the shareholders (members of the family) unanimously accepted the, proposal. There all sui juris and had business acumen. They knew the value of he properties and accepted Rs. 10 lakhs as a just and fair price. The offer enabled them to retain the estate which they wanted to retain and at the same time enabled them to liquidate the Bank 's dues. They had legal advice and the documents were in proper legal form. The meeting was also attended by the chairman of the company and the director nominated by the Imperial Bank. After the transfer, the company went into voluntary liquidation and it stood dissolved on March 1, 1940, under section 209 H of the Companies Act, 1913. The appellant took possession of the properties on January 10, 1938 and promoted a new company to which the properties were transferred by conveyances dated January 14, 1939 and May 15, 1939 50 % of the shares of the new company were held by the appellant company which managed and controlled the new company. The members of the family made no complaint about 'the transaction for 12 years, but, on December 21, 1950, they instituted a suit against the appellant and others alleging that the old company had not been wound up in accordance with law and was still in existence, that the old company was the real owner of the properties and the new company held them in trust for the old 204 company, that the appellant took advantage of its fiduciary capacity and gained pecuniary advantage and that the various sales and conveyances were vitiated by fraud, and prayed for 'a decree vesting or retransferring the properties to the old company or the family. The trial court dismissed the suit, but the appeal to the High Court was allowed in part. In appeal to this Court, on the, questions : (1) (a) Whether there was a fiduciary relationship between the appellant and the old company, and (b) Whether the appellant gained a pecuniary advantage by availing itself of the fiduciary character; (2) Whether the suit was barred by limitation; and (3) Whether the members of the family as shareholders of the old company were entitled to maintain the suit, HELD : (1) (a) The appellant company was the secretary of the old company, was in charge of its correspondence and accounts and was actively engaged in assisting it and its share holders in selling the estates. In the course of such employment it acquired intimate knowledge of the income, prospects and market value of the properties. Therefore, the appellant stood in a fiduciary relationship towards the old company and was bound to protect its interests. Having regard to its fiduciary character, the appellant should have avoided entering into the transaction. [209 B D; 211 D] (b) But, there is no rule, which incapacitates a trustee from dealing with a cestui que trust, provided there was no fraud and no advantage was taken by the trustee of any information acquired by him in the character of a trustee. The onus, however, is upon the trustee to establish affirmatively that the transaction was righteous and that he did not gain any pecuniary advantage by availing himself of his fiduciary character. in the present case, the appellant had discharged this difficult onus. The transaction was just and fair and the appellant did not gain any pecuniary advan tage by availing itself of its fiduciary character, nor was there any conflict between its own interests and those of the old company. , No advantage was taken by the appellant of any information acquired by it in its character as secretary and, the circumstances ,how that there was no fraud, no concealment and no undue influence. The long acquiescence of the members of the family in the sale is also evidence that the transaction was fair in all respects. E; 211 E D] Coles vs Trecothick, ; , 247; ; , 597 and Parks vs White, , 226; , 1074, applied (2) The suit was barred by limitation. [212 D] A suit by a beneficiary, claiming recovery of possession from the trustee is governed by article 120 of the Limitation Act, 1908. The plaintiffs had not established fraud and consequently article 95 of the Limitation Act has no application. Section 10 of the Act also does not apply, because, the properties were not vested in the new company for the specific purpose of making them over to the old company or to the plaintiffs. In the plaint there was no prayer for recovery of possession. The old company could not ask for recovery of the properties until they obtained a reconveyance from the new company. The suit is not there fore governed by article 144 of the Limitation Act and since the ' period under article 120 is 6 years from the date of cause of action and the cause of action in the present case arose in 1939 when the conveyances were executed, the suit was barred. [211 F H] 205 Rani Chhatra Kumari Devi vs Prince Mohan Bikram Shah, L.R. 58 I.A. 279, applied. (3) The plaintiffs were not entitled to maintain the suit. [216 C] As the plaintiffs failed to establish any fraud affecting the dissolution of the company, the dissolution has put an, end to its existence. On the dissolution of the company, its properties, if any, Vested in the Government The right of the Government to take by escheat for want of an heir or successor or as bona vacantia for want of a rightful owner has been recognised in our country. The various Government of India Acts and the Constitution show that the Government takes by escheat immovable as well as movable property for want of an heir or successor. It is an incident of sovereignty and rests on the principle of ultimate ownership by the State of all property within its jurisdiction. Unlike the law in the United States, winding up 'under the Indian Law precedes dissolution and there is no statutory provision vesting the properties of a dissolved company in a trustee or having the effect of abrogating the law of escheat. The shareholders or creditors of a dissolved company cannot be regarded as its heirs or successors. Therefore, the Government took by escheat or as bona vacantia all properties of a company dissolved under the, Indian Companies Act,. 1913, except in so far as its right was cut down by that Act. Accordingly, the shareholders or creditors of the dissolved company cannot maintain arty action for recovery of its assets As the company was not a party and the assets could not be restored to its coffers, no effective relief could be given in such an action. D E; 214 C D, F; 215 B C; 216 A B] Collector of Masulipatam vs C. Vencata Narainapah, 8 M.I.A. 500, 525, in re. Wells , 49, Coxon vs Gorst, and In re. Lewis and Smart Ltd. , applied. Bombay Deying and Manufacturing Co. vs State of Bombay, ; , 1146 and Legal Remembrancer vs Corporation of Calcutta; , , 204, followed. In re. U. N. Mandal 's Estate, A.I.R. 1959 Cal. 493, 498, approved.

The first respondent B purchased a Touzi in 24 Parganas Collectorate at a revenue sale held on 9th January, 1942. As such purchaser he acquired under section 37 of the Bengal Revenue Sales Act, 1859, the right "to avoid and annul all under tenures and forthwith to eject all under tenants" with certain exceptions which are not material here. In exercise of that right he gave notices of ejectment and brought a suit in 1946 to evict certain under tenants including the second respondent herein and to recover possession of the lands. The suit was decreed against the second respondent who preferred an appeal to the District Judge, 24 Parganas, contending that his under tenure came within one of the exceptions referred to in section 37. When the appeal was pending, the Bill which was later passed as the West Bengal Revenue Sales (West Bengal Amendment) Act, 1950, was introduced in the West Bengal Legislative ASsembly on 23rd March, 1950. It would appear, according to the "statement of objects and reasons" annexed to the Bill, that great hardship was being caused to a large section of the people by the application of section 37 of the Bengal Land Revenue Sales Act, 1859, in the urban areas and particularly in Calcutta and its suburbs where "the present phenomenal increase in land values has supplied the necessary incentive to speculative purchasers in exploiting this provision (section. 37) o/the law for unwarranted large scale eviction" and it was, therefore, considered necessary to enlarge the scope of protection already given by the section to certain categories of ,tenants with due safeguards for the security of Government revenue. The Bill was eventually passed as the amending Act and it came into force on 15th March, 1950. It substituted by section '4 the new section 37in place of the original section 37 and it provided by section 7 that all pending suits, appeals and other proceedings which had not already resulted in delivery of possession, shall abate. Thereupon B contending that section 7 was void 588 as abridging his fundamental rights under article 19(1)(f) and article 31 . moved the High Court under article 228 to withdraw the pending appeal and to determine the constitutional issue raised by him. The appeal was accordingly withdrawn and the case was heard by Trevor Harries C.J and Banerjee J. who, by separate but concurring Judgments, declared section 7 unconstitutional and void. They held that B 's right to annul under tenures and evict undertenants being a vested right acquired by him under his purchase before section 37 was amended, the retrospective deprivation of that right by section 7 of the amending Act without any abatement of the price paid by him at the revenue sale was an infringement of his fundamental right under article 19 (1)(f) to hold property with all the rights acquired under his purchase, and as such deprivation was not a reasonable restriction on the exercise of his vested right, section 7 was not saved by cl. (5) of that article and was void. The State of West Bengal preferred the present appeal to the Supreme Court: Held, per PATANJALl SASTRI C.J. Article 19 (1) (f) has no application to this case. The word "hold" in the article means own. The said sub clause (f) gives the citizen of India the abstract right to acquire, own and dispose of property. This article does not deal with the concrete fights of the citizens of India in respect of the property so acquired and owned by him. These concrete rights are dealt with in article 31 of the Constitution. Under the scheme of the Constitution all those broad and basic freedoms inherent in the status of a citizen as a free man are embodied and protected from invasion by the State under cl. (1)of article 19, the powers of State regulation of those freedoms in public interest being defined in relation to each of those freedoms by cls. (2) to (6) of that article, while rights of private property are separately dealt with and their protection provided for in article 31, the cases where social control and regulation could extend to the deprivation of such rights being indicated in para. (ii) of sub clause (b) of cl. (5) of article 31 and exempted. from liability to pay compensation under cl. Held, per PATANJALI SASTRI C.J. (MEHR CHAND MAHAJAN ' and GHULAM HASAN JJ. concurring) (i) Article 31 protects the right to property by defining the limitations on the power of the State to take away private property without the consent of the owner. Clauses (1) and (2) of article 31 are not mutually exclusive in scope and content, but should be read together and understood as dealing with the same subject, namely the protection of the right to property by means of limitations on the State 's power referred to above, the deprivation contemplated in clause (1) being no other than the acquisition or taking possession of the property referred to in cl. The words "taking of . . possession or . . acquisition" in article 31(2) and ' the words "acquisition or requisitioning" in entry 589 No. 33 of List I and entry No. 36 of List II as also the words "acquired or requisitioned" in entry No. 42 of List III are different expressions connoting the same idea and instances of different kinds of deprivation of property within the meaning of article 31(1) of the Constitution. No cut and dried test can be formulated as to whether in a given case the owner is "deprived" of his property within the meaning of article 31; each case must be decided as it arises on its own facts. Broadly speaking it may be said that an abridgement would be so substantial as to amount to a deprivation with in the meaning of article 31, .if, in effect, it withheld the property from the possession and enjoyment of the owner, or seriously impaired its use and enjoyment by him or materially reduced its value . The expression "taking possession" in art 31(2) of the Constitution can only mean such possession as the property taken possession of is susceptible to and need not be actual physical possession. ' (ii) It is difficult to hold that the abridgement sought to be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of article 31(1) and (2). No question accordingly arises as to the applicability of el. 5(b)(ii) of article 31 to the Per DAs J. (1) The abridgement of the rights of the purchaser at a revenue sale brought about by the new section 37 amounts to nothing more than the imposition of a reasonable restriction on the exercise of the right conferred by article 19(1)(f)in the interests of the general public and is perfectly legitimate and permissible under cl. (5) of that article. It is well settled that the statement of objects and reasons is not admissible as an aid to the construction of a statute but it can be referred to only for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill .to introduce the same and the extent and urgency of the. evil which he. sought to remedy. Those are matters which must enter into the judicial verdict as to the reasonableness of the restrictions which article 19(5) permits to be imposed on the exercise of the right guaranteed by article 19(1)(f). (II) The correlation between article 19(1)(f) and article 31 is that if a person loses his property by reason of its having been compulsorily acquired under article 31 he loses his right to hold that property and Cannot complain that .his fundamental right under article 19(1)(f)has been infringed. The rights enumerated in article 19(1) subsist while the citizen has the legal capacity to exercise them. A.K. Gopalan 's case ; and Chiranjit Lal 's case ; referred to. 590 For the purpose of this appeal the. matter proceeds on the footing that article 19 relates to abstract right as well as to right to concrete property. (III) The true scope and effect of cls. (1) and (2) of article 31 is that cl. (1) deals with deprivation of property in exercise of police power and enunciates the restrictions which our Constitution makers thought necessary or sufficient tO be placed on the exercise of that power, namely, that such power can be exercised only by authority of law and not by a mere executive fiat and that cl. (2)deals with the exercise of the power of eminent domain and places limitations on the exercise of that power. These limitations constitute our fundamental rights ' against the State 's power of eminent domain. (IV) Both these clauses cannot be regarded as concerned only with the State 's power of eminent domain, because then (a) cl (1) would be wholly redundant, for the necessity of a law is quite clearly implicit in cl. (2) itself; (b) deprivation of property otherwise than by taking of possession ' or acquisition of it will be outside. the pale of constitutional protection: (c) there will beno protection against the exercise of police power in respectOf property either by the executive or by the legislature. Chiranjit Lals case ; and The Bihar Zamindari case referred to. (V) The State 's police power is not confined (a) within the ambit of article 19 forto say otherwise ,will mean: (i) that there is no protection for any person, citizen or non citizen, against exercise of police power by the executive over property; (ii) that although in cls. (2) to (6) there is protection against ' (iei) legislature in respect of "restriction" there is no protection against "deprivation"; or (h) within d. (5) (b) of article 31 because to say otherwise will mean :__ (i) that the police power which is inherent in sovereignty and does not require express reservation has been unnecessarily defined and reserved; (ii) that the Constitution does not prescribe any test for the 'validity of the laws which fail within the clause and, therefore, the law failing within the clause may be as archaic, offensive and . unreasonable as the legislature may choose to make it; (iii) that the clause gives no protection against the executive; (iv) that the exercise of the police power by the legislature is confined within ' the very narrow and inelastic limits of the clause and that no beneficial or social legislation involving taking 591 of property can be undertaken by the State if the law falls outside the clause except on terms of payment of compensation; (v) that acqUiSition Of property for which compensation is Usually provided, e.g.; acquisition of land for a public park, hospital Or z 'dearing a slum area will henceforth be permissible without the law providing any compensation; (VI) The argument that if article 31(1) is read as a fundamental right against deprivation of property by the executive and article, 31(2) as laying down the Iimits of State 's power of eminent domain then there will be no real protection. whatever, for the State will deprive a person of his property without compensation by simply making a law is not tenable because (i) there will certainly be protection against the execute just as the 29th clause of the Magna Charts was a protection against the British Crown; (ii)" 'there is protection under article 31(2) against the legislature in the matter of taking of possession Or. acquisition for compensations to be given and under cl. (5) of art, 19 against unreasonable ' restraint: (iii) the absence of protection against the legislature in other cases is not greater than the absence of protection against the legislature in respect of taxation and if the legislature can be trusted in the latter case it may equally he ' trusted in the former case. (VII) Every taking of a thing into the custody of the State or its nominee does not necessarily mean the taking of possession Of that thing within the meaning of art 31(2) so as to call for compensation. The police power is exercised in the interest of the community and the power of eminent domain is exercised to . implement a public purpose and in both cases there is a taking of possession of private, property There is however a marked difference between the exercise of these two sovereign powers. It is easy to perceive, though somewhat difficult to express, the .distinction between the two kinds of taking of possession which undoubtedly exists. In view of the wide sweep of the State 's police power it is neither desirable nor possible to lay down a fixed general test for determining whether the taking of possession authorised by any particular. law falls within one category or the other. Without, therefore, attempting any such 'general enunciation of any inflexible rule it is possible to say broadly that the aim, purpose and the effect of the two kinds of taking of possession are different and that . in each "case the provisions of. the particular law in question" will have to 'be carefully scrutinised in order to determine in which category ' falls the taking of possession authorised by such law. = A consideration of the ultimate aim, the immediate purpose ::and the mode and manner of the taking 'of possession and, the duration". 'for which such possession . is taken, the effect of ' it ' on the rights of 'the person dispossessed and other such like elements must all determine the judicial verdict. 592 (VIII) Treating the right to annul under tenures and to eject under tenants .and decree for ejectment as "property" as used in article 31(2) the State has not acquired those rights for there has been no transfer by agreement or by operation of law of those rights from the respondent B to the State or anybody else. The purchase being at a Revenue sale to. which West Bengal Act VII of 1950 applies, the purchaser of the property has been deprived of this right by authority of law and the case falls within cl. (1) of article 31 and no Within cl. (2) of article 31. If the impugned section is regarded as imposing restrictions on the purchaser, such restrictions in the circumstances of the case are quite reasonable and permissible under article 19(5) and, in the premises, the _plea of unconstitutionality cannot prevail and must be rejected. Pet ' JAGANNADHADAS J. (i) On the assumption that the question raised in this case is one that arisesunder article 19(1)(f)and (5) of the Constitution, the impugned section of the West Bengal Act VII of 1950 is intra vires because the restrictions are reasonable within the meaning of article 19(5) of the Constitution; (ii) that article 19(1)(f) while probably meant to relate tot he natural rights of the citizens comprehends within the scope also concrete property rights. The restrictions on the exercise of rights envisaged in article 19(5) appear to relate normally, if not invariably to concrete property rights; (iii) that cl. (1).of article 31 cannot be construed as being either a declaration or implied recognition of the American doctrine of "police power". It comprehends within its scope the requirement of the authority of law, as distinguished from executive fiat for the exercise of the power of eminent domain, but its scope may well be wider. "Acquisition" and "taking possession" in article 31(2) cannot be taken as necessarily involving transfer of tide or possession. The words or phrases comprehend all cases where the title or possession is taken out of the owner and appropriated without his consent by transfer or extinction or by some other process, which in substance amounts to it, the possession in this context meaning such possession as the nature of the property admits and which the law recognizes as possession. (iv) In the context of article 31(2) as in the cognate context article 19(1)(f) the connotation of the word "property"is limited by the accompanying words "acquisition" and "taking possession". In the present. case the right to annul under tenures cannot in itself be treated as property for it is not capable of independent acquisition or possession. The deprivation of it can only amount to a restriction on the exercise of the fights as regards the main property itself and hence must fall under article 19(1)(f) taken with 19(5). Butchers Union etc. Co. vs Crescent City etc. Co.; , , Punjab Province vs Daulat Singh and Others ([1946] F.C.R. 1), Chiranjit Lal Chauduri vs The Union of India and Others ([1950] S.C.R. 869), A.K. Gopalan vs The State of Madras ([1950] S.C.R. 88), P.D. Shamdasani vs Central Bank of India ([1952] S.C.R. 391), Ministry of State. for the Army vs Dalziel ; , Pennsylvania Coal Co. vs Mahou , Dwarkadas Shrinivas vs Sholapur Spinning and Weaving Mills Ltd. ([1954] S.C.R. 674), ' State of Madras vs V.G. Row ([1952] S.C.R. 597), Ram Singh vs The State of Madras ([1951] S.C.R. 451), State of Bihar vs Maharajadhiraja Kameshwar Singh of Darbhanga ([1952] S.C.R. 889), Noble State Bank vs Haskeli ; , Eubank vs Richmond (226 U.S. 137), Ioseph Hurtado V. People of California (1883) (10 U.S. 516), referred to.

By an order dated August 20, 1943, the Appellate Tribunal directed that certain deductions claimed by the assessee should be allowed. The matter came back to the Income tax Officer and he made an order on September 26, 1945, but did not issue any fresh notice of demand. The assessee appealed to the Appellate Assistant Commissioner complaining that in his order of September 26, the Income tax Officer had wrongly included a sum of Rs. 13,000 60 464 as unassessed foreign income of earlier years. The Appellate Assistant Commissioner held that the order of September 26 was not appealable. The assessee, therefore, made a miscellaneous application to the Appellate Tribunal, which held that the Incometax Officer acted wrongly in including the sum of Rs. 13,000 at that stage and directed the Income tax Officer to revise his computation accordingly. The Commissioner of Income tax, being of opinion that the Appellate Tribunal had no jurisdiction to entertain or make such order on a miscellaneous application applied for a reference to the High Court under section 66 (1) of the Income tax Act. The Tribunal referred certain questions and the High Court directed the Tribunal to refer certain other questions also but when the references came on for bearing the High Court held that the references were incompetent. The Commissioner of Incometax appealed to the Supreme Court with the leave of the High Court : Held, (i) that in carrying out the directions of the Tribunal and in passing the order of September 26, 1945, the Income tax Officer cannot be regarded as having acted under section 23 or section 27 of the Act and no appeal lay from his order under section 30 (1). The order made by the Appellate Assistant Commissioner was not therefore an order under a. 31 (3) and no further appeal lay to the Appellate Tribunal under section 33 (1) so as to enable the Tribunal to make an order under section 33 (4) and us there was no order under a. 33 (4), no question of law can be said to arise out of an order under section 33 (4) and there can be no valid reference under section 66 (1) or section 66 (2); (ii) even assuming that the order of the Income tax Officer dated September 26, 1945, was an order under a. 23 or section 27 and as such appealable, the order made by the Appellate Assistant Commissioner declining to entertain the appeal was not an order under any of the sub sections of a. 31 and no appeal lay therefrom to the Appellate Tribunal under section 33 (1) and there could be no order of the Appellate Tribunal under section 34 (1). The order of the Appellate Tribunal correcting the order of the Income tax Officer and directing that the sum of Rs. 13,541 should not be included cannot be regarded in any event as an order under section 33 (4) so as to attract the operation of section 66 (1) or (2).

The petitioner, a merchant, carrying on business in "bullion and specie" and gold and silver ornaments was a registered 'dealer ' under the Orissa Sales Tax Act, 1947. The Government purporting to exercise its authority under section 6 of the said Act issued a notification on July 1, 1949 exempting certain articles from the operation of the charging section of that Act. Under the notification gold ornaments were ordered to be exempted from sales tax when the manufacturer selling them charges separately for the value of gold and the cost of manufacture. The petitioner filed his returns before the Sales tax Officer and claimed exemption of sales tax under the said notification. Up to June 1952, the claim for exemption was upheld. Subsequently, however, these assessments were reopened under section 12(7) of the Act and it was claimed that the deductions made on certain sale transactions of gold ornaments were not justified and the petitioner had escaped assessment. The petitioner pleaded that lie was entitled to exemption, because he belonged to the class of manufacturers to which the notification referred. The Sales tax Officer disallowed the petitioner 's contention. The petitioner then challenged the said decision by preferring appeals, but the said appeals were also dismissed. Pending these appeals, similar assessments made in respect of other dealers including the petitioner were challenged by writ petitions before the High Court. The High Court upheld the petitioner 's case and issued writs directing the Sales tax Officer to allow the petitioners ' claim for exemption. After this judgement was pronounced, the impugned Act was passed by the legislature on August 1, 1961 and was published on September 18, 1961, containing one operative provision in section 2. It provided that notwithstanding anything contained in any judgement, decree or order of any court, the word 'manufacturer ' occuring against item 33 in the schedule to the notification of the Government dated July 28, 1947 as amended by another notification of the 1st July, 1949 shall mean and shall always be deemed to have meant a person who by his own labour works up materials into suitable forms and a person who owns or runs a manufactory for the purpose of business with respect to the articles manufactured therein. The validity of this section was challenged in the present writ petition. 186 It was urged (i) that since the exemption was granted by the State Government by virtue of the Powers conferred on it by section 6, it was not open to the legislature to take away that exemption retrospectively; (ii) that the provision in section 2 of the impugned Act was discriminatory and as such contravened the equality before the law guaranteed by article 14 and (iii) that the retrospective operation of the impugned section should be struck down as unconstitutional, because it imposes an unreasonable restriction on the petitioner 's fundamental right under article 19 (1) (g) Held: (i) What the legislature had purported to do by section 2 of the impugned Act, was to make the intention of the notification clear. And, if the State Government was given the power either to grant or withdraw the exemption, that could not possibly affect the legislature 's competence to make any provision in that behalf either prospectively or retrospectively. (ii) The notification as interpreted by section 2 of the impugned Act benefits the artisans who produce ornaments themselves and who run manufactories. That is why the main object of granting exemption can be said to be achieved by holding that ,manufacturer ' means either a manufacturer properly so called or one who engages artisans to manufacture gold ornaments. In the present case the petitioners were not directly concerned with the production of ornaments, and admittedly, they did not produce the said ornaments themselves. Therefore, the persons who get the benefit of the exemption notification as a result of the provisions of section 2 of the impugned Act cannot be said to belong to the same class as that of the petitioners. The two categories are distinct and there is no sameness or similarity between them, and if that is so, the main argument on the basis of article 14 does not subsist. (ii) It would be difficult to accept the argument that because the retrospective operation may operate harshly in some cases, therefore, the legislation itself is invalid. In the circumstances of the present case it would not be possible to hold that by making the provision of section 2 of the impugned Act retrospective the legislature has imposed a restriction on the petitioner 's fundamental rights under article 19(1) (g) which is not reasonable and is not in the interest of the general public.

The appellants are dealers in Rab. The State Government under section 3D(1) of the U.P. Sales Tax Act, 1948, levied purchase tax in respect of their, dealings in Rab. Section 3D(1) of the Act, inter alia, provides that for each assessment year, there shall be levied and paid a tax on the turnover of first purchases made by a dealer or through a dealer in respect of such goods, at such rates not exceeding 2 paise per rupee in the case of foodgrains and 5 paise in respect of other goods and in the explanation it is provided that "in the case of purchase made by a registered dealer through a licensed dealer, 'the registered dealer shall be the, first purchaser and in every other case of fresh purchase, the dealer through whom the first purchase is made shall be deemed to be the first purchaser. The appellants challenged the vires of section 3(d)(1) of the Act before the High Court but the High Court held against the appellants. In appeal this Court, it was contended by the appellants that in empowering the Government to, levy tax on goods other than foodgrains at a rate not exceeding 5 paise in a rupee, the legislature had given an unduly wide power to the executive. Such a delegated power was, therefore, excessive and bad in law and secondly, section 3D(1) infringed article 14 of the Constitution because it discriminated between registered dealers who purchased through licensed dealers and the registered dealers who purchased through other dealers. Dismissing the appeals, HELD: (i) The power to fix the rate of tax is a legislative power, but if the legislature lays down the legislative policy and provides the necessary guidelines that power can be delegated to the executive. , Though a tax is levied primarily for the purpose of gathering revenue, in selecting the objects to be taxed and in determining the rate of tax, various social and economic factors are to be considered and since the legislatures have very little time to go into details, they have to delegate certain powers to the Executive. This Court has ruled that if a reasonable upper limit is prescribed, the legislature can always delegate the power of fixing the rate of purchase 'tax or sales tax. [143 E] Devi Days Gopal Krishnan vs State of Punjab, 20 S.T.C. 430, followed. In the present case, taking into consideration the legislative practice in this country and the rate of tax levied or leviable under the various sales tax laws in force in this country, it cannot be said that the power delegated to the. executive is excessive and in the absence of any material, it cannot be said that the maximum rate fixed under section 3D(1) is unreasonably high. 144 E F] (ii) Section 3D is not violative of article 14 of the Constitution. In the present case, there is nothing wrong for the legislature to make a classification between licensed dealers and dealers who are not licensed. A licensed dealer has to maintain true and correct accounts and other particulars of 142 purchasers whereas dealers who are not registered are not required to maintain any accounts. Hence, if registered dealers are permitted to make purchases through dealers who are not licensed and those dealers are themselves not liable to be taxed, then opportunity for evasion of tax becomes larger. Under the circumstances, the classification is not unjustified. [145 G] State of Madras vs Gannon Dunkerlay & Co. (Madras) Ltd., ; and Devi Deo Gopal Krishna vs State of Punjab, 20 S.T.C. 430, referred to.

In the year 1943 the Divisional Superintendent, East Indian Railway placed certain purchase orders with the appellant for the supply of foodgrains for the employees of the East Indian Railway. The orders were not expressed to be made in the name of the Governor General and were not "executed on behalf of the Governor General as required by section 175 (3) of the Government of India Act, 1935. They were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant. Some deliveries of foodgrain s were made under these orders and were accepted and paid for by the Railway Administration. But the Railway Administration declined to accept further deliveries of foodgrains. The appellant sold the balance of foodgrains under the purchase orders and filed a suit to recover the difference between the price realised by sale and the contract price. The respondent resisted the suit inter alia on the ground that the contracts were not binding on it. Held, that the contracts were not binding on the respondent and it was not liable for damages for breach of the contracts. Under s 175 (3) of the Government of India Act, 1935, as it stood at the relevant time, the contracts had: (a) to be expressed to be made by the Governor General, (b) to be executed on behalf of the Governor General and (F) to be executed by officers duly appointed in that behalf and in such mariner as the Governor General directed or authorised. The 881 authority to a person to execute contracts may be conferred not only by rules expressly trained and by formal notifications issued in this behalf but may also be specially conferred. The evidence in the case showed that such authority was specially conferred upon the Divisional Superintendent. But the contracts were not expressed to be made by the Governor General and were not executed on his behalf The provisions of section 175(3) were mandatory. The object of enacting these provisions was that the State should not be saddled with liability for unauthorised contracts and hence it was provided that the contracts trust show on their face that they were made by the Governor General and executed on his behalf in the manner prescribed by the person authorised. State of Bihar vs M/s. Karam Chand Thapar and Bros., Ltd. ; , followed. Liverpool Borough Bank vs Turner, ; , Municipal Corporation of Bombay vs Secretary of State, I. L. R. , Kessoram Poddar and Co., vs Secretary of State for India, I. L. R. section C. Mitra and Co., vs Governor General of India in Council, I.L.R. , Secretary of State vs Yadavgir Dharamgir, I. L. R. , Secretary of State vs G.T. Sarin and Co., 1. L. R. , U. I '. Government vs Lal Nanhoo Mal Gupta, A. 1. R. (1960) All. 420, and Devi Prasad Sri Krishna Prasad Ltd. vs Secretary of State, I. L. R. (1941) All. 741, referred to. section K. Sen vs Provincial P. W. D., State of Bihar, A. 1. R. (1960) Pat., Chatturbhui Vithaldas Jasani vs Moreshwar Prashram, ; ,J. K. Gas Plant Mfg., Co. (Rampur) Ltd. vs King Emperor, , Moreshwar Pangarkar vs State of Bombay, ; , State of Bombay vs Purshottam Jog Naik, ; and State of U.P. vs Manbodhan Lal Srivastava, (1958) section C. R. 533, distinguished.

No. 84 of 1958. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights, G. C. Mathur, for the petitioners. C. K. Daphtary, Solicitor General of India, B. Sen, R. H. Dhebar and T. M. Sen, for the respondent. April 20. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This is a petition filed under Ga. article 32 of the Constitution challenging the validity of the excise tariff imposed by el. (6) in entry 4(1) in the First Schedule to the (1 of 1944). Petitioners Nos. 1 to 17 are tobacco cultivators and they carry on the trade and business of growing tobacco and of selling it in Kaimganj Tahsil in the District of Farrukhabad in Uttar Pradesh. Petitioners 18 to 30 are partners or proprietors or agents of firms which are private bonded warehouse licensees and they carry on trade and business of purchasing tobacco from the cultivators and of selling the same to dealers or to other private warehouse licensees. By their petition the petitioners have asked for a writ, direction or order in the nature of mandamus to be issued to the respondent, the Union of India, restraining it from levying excise duty on hooka and chewing tobacco under the impugned item and any other writ, direction or order which may be found suitable to 120 protect the fundamental rights of the petitioners to carry on their trade and business of dealing in hooka and chewing tobacco. The attack against the validity of the impugned tariff item is based substantially on two grounds. It is urged that the rates imposed by the impugned item are excessive and they virtually destroy the petitioners ' trade and it is argued that the impugned item is based on unconstitutional discrimination. Mr. Mathur, for the petitioners, fairly conceded that he would not be able to substantiate the first ground of challenge, and indeed it is obvious that a challenge to tax law on the mere ground that the tariff imposed by the tax law is heavy cannot be enter tained. That leaves the question of discrimination alone to be considered in the present petition. For the purpose of this petition we will assume that if discrimination in respect of commodities taxed is proved it ultimately amounts to a discrimination against the persons taxed and therefore article 14 can be invoked in such a case. Mr. Mathur contends that is the effect of the decision of this Court in Kunmathat Thathunni Moopil Nair, etc., vs The State of Kerala (1) and as we have just observed we will assume that such a challenge can be made against the validity of a taxing statute with provisions such as we have before us and deal with the petition on that basis. The tariff entry in dispute as it now obtains under the taxing statute is entry 4 in the First Schedule. It deals with tobacco. Under this entry "tobacco" means any form of tobacco, whether cured or uncured and whether manufactured or not, and includes the leaf, stalks and stems of the tobacco plant, but does not include any part of a tobacco plant while still attached to the earth. Clause I in entry 4 deals with unmanufactured tobacco and prescribes tariff per kilogram in respect of the several items specified in it. Item (1) under this clause deals with five categories of tobacco which are flue cured and are used in the manufacture of cigarettes as indicated in the said five sub clauses. Item (2) deals with tobacco which is flue cured and used for the manufacture of smoking (1) ; 121 mixtures for pipes and cigarettes. Item (3) provides, for flue cured tobacco which is not otherwise specified; and item (4) is concerned with tobacco other than flue cured and used for the manufacture of (a) cigarettes or (b) smoking mixtures for pipes and cigarettes. The, tariff varies from Rs. 16.15 nP. per kilogram to ' Rs. 1.65 nP. per kilogram. That takes us to item (5). This item deals with tobacco other than flue cured and not actually used for the manufacture of (a) cigarettes or (b) smoking mixtures for pipes and cigarettes or (e) biris. The fourth clause under this item is tobacco cured in whole leaf form and packed or tied in bundles, banks or bunches or in the form of twists or coils. For tobacco falling under the four clauses under item (5) the tariff is Rs. 1.10nP. per kilogram. Clause (6) in this item with which we are concerned in the present petition deals with tobacco other than flue cured and not otherwise specified. For this residuary clause the tariff prescribed is Rs. 2.20 nP. per kilogram. This tariff is double the tariff prescribed for the classes in the preceding item. Mr. Mathur 's grievance is that the tobacco with which the petitioners deal cannot be distinguished on any rational basis from the tobacco covered by item (5), cl. (4), and so the imposition of a double tariff on the tobacco in which the petitioners deal is invalid inasmuch as it is based on unconstitutional discrimination. The argument proceeds on the assumption that the tariff is prescribe by reference to the use to which tobacco is put and it is urged that the tobacco with which the petitioners are concerned is not actually used either for cigarettes or smoking mixtures or biris and the fact that it is broken and not whole leaf does not afford any rational basis for classification. In dealing with. this argument it would be relevant very briefly to refer to the report of the Tobacco Expert Committee whose recommendations have furnished the main basis for the present revised tariff in respect of tobacco. In substance this report shows that the present tariff cannot be said to have been prescribed either wholly or even primarily by reference actually to the use of tobacco. Tobacco, as the 16 122 Committee 's report points out, is a rich man 's solace and a poor man 's comfort. Since it is used by all classes of people in various forms it is necessary to frame the tariff in such a way that the incidence of tax shall fall equitably on all classes of people using it. The report then points out that the Intention Tariff based on the principle of intention was found to be, ineffective because the assessee 's declaration of intended use left large room for evasion of tax. That is why the Intention Tariff was substituted by a flat rate of duty. By experience it was found that even this method was not very effective or equitable and then was adopted the capability tariff. Under this test the criterion of assessment was to be whether or not a particular specimen of tobacco was capable of use in bird manufacturing. If so capable it was assessable on a higher rate, if not so capable then at a lower rate. The report has examined the advantages of the capability tariff and has quoted the opinion of the Taxation Enquiry Committee which made its report in 1953. The report considered the volume of evidence adduced before it and took into account all the suggestions made. "In view of the practical difficulties brought before us", says the report, "we consider that, within the present tariff, the only workable and satisfactory method of classifying tobacco will be to prescribe standards readily identifiable either visually or by other simple tests and manipulations with a view to determine empirically what is capable and what is incapable of use in biris. The position is complicated because the same tobacco is used for different purposes in different parts of the country according to the prevalent consumption habits of different types of tobacco"; and the Committee realised that any system of classification on a uniform basis for the whole of the Indian Union is bound to involve greater imposts on consumers of those areas where the prevalent custom is to consume a variety for chewing, snuff, hooka, cigar purposes while the same varieties are used in other areas for biris. The conclusion of the Committee, therefore, 'was that the only criterion which is safe to adopt is the one relating to the physical form 123 of tobacco as affecting its suitability for biri making. The Committee realised that it was very difficult to classify specified varieties as solely chewing tobacco because many of these varieties are also used for making snuff and for hooka purposes. Normally, however, most chewing varieties are in whole leaf form and are ' cured by addition of moisture. Tobacco cured in whole leaf form cannot be converted into flakes as readily as tobacco cured by dry curing methods, and in the opinion of the Committee, although it is possible to prepare flakes out of tobacco cured in whole leaf form the process of conversion into flakes causes much higher proportions to crumble into dust, raw and other unsalable forms. The Committee was conscious that the whole leaf varieties after suitable manipulation can be utilised for biri manufacturing purposes but it thought that this could be done only after converting them into graded flakes, and even thereafter only by admixture with other tobacco on a small localised scale. In regard to the broken leaf grades which the Committee recommended should be liable to assessment at the higher rate relief was recommended by permitting any owner to convert his broken leaf tobacco into fine rawa or dust in which form it will become physically unusable for biris. According to the Committee, after such manipulation of physical form, the resultant, if it fulfils the specifications for rawa and dust, may be allowed assessment at the lower rate. We have referred to these observations made by the Committee in its report because they clearly and emphatically bring out the distinction between "tobacco other than flue cured and not otherwise specified" which is the subject matter of the, residuary clause and "tobacco other than flue cured and not actually. used for the manufacture of cigarettes or smoking mixtures for pipes or cigarettes or biris" covered by el. By the test of physical form the two articles are different. By the test of capability of user they are different and in a sense according to the Committee 's recommendations they partake of the character of different commodities. In this connection it may be 124 pointed out that though the tariff impost on the tobacco falling under the impugned cl. (6) is much higher, biris in the manufacture of which no process has been conducted with the aid of machines operated with or without the aid of power are not subject to any tariff, whereas cigars, chewing, cigarettes and biris in the manufacture of which any process has been conducted with the aid of machines operated with or without the aid of power are subject to tariff. The problem which the Committee had to face was to classify tobacco other than flue cured which would be used for the manufacture of biris, and with that object cl. (5) and el. (6) have been devised. Therefore, in our opinion, the distinction between tobacco falling under cl. (5) and cl. (6), according to the report of the Committee, is so clear and unambiguous and its relation to the object intended by the imposition of tariff is so clearly reasonable that the attack against its validity on the ground of unconstitutional discrimination cannot be upheld. There is one more point to which Mr. Mathur referred and which may be incidentally considered. Mr. Mathur contended that Nicotiana Rustica with which the petitioners deal is used exclusively for hooka and chewing in Uttar Pradesh. The petition avers that the variety of Nicotiana Rustica which is used in biris is not grown in Uttar Pradesh and that all the tobacco which is grown in Kaimganj is Nicotiana Rustica which is either pit cured or ground cured. It is used exclusively for hooka and chewing and is unfit for use in biris and cigarettes and is never so used. The argument, therefore, is that this tobacco cannot, be legitimately taxed under the impugned clause. Apart from the fact that the question as to whether the particular tobacco in which the petitioners deal falls under the impugned clause or not cannot be legitimately raised in a, petition under article 32, the answer to the plea is furnished by the counter affidavit and the report of the Committee. In the counter affidavit the allegations made in regard to the exalusive user of Nicotiana Rustica are generally denied, and what is more the report of the Committee specifically points 125 out that though Rustica varieties of tobacco are generally not known to be used for biris, when they are cured in broken leaf grades they can be used with admixture with biri tobacco like Pandharpuri tobacco for imparting strength to biri mixtures, and so according to the Committee no generalisation in this matter is possible and it cannot be asserted that, all forms of this variety are incapable of use in biris. Besides, it would be quite possible for dealers in the said varieties of tobacco to send them to other parts of the country where they are used for the purpose of manufacturing biris. Therefore, the grievance made by the petitioners that the tobacco in which they deal can never be used for biris is obviously not well founded. In the result the petition fails and is dismissed with costs. Petition dismissed.

Item 5 of entry 4(1) of the First Schedule to the Central Excise and Salt Act, 1944, imposes an excise duty of Rs. 1 10 nP. per kilogram on tobacco other than flue cured and not actually used for the manufacture of cigarettes, smoking mixtures for pipes and cigarettes or birds in the whole leaf form. Item 6 imposes a duty of Rs. 2 20 nP. per kilogram on tobacco in the broken leaf form. The petitioners who dealt in tobacco in the broken leaf form contended that their tobacco could not be distinguished on any rational basis from the whole leaf form in Item 5 and the imposition of a double tariff on their tobacco was invalid as it was based on unconstitutional discrimination, the tariff being on the basis of use to which the tobacco was put. 119 Held, that there was no unconstitutional discrimination in the imposition of the excise duty on tobacco in the broken leaf form. Tobacco in the broken leaf form was capable of being used in the manufacture of biris while tobacco in the whole leaf form could not be so used economically. The two forms of tobacco were different by the test of capability of user. The tariff was not based either wholly or even primarily by reference to the use of tobacco. There was a clear and unambiguous distinction between tobacco in the whole leaf form covered by item 5 and tobacco in the broken leaf form covered by item 6 which had a reasonable relation to the object intended by the imposition of the tariff. Kunmathat Thathunni Moopil Nair vs The State of Kerala, ; , referred to.

These petitions on behalf of the assessees raised the common question as to the constitutionality of section 5(7 A) of the Indian Income tax Act, which was raised but not decided by this Court in Bidi Supply Co. V. The Union of India, ; Reliance was placed on the observations of Bose, J. in his Minority judgment in that case and it was contended that the section read with the explanation, subsequently added to it as a result of that decision,conferred arbitrary and uncontrolled powers of transfer on the Income tax Commissioner and the Central Board of Revenue, was discriminatory and violative of the provisions of article 14 and imposed an unreasonable restriction on the right to carry on trade or business in contravention of article 19(1)(g) of the Constitution. It was further contended that the omnibus wholesale orders of transfer made without any reference to any particular case or without any limitation as to time were inconvenient and discriminatory and ran counter to the majority judgment in that case. The contention of the Central Board of Revenue, supported by affidavits filed on its behalf, was that the section was intended to minimize administrative inconvenience, there was no discrimination after transfer because the same relevant provisions of the Act as applied to others similarly situated, were applied after the transfer and any resulting inconvenience to the assessee was sought to be minimised by transferring his case either to the nearest area or, where that was not feasible, by examining his accounts or evidence, if required by him, at a place suited to his convenience and that the wholesale omnibus orders of transfer were covered by the explanation: Held, that section 5(7A) of the Indian Income tax Act was a measure of administrative convenience, was constitutionally valid and did not infringe any of the fundamental rights conferred by articles 14 and (19)(g) of the Constitution and the orders of transfer in question were saved by the explanation: to that section and. were constitutionally valid. 30 234 The right conferred on the assessee by section 64(1) and (2) of the Act was not an absolute right and must be subject to the primary object of the Act itself, namely, the assessment and collection of income tax, and where the exigencies of tax collection so required, the Commissioner of Income tax or the Central Board of Revenue had the power under section 5(7A) of the Act to transfer his case to some other officer outside the area where he resided or carried on business and any difference in his position created thereby as compared to that of others similarly situated would be no more than a minor deviation from the general standard and would not amount to a denial of equality before the law. This discretionary power vested in the Authorities by the section to override the statutory right of the assessee must be distinguished from the discretion that has to be exercised in respect of a fundamental right guaranteed by the Constitution and the two tests to judge whether it was discriminatory would be, (I) whether it admitted of the possibility of any real and substantial discrimination and (2) whether it impinged on a fundamental right guaranteed by the Constitution and, so judged, the discretion vested in the Authorities by section 5(7 A) of the Act was not at all discriminatory nor did the section impose any unreasonable restriction on the fundamental right to carry on trade or business. Bidi Supply Co. vs The Union of India, ; M.K. Gopalan vs The State of Madhya Pradesh, (1955) I S.C.R.168 ; The State of West Bengal vs Anwar Ali Sarkay, ; ; Dayaldas Kushiram vs Commissioner of Income tax, (Central),, I.L.R. ; Dayaldas Kushiram vs Commissioner of Income tax, Central, ; and Wallace Brothers & Co., Ltd. vs Commissioner of Income tax, Bombay, Sind & Baluchistan, A.I.R. 1945 F.C. 9, discussed. The explanation added to the section by the Amending Act XXVI Of 1956, was intended to expand the connotation of the ' term 'case ' used in the section and included both pending proceedings as also other proceedings under the Act which might be commenced in respect of any year after the date of transfer and as such the orders in question were not unconstitutional or void. The Income Tax Authorities, however, must be held bound by the statements made in their affidavits and where an assessee could make out a prima facie case of a mala fide or discriminatory exercise of the discretion ' vested in them, the Court will scrutinise the circumstances in the light of those statements and where necessary quash an abuse of the power under articles 226 and 32 Of the Constitution. Ratanlal Gupta vs The District Magistrate of Ganjam, I.L.R. 1951 Cuttack 441 and Brundaban; Chandra Dhir Narendra vs 235 The State of Orissa (Revenue Department), I.L.R. 1952 Cuttack 529, referred to. The Income tax Authorities should follow the rules of natural justice and, where feasible, give notice of the intended transfer to the assessee concerned in order that he may re_ resent his view of the matter and record the reasons of the transfer, however briefly, to enable the Court to judge whether such transfer was mala fide or discriminatory, if and when challenged.

The appellant company had a factory at Varanasi at which chemicals including ammonia were manufactured. It was considered by the Central Excise authorities that there had been evasion of duty on ammonia by the company. The Assistant Collector Central Excise issued a warrant for search and seizure of goods and documents, pursuant to which the premises of the aforesaid factory were raided in May, 1968 and certain documents seized. The company filed a writ petition in the High Court which was dismissed by the Single Judge. The Division bench upheld the order of the Single Judge. In appeal to this Court by special leave, the questions that fell for consideration were (i) Whether section 12 of the Central Excise Act was void because the powers delegated to the Central Government thereby including the power to make alterations in the Act applied were excessive; (ii) Whether the Sea Customs Act, 1875 having been re pealed, it was open thereafter to the Central Government under section 12 of the Excise Act to apply section 105 of the ; and (iii) Whether the Assistant Collector issued the warrants in the present case after due application of mind to relevant materials and 'facts in terms of section 105(1) of the . HELD : (i) In the notifications issued inter alia applying section 105(1) and section 1 10 of the , no such changes had been made as could possibly fall within the meaning of the word 'alterations. The power to restrict and modify does not import the power to make essential changes. It is confined to alterations of minor character and no change in principle is involved. The word 'alteration ' in section 12 must be understood in the sense in which it was open to the legislature to employ it legitimately and in a constitutional manner. No question was thus involved of delegation either of any essential legislative functions or any change of legislative policy. [96 B D] In re ; , , referred to. (ii)S. 8(1) of the General Clauses Act provides that where any Central Act repeals and re enacts with or without modification any provision of the former enactment then references in any such enactment or in any instrument, to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re 93 enacted. By virtue of this provision it could not be disputed that in section 12 of the Central Excise and Salt Act, 1947, the can be read in place of the . [96 E] The contention that section 12 of the Act empowers incorporation of the provision of the in the Act itself and, therefore, 8(1) of the General Clauses Act, does not apply could not be accepted. Section 12 only contained a provision delegating limited powers to the Central Government to draw upon the provisions of the for the purpose of implementing section 3 of the Act. A] Secretary of State for India in Council vs Hindusthan Co operative Insurance Society, 58 I.A. 259, distinguished; The Collector of Customs Madras vs Nathella Sampatha Chetty The extension of section 105 could not be said to be illegal merely because under section 172 of the it was a Magistrate who after applying judicial mind had to issue search warrant whereas under the present notification after the enactment of the , it was the Assistant Collector of Customs performing executive functions who had been empowered to issue a search warrant. By the latter notification the previous notification applying the provisions of the was superseded and no question with regard to the validity of the notification issued in 1963 and then amended in 1965 could survive. Collector Custom & Excise Cochine & Ors, vs A. section Bava , distinguished [98 A C] (iii)On the facts of the case it could not be said that the Assistant Collectorhad no relevant material upon which the belief could be founded in termsof section 105(1) of the

The appellants purchased groundnuts without shell in raw form, and after subjecting them to various processes and treatment, packed them in packets and tins which were then exported. The goods were charged to duty under item 13 of the Second Schedule to the Indian Tariff Act 1934 and, later, under item 20 of the Second Schedule to the as 'groundnut kernel '. The appellant however contended that the product exported by it was "processed peanuts", and since the product exported by the assessee, though basically groundnuts, had been so processed and treated that it lost its quality of germination, it could no longer be described as 'groundnut kernel '. Another argument of the appellant was that groundnut kernel could be said to be of two varieties one an edible variety, and the other a variety used for oil extraction purposes, and that the tariff entry should be confined only to groundnut kernel of the oil yielding variety and not the variety exported by the assessee, which could be more appropriately described as "processed food" rather than as "groundnut kernel". The appellant 's contentions were rejected by the Collec tor of Customs, on appeal by the Central Board of Excise and Customs and, on further revision, by the Government of India. Subsequently, the contentions were rejected by a Full Bench of the Customs, Excise & Gold Control Appellate Tribu nal. Before this Court, the appellants while reiterating the submissions made before the authorities below, contended that the entry in the export tariff should be given a re strictive interpretation and if there was any ambiguity or doubt it should be resolved in favour of the assessee. It was further submitted that, in matters of export and import, the func 142 tional test was slowly replacing other tests. On the other hand, it was contended on behalf of the Revenue that: i) the expressions 'groundnut kernel and 'groundnut shell ' used in the export entry were of widest connotation: (ii) there was no justification whatsoever for restricting the meaning of the word 'kernel ' on the basis of the capaci ty to germinate or to yield oil; (iii) the functional test may be attracted where there was a bifurcation or classifi cation as in the entries, but there was no justification to import any such test where the expression. as in this in stance, was broad and unrestricted; and (iv) groundnut kernel remains groundnut kernel even after roasting and frying and the processing and treatment did not create a different product. Dismissing the appeals, this Court. HELD: (1) There is no difficulty or ambiguity in the interpretation of the tariff entry. Groundnut is a well known commodity which is available both in shell and as kernel. In this context, 'kernel ' clearly means the grain, seed or the soft matter inside the shell, whatever the use or purpose to which it is put, eating or crushing for oil or sowing. The tariff entry covers all groundnut and there is no justification for confining it to the germinating or the oil seed variety alone. [151C D] M/s Health ways Dairy Products Co. vs Union of India & Ors.,[1976] 2 SCC 887, referred to. (2) Assuming that two different commercial commodities fall under the same entry, there is no reason why the entry should be restricted to only one of them. It can and should cover both unless one can say that the commodity marketed by the appellant is not 'groundnut kernel '. [151E] Diwan Chand Chainart Lal 's Case [1977] 39 STC 75, referred to. Though the raw groundnut kernel has undergone a dry ing, roasting and frying process, its identity as groundnut is not lost. Even in the market to which it is exported and where it is marketed, it is purchased as groundnuts. [I51G] (4) The legislature must be presumed to know that, for import purposes, for instance, groundnuts are classified under different headings with differential rates of duty. Those entries appear not elsewhere 143 but in the First Schedule of the very enactment which sets out the export tariff. If, in spite of such detailed classi fication elsewhere, the legislature decided to use a wider expression in the Second Schedule. the intention of the legislature must be given effect to. [152C D] (5) Once it is realised that both oil seeds and roasted groundnuts exported by the assessee are capable of being described as 'groundnut kernel ', which is what the entry talks of, the various circumstances pointed out that they have different markets, that their end use is different, that one of them has been excepted from the export ban, that their export is done under the auspices of different Export Promotion Councils all fall into place and reveal no incon sistency with. and have no bearing on, the interpretation to be placed on the entry. [153B C] Kalaivani Fabrics vs Collector, , Over ruled.

The question for determination in the appeal was whether the Union of India was entitled to levy and recover arrears of excise duty on cotton cloth for the period April 1, 1949, to March 31, 1950, payable by the respondent, a cloth mill in the State of Rajasthan, under the Rajasthan Excise Duties Ordinance, 1949. After the coming into force of the Indian Constitution and the extension of the Central Excise and Salt Act, 1944, and the rules framed thereunder to the State of Rajasthan by section II of the Finance Act of 1950, the duty in respect of cloth manufactured on and from April 1, 1950, became payable under that Act. The appellant Union, however, claimed that as a result of the agreement entered into on February 25, 1950, by the President of India with the Rajpramukh of Rajasthan under article 278 and article 295 of the Constitution, the Union of India became entitled as from April 1, 1950, to claim and recover all arrears of excise duties which the State of Rajasthan was entitled to recover from the respondent before the Central Excise and Salt Act, 1944, was extended to Rajasthan. Notice having been accordingly served on the respondent demanding payment of the outstanding amount of Rs. 1,36,551 12 as payable by it, it moved the High Court under article 226 of the Constitution. On a reference by the Division Bench which heard the matter in the first instance, the Full Bench finding in favour of the respondent held that article 277 was a complete refutation of the said claim by the Union and article 278 and the said agreement were overridden by it. Held, that the provisions of articles 277 and 278 of the Con stitution, properly construed, leave no manner of doubt that article 277 was in the nature of a saving provision, subject in terms to the provisions of article 278, permitting the States to levy a tax or duty which, after the Constitution could be levied only by the centre. But article 277 had to yield place to any agreement in respect of such taxes and duties made between the Union Government and the Government of a Part B State under article 278. Since there could not be the least doubt in the instant case that the agreement between the President and the Rajpramukh of Rajasthan conceded to the Union the right to levy and collect the arrears of the cotton excise duty in Rajasthan, the High Court was wrong in taking a contrary view of the matter.

In 1951, several State legislative measures passed for giving effect to a policy of agrarian reform faced a serious challenge in the Courts. In order to assist the State Legislatures to give effect to the policy, articles 31A and 31B were added to the Constitution by the Constitution (First. Amendment) Act, 1951. Article 31B provided that none of the Acts specified in the Ninth Schedule to the Constitution shall be deemed to be void or ever to have become void. In 1.955, by the Constitution (Fourth Amend ment) Act, article 31A was amended. Notwithstanding those amendments some legislative measures adopted by different States for giving effect to the policy were effectively challenged. In order to save the validity of those Acts as well as of other Acts which were likely to be struck down, Parliament enacted the Constitution (Seventeenth Amendment), Act 1964, by which article 31A was again amended and 44 Acts, were added to the Ninth Schedule. The petitioners in the Writ Petitions in Supreme Court, and interveners, were persons affected by one or other of those Acts. They contended that none of the Act by which they were affected could be saved because the Constitution (Seventeenth Amendment) Act was constitutionally invalid. It was urged that : (i) Since the powers prescribed by article 226, which is in Chapter V, Part VI of the Constitution, were likely to be affected by Seventeenth Amendment, the special procedure laid down in the proviso to article 368, namely ' requiring the ratification by not less half the number of States, should be followed; (ii) The decision in Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar, ; , which negatived such a contention when dealing with the First Amendment, should be reconsidered; (iii) The Seventeenth Amendment Act was a legislative measure in respect of land and since Parliament had no right to make a law in respect of land, the Act was invalid and (iv) Since the Act purported to set aside decisions of Court of competent jurisdiction, it was unconstitutional. HELD (by P. B. Gajendragadkar C. J., Wanchoo, and Raghubar Dayal JJ.) : (i) The main part of article 368 and its proviso must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged. Such a construction requires that if amendment of the fundamental rights is to make a substantial inroad on the High Court 's powers under article 226, it would become necessary to consider whether the proviso to article 368 would cover such a case. If the effect is indirect, incidental or otherwise of an insignificant order the proviso may not apply. In dealing With such a question, the test to be adopted is to find the pith and substance of the impugned Act. So tested it is clear that the Constitution (Seventeenth Amendment) Act amends the fundamental rights solely with the object of removing obstacles in the fulfilment of a socioeconomic policy. Its effect 934 on article 226 is incidental and insignificant. The Act therefore falls under the substantive part of article 368 and does not attract the proviso. [940 D E; 941 B E; 944 D F] (ii) On the contentions urged there was no justification for reconsidering Shankari Prasad case. [947 G H] Though the Constitution is an organic document intended to serve as a guide to the solution of changing problems the Court should be reluctant to accede to the suggestion that its earlier decisions should be lightheartedly reviewed and departed from. In such a case the test is : Is it absolutely and essential that the question already decided should be reopened. The answer to the question would depend on the nature of the infirmity alleged in the earlier decision, its import on public good and the validity and compelling character of the considerations urged in support of the contrary view. It is therefore relevant and material to note that if the argument urged by the petitioners were to prevail, it would lead to the inevitable consequence that the amendments of 1951 and 1955 and a large number of decisions dealing with the validity of the Acts in the Ninth Schedule would be exposed to serious jeopardy. [948 E H; 949 A B] (iii) Parliament in enacting the impugned Act was not making any provision of land Legislation but was merely validating land Legislation already passed by the State Legislatures in that behalf. [945 C] (iv) The power conferred by article 368 on Parliament can be exercised both prospectively and retrospectively. It is open to Parliament to validate laws which have been declared invalid by courts. [945 E F] (v) The power conferred by article 368, includes the power to take away the fundamental rights guaranteed by Part III. In the context of the constitution it includes the power of modification, or changing the provisions, or even an amendment which makes the said provisions inapplicable in certain cases. The power to amend is a very wide power and cannot be controlled by the literal dictionary meaning of the word "amend". The expression "amendment of the Constitution" plainly and unambiguously means amendment of all the provisions of the Constitution. The words used in the proviso unambiguously indicate that the substantive part of the Article applies to all the provisions of the Constitution. A B; 951 B] The word "law" in article 13(2) does not include a law passed by Parliament by virtue of its constituent power to amend the Constitution. if the Constitution makers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to article 13(2), they would have taken the precaution of making a clear provision in that behalf. It would not be reasonable to proceed on the basis that the fundamental rights in Part III were intended to be finally and immutably settled and determined once for all and were beyond the reach of any future amendment. The Constitution makers must have anticipated that in dealing With the socioeconomic problems which the legislatures may have to face from time to time, the concepts of public interest and other important considerations may change and expand, and so, it is legitimate to assume that the Constitution makers knew that Parliament should be competent to make amendments in those rights so as to meet the challenge of the problems which may arise. The fundamental rights guaranteed by Part III could not have been intended to be eternal, inviolate and beyond the reach of article 368 for, even if the powers to amend the fundamental 'rights were not included in the Article, Parliament ran by a suitable amendment of the Article take those powers. [951 F H; 954 F H; 955 E G] Article 226 which confers on High Court the power to issue writs falls under the proviso to article 368, while article 32 which is itself a guaranteed fundamental right and enables a citizen to move the Supreme Court to 935 issue writs, fall under the main part of the section. Parliament may consider whether the anamoly which is apparent in the different modes prescribed by article 368 for amending articles 226 and 32 respectively, should not be remedied by including Part III itself in the proviso. [956 E G] Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar, ; , followed. A. K. Gopalan vs State of Madras, ; and In re: The Delhi Laws Act; , , referred to. (vi) It is not reasonable to suggest that, since the impugned Act amends only articles 31A and 31B and adds several Acts to the Ninth Schedule it does not amend the provisions of Part III but makes an independent provision, and so, comes within the scope of the proviso to article 368. If Parliament thought that instead of adopting the cumbersome process of amending each relevant Article in Part III, it would be more appropriate to add articles 31A and 31B, then what Parliament did in 1951 has afforded a valid basis for further amendments in 1955 and in 1964. [946 B E] (vii) The fact that the Acts have been included in the Ninth Schedule with a view to making them valid, does not mean that the Legislatures which passed the Acts have lost their competence to repeal or amend them. Also, if a legislature amends any provision of any such Act, the amended provision would not receive the protection of article 3 1B and its validity will be liable to be examined on the merits. [956 A C] Per Hidayatullah and Mudholkar JJ. Quaere (i) Whether the word "law" in article 13(2) of the Constitution excludes an Act of Parliament amending the Constitution. [959 E F; 968 G] (ii) Whether it is competent to Parliament to make any amendment at all to Part III of the Constitution. [961 F G; 968 G] Per Mudholkar J. An amendment made by resort to the first part of article 368 could be struck down upon a ground such as taking away the jurisdiction of High Courts under article 226 or of the Supreme Court under article 136 or that the effect of the amendment is to curtail substantially, though indirectly, the jurisdiction of the High Courts under article 226 or the Supreme Court under article 136, and recourse had not been had to the proviso to article 368. The question whether the amendment was a colorable exercise of power by Parliament may be relevant for consideration in the latter kind of case. [969 D F] The attack on the Seventeenth Amendment Act was based on grounds most of which were the same as those urged and rejected in the earlier case of Sankari Prasad Singh Deo vs Union of India and State of Bihar, ; , and on some grounds which are unsubstantial. No case has therefore been made out by the petitioners either for the reconsi deration of that decision or for striking down the Seventeenth Amendment. [963 FG] The following matters however were not considered in Sankari Prasad 's case and merit consideration : (i) Where Legislation deals with the amendment of a provision of the Constitution, does it cease to be law within the meaning of article 13(2) merely because it has to be passed by a special majority ? [964 B C] (ii) Where a challenge is made before the Court on the ground that no amendment to the Constitution had in fact been made or on the ground that it was not a valid amendment, would it not be the duty of the Court and within its power to examine the question and to pronounce upon it since this is precisely what a Court is competent to do in regard to any other law? (iii) Is the statement in A. K. Gopalan vs State of Madras, ; that the fundamental rights are the minimum rights reserved by the people to themselves, and therefore unalterable, inconsistent with the statement in In re ; , that Parliament has plenary powers of legislation ? [965 D E] (iv) Whether making a change in the basic features of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution, and if it is the latter, would it be within the purview of article 368 ? [966 H, 967 A] (v) Upon the assumption that Parliament can amend Part III of the Constitution and was therefore competent to enact articles 31A and 31B, as also to amend the definition of "estate", can Parliament validate a State law dealing with land ? [968 H, 969 A] (vi) Could Parliament go to the extent it went when it enacted the First Amendment and the Ninth Schedule and now when it added 44 more agrarian laws to it ? Or, was Parliament incompetent to go, beyond enacting article 31A in 1950, and now, beyond amending the definition of "Estate" ? [969 B C]

The petitions challenged the constitutional validity of the Bombay Tenancy and Agricultural lands (Amendment) Act, 1956, (1) ; 62 490 (Bom. XIII of 1956) which, in further amending the Bombay Tenancy and Agricultural Lands Act, 1948 (Bom. LXVII of 1948), ;Ought to distribute the ownership and control of agricultural lands in implementation of the Directive principles of State policy laid down by articles 38 and 39 of the Constitution. The impugned Act sought to distribut equitably the lands between the landholders and the tenants, except where the landholder required the same for cultivation by himself, by way of compulsory _Purchase of all surplus lands by tenants in possession thereof with effect from April 1, 1957, called the 'tiller 's day '. The basic idea underlying the Act was to prevent concentration of agricultural lands in the hands of the landholders. The Act thus, being a legislation in respect of rights in and over land, affected the relation between landlord and tenant and provided for the transfer and alienation of agricultural lands. The petitioners, who were landholders as defined by section 2(9) of the Act contended that (1) the impugned legislation was beyond the competence of the State Legislature, (2) that, not being protected by article 31A, of the Constitution, it infringed articles 14, 19 and 31 of the Constitution and (3) that it was a piece of colourable legislation vitiated in part by excessive delegation of legislative power to the State. On behalf of the respondent it was urged that the impugned legislation fell within Entry 18 in List 11 Of the Seventh Schedule to the Constitution, that 'provided for the extinguishment or modification of rights to estates and was as such protected by article 31A of the Constitution and that there was no excessive delegation of legislative power. Held, that it was well settled that the heads of legislation specified in Entry 18 in List 11 of the Seventh Schedule to the Constitution should not be construed in a narrow and pedantic sense but should be given a large and liberal interpretation. There could, therefore, be no doubt that the impugned Act fell within the purview of Entry 18 in List 11 of the Seventh Schedule to the Constitution and the plea of legislative incompetence must fail. British Coal Corporation vs The King, ; United Provinces v . Atiqa Begum, and Navinchandra Mafatlal vs The Commissioner of Income tax, Bombay City, [1955] 1 S.C.R. 829, relied on. There could be no doubt that the Bombay Land Revenue Code, 1879, was the existing law relating to land tenures in force in the State of Bombay within the meaning of article 31A(2)(a) of the Constitution and the word 'estate ' as defined by section 2(5) Of the Code clearly applied not only to lands held by the various tenure holders of alienated lands but also to land holders and occupants of unalienated lands. There was no ambiguity in that definition and, therefore, no justification for putting a narrower construction on that word so as to mean the land holders of the former category alone and not of the latter; even if there was any, the wider meaning of the word was the one to be adopted in the context of the objective of the Act. 491 Case law discussed. The word 'landholder ' as defined in section 2(9) of the Act also made no distinction between alienated and unalienated lands and showed that the interest of such a landholder fell within the definition of 'estate ' contained in section 2(5) of the Code. There was no warrant for the proposition that extinguishment or modification of any rights in estates as contemplated by article 31A(1)(a) of the Constitution must mean only what happened in the process of acquisition of any estate or of any rights therein by the State. The language of the Article was clear and unambiguous and showed that it treated the two concepts as distinct and different from each other. Sections 32 to 32R of the impugned Act clearly contemplated the vesting of the title in the tenure on the titter 's day, defeasible only on certain specified contingencies. They were designed to bring about an extinguishment or in any event a modification of the landlord 's rights in the estate within the meaning of article 31A(1)(a) of the Constitution. The impugned Act, therefore, was not vulnerable as being violative of Arts.14, 19 and 31 of the Constitution. It would not be correct to contend that the sections merely contemplated a suspension of the landholders ' right and not their extinguishment. Thakur Raghubir Singh vs Court of Wards, Ajmer, ; , held inapplicable. Where the Legislature settled the policy and broad principles of the legislation, there could be no bar against leaving matters of detail to be fixed by the executive and such delegation of power could not vitiate the enactment. In the instant case, since the Legislature had laid down the policy of the Act in the preamble, enunciated the broad principles in sections 5 and 6 and fixed the four criteria in section 7 itself, the last of which had necessarily to be read ejusdem generis with the others, it was not correct to say that the impugned Act by section 7 had conferred uncontrolled power on the State Government to vary the ceiling area or the economic holding or that section 7 was vitiated by an excessive delegation of legislative power to the State. Parshram Damodhar vs State of Bombay, A.I.R. 1957 Bom. 257, disapproved. Dr. N. B. Khare vs The State of Delhi, ; ; The State of West Bengal vs Anwar Ali Saykar, [1952] S.C.R. 284 and Pannalal Binjraj vs Union of India, [1957] S.C.R. 233, referred to.

In a petition under article 32 of the Constitution of India the petitioners challenged the validity of the Maharashtra Industrial Development Act, 1961. In support of the petition it was contended : (i) that the Maharashtra legislature was incompetent to enact the Act because the Act was for the incorporation, regulation and winding up of the Maharashtra Development Corporation which was a trading corporation; accordingly the impugned legislation fell within Entry 43 of List I (.Union List) or the Seventh Schedule of the Constitution; (ii) that there was a special procedure designed by the land Acquisition Act for acquisition of land for the companies whereas in the present case under the provisions of the impugned Act the State was acquiring land for companies without adopting the procedure of the Land Acquisition Act and thus there was procedural discrimination; (iii) that the proviso to section 33 of the impugned Act providing that no compensation exceeding such amount as the State Government may by general order specify to be paid for acquisition shall be determined by the Collector without the previous approval of the State Government or its nominee, was restrictive of the judicial power of the Collector. HELD : (i) It is the true intent of the Act i.e. its pith and substance which will determine the validity of the Act. Industries come within Entry 24 of the State List subject to the provision of Entry 7 and Entry 52 of the Union List of the Constitution. Entry 7 of the Union list relates to industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war. Entry 52 of the Union List relates industries the control of which by the Union is declared by Parliament by law to be expedient in the public interest. The establishment, growth and development of industries in the State of Maharashtra does not fall within Entry 7 and Entry, 52 of the Union List. Establishment growth and development of industries in the State is within the State List of industries. The, pith and substance of the Act is establishment growth and development of industries, and acquisition of land in that behalf carries out the purposes of the Act by setting up the Corporation as one of the limbs or agencies of the Government. 'Me powers and functions of the Corporation show in no certain terms that these are all in aid of the principal and predominant purpose of establishment and growth of industries. When the Government is satisfied that the Corporation has substantially achieved the purposes for which the Corporation is established, 720 the Corporation will be dissolved because the raison d 'etre is gone. It must, therefore, be held that the Act is a valid piece of legislation. [725 F 726 D] The contention that the Corporation was a trading one, or that it Was a Government company within the meaning of section 617 of the could not be accepted. [Reason dissussed] The true character of the Corporation in the present case is to act as an architectural agent of the development and growth of industrial towns by establishing and developing industrial estates and industrial areas. [727 B 728 F] (ii) The contention that there was procedural discrimination is between the present Act and the Land Acquisition Act could not be accepted. The Maharashtra Industrial Development Act is a special one having the specific and special purpose of growth, development and Organisation ,of industries. That Act has its own procedure. Under the Land Acquisition Act acquisition is at the instance of and for the benefit of a company whereas under the present Act acquisition is solely by the State for public purposes. 'Me two acts arc dissimilar in situation and circumstances. [728 H 729 E] (iii) The proviso to section 33 no doubt provides that where the amount of compensation determined by the Collector is higher than what the State Government may by general order specify the approval of the State Government is necessary, But sub section (5) of section 33 states that in determining the compensation the Collector shall be guided by the provisions contained in sections 23 and 24 and other relevant provisions of the Land Acquitition Act. There is no ceiling fixed by the Government. Further there is an appeal to the Court from the decision of the Collector. The decision of the Court will finally determine the amount of compensation. There is thus no restriction on the powers of the Collector in the matter of determination of compensation, although the approval of Government may be necessary in the Government interest. [729 F 730 C]

Appeal No. 456 of 1958. Appeal by special leave from the judgment and order dated May 10, 1957, of the Rajasthan High Court (Jaipur Bench) at Jaipur in D. B. Civil Reference No. 17 of 1956. WITH PETITION No. 87 of 1961. Petition under article 32 of the Constitution of India for enforcement of Fundamental rights. Bishan Narain, and Govind Saran Singh, for the appellant/petitioner. N. section Bindra and T. M. Sen, for the respondents. April 25. The Judgment of the Court was delivered by 373 DAS GUPTA, J. On April 1, 1950, the Deputy Custodian, Jaipur, made an order in proceedings instituted under section 19 of the Administration of Evacuee Property Ordinance declaring the appellant Dr. Mohammad Saeed a medical practitioner of Jaipur to be an intending evacuee. By the same order a notice was directed to be issued to the respondent to show cause why he should not be declared to be an evacuee under section 2(d)(i) and section 2(d)(iii) of the Ordinance. When thereafter the (Act XXXI of 1950), came into force ano ther notice was issued on the appellant under section 22(b) of the Act to show cause why his property should not be declared evacuee property on the ground that he had transferred a substantial portion of his assets to Pakistan. On November 16, 1951, the Deputy Custodian, Jaipur held Dr. Mohammad Saeed to be an evacuee under section 2(d)(iii) of the Administration of Evacuee Property Ordinance, 1949. He also held Dr. Mohammad Saeed 's property to be evacuee property under section 7 of the Ordinance and also under section 22(b) of the . On appeal the District Judge, Jaipur, set aside this declaration of the appellant as an evacuee under section 2(d)(iii) of the Ordinance and remanded the case for a fresh decision in the light of the observations made by him. As regards the order under section 22(b) the learned District Judge agreed with the Deputy Custodian that Dr. Mohammed Saeed had transferred a substantial portion of his assets to Pakistan between November 1947 and September 1948. Being of opinion however that not only this act of transfer which took place before the 18th day of October, 1949, but other circumstances including the appellant 's conduct after October 18, 1949, have to be, taken into consideration before action under section 22(b) can be taken, he found that it was difficult to say that the appellant had been making preparations for his migration to Pakistan. Accordingly he set aside the order made by the Deputy Custodian under section 22(b). The 48 374 Custodian of Evacuee Property, Rajasthan, moved the Custodian General of Evacuee Property for revision of this order. The Deputy Custodian General of Evacuee Property who heard this petition in revision was unable to agree with the District Judge 's findings on the question as regards the order under section 22(b) and accordingly made a reference under section 27(2) of the , to the High Court of Rajasthan. The High Court rejected the contention raised on behalf of this appellant that the circumstances as to the transfer of a substantial portion of his assets should relate to an act done by any person, after, he was declared as an intending evacuee. It further held that the fact that Dr. Mohammad Saeed had during the period from August 14, 1947 to October 18, 1949, transferred a substantial portion of his assets in India to Pakistan constituted under the law a preparation for his migration to Pakistan and that this justified a declaration by the Custodian of his property situated in Rajasthan in which Dr. Mohammad Saeed has a right or interest, to be evacuee property. Accordingly, the High Court set aside the decision of the District Judge in respect of Deputy Custodian General 's orders under section 22(b) and directed the Custodian General or the Deputy Custodian General, if authorised to deal with it, to dispose of the proceedings in accordance with the decision of the High Court. In accordance with this direction the Deputy Custodian General on August 10, 1957, held that the property of the petitioner was rightly declared to be evacuee property under section 22(b) by the Deputy Custodian. The appeal has been filed against this decision by special leave granted by this Court. After the appeal was heard in part on January 23, 1961, the hearing was adjourned to enable the appellant to make a writ petition. A petition under article 32 of the Constitution was then filed on February 14, 1961, praying for a writ of certiorari and/or mandamus or direction to quash the order made under section 22(b). The appeal and the petition have come up for hearing together. 375 As the writ petition challenges the validity of the law as enacted in section 22(b) it will be proper and convenient to take up that petition for decision first. Of the several grounds urged in the petition against the validity of section 22(b) only one, viz., that section 22(b) contravenes article 14 of the Constitution has been pressed before us. While however in the grounds as stated in the petition the attack was that discrimination had been made between persons declared as intending evacuee in respect of whose property proceedings had been started before the commencement of the Act and those in respect of whose property no such proceedings had yet been started and further that article 14 was contravened because a person declared to be an intending evacuee who had done one of the acts prescribed as constituting a preparation for migration to Pakistan, was denied the right to show that he had, in fact, no intention so to migrate and had made no preparation for the purpose and by imposing upon him a very grave penalty, neither of those contentions were urged at the hearing. The only argument on the question of contravention of article 14 which Mr. Bishan Narain urged on behalf of the petitioner was that in two matters there was discrimination between an intending evacuee whose property was declared evacuee property under section 22(b) and an evacuee whose property might be declared to be an evacuee property, where the evacuee had done practically the same thing for which another person has been declared as an intending evacuee. Learned Counsel has pointed out that under section 2(d)(iv) of the , as it stood after its amendment by Act 11 of 1953, a person who has after the 18th day of October, 1949, transferred to Pakistan without the previous approval of the Custodian his assets or any part of his assets situated in any part of the territories to which the Act extends is an evacuee; so that any property of such a person is evacuee property within the meaning of the Act. When in respect of property of such a person an order has been made under section 7 of the Act declaring it to be evacuee property the evacuee or his heir will be entitled to make 376 an application for restoration of the property under section 16 of the Act, and after due inquiry the Central Government may, subject to the conditions specified in the section make an order restoring the property to the applicant. Another benefit which a person who is an evacuee within the meaning of section 2(d)(iv) is entitled to, along with other evacuees, is that of section 13 of the Displaced Persons (Compensation and Rehabilitation) Act (XLIV of 1954), under which when any property of an evacuee has been acquired under section 12 there shall be paid to an evacuee compensation in respect of his property. . . . in accordance with such principles and in such manner as may be agreed upon between the Governments of India and Pakistan. Take however the case of a person, like the present petitioner who after the 14th day of August, 1947, and before the 18th day of October, 1949, transferred his assets or any portion thereof to Pakistan. He would be an "intending evacuee" within the meaning of section 2(e)(i) of the Act and once a declaration had been made under section 19 that he was an intending evacuee his property would be liable to be declared evacuee property under section 22(b). Even so however he would not get the benefit of section 16 of Act XXXI of 1950 or of section 13 of the . The result of the several provisions of law of the , after it was amended in 1953 therefore is that if a person transferred his assets or any part of his assets to Pakistan without the previous approval of the Custodian after the 18th day of October, 1949, he would be an evacuee in law and his property will be liable to be declared an evacuee property, but he will still be entitled to restoration of the property under section 16 of the , and also to the benefit of section 13 of the (XLIV of 1954); but if a person transferred his assets or part of his assets to Pakistan between the 14th day of August, 1947, and the 18th day of October, 1949, he was liable 377 to be declared an intending evacuee at any date before the Amended Act of 1953 came into force and if that has happened, any property belonging to him was liable to be declared evacuee property under section 22 of the Act at any time before Chapter IV of that Act was repealed by the 1953 Act and even after that date if any proceeding under section 22 was pending on the ' date of the commencement of the 1953 Act. But such a person would not be entitled to the benefit of either section 16 of the , or compensation under section 13 of the (XLIV of 1954). This denial of benefits under section 16 of the 1950 Act and section 13 of the 1954 Act to one who has been declared an intending evacuee on the ground of transfer of assets to Pakistan amounts, it is urged by the learned counsel, to be a denial of equal protection of laws and it is contended that section 22(b) of the as it stood before the section war, repealed along with other sec tions of Chapter IV should be held to be void. In our judgment, this contention is not well founded. In the first place it is to be pointed out that a person who transferred assets between the 14th August, 1947, and the 18th October, 1949, and a person who transferred such assets after the 18th October, 1949, cannot properly be considered to be similarly circumstanced. It has to be borne in mind that political relations between India and Pakistan were in a fluid and disturbed state immediately after the 14th August, 1947, but the position improved to a considerable extent by the 18th October, 1949, which it may be noticed was the date when the Administration of Evacuee Property Ordinance, 1949, was made. Persons who had transferred assets between the 14th August, 1947, and the 18th October, 1949, may therefore reasonably have been considered by the legislature to form a class distinct in respect of the application of the law to their property from those who transferred assets after the 18th October, 1949. We are not however concerned with the reasons or the wisdom of the policy which underlay the denial of the 378 benefits of section 16 of the and section 13 of the (XLIV of 1954) to those persons who had been declared intending evacuees because of having transferred assets between the 14th August, 1947, and the 18th October, 1949, while granting these benefits to those who were evacuees under the law as amended in 1953, because of transfer of assets to Pakistan after the 18th October, 1949. What is clear is that the two groups of persons are not similarly circumstanced and so the denial of equal benefits to the two groups is not an infringement of the guarantee of equal protection of laws. Next it is important to note that this differenceviz., that one group of persons is entitled to the benefits of the sections mentioned above while another group is not does not flow directly or necessarily from section 22(b). What is characterised as discrimination between an evacuee and an intending evacuee is the consequence of the legislature 's omission to extend to the intending evacuees the benefits of section 16 of the 1950 Act and section 13 of the 1954 Act as mentioned above and not of the provisions under section 22(b) that under certain circumstances as specified therein the Custodian may declare the property of an intending evacuee to be evacuee property. We do not think that it is possible to say therefore that section 22(b) of the contravenes article 14 of the Constitution. The petition under article 32 of the Constitution therefore fails and is dismissed with costs. The appeal raises the question of the effect of the application of section 22(b) of the Act to the facts of the present case. Section 22(b), substituting therein for the words "he had done any of the acts specified in sub clauses (i) and (iii) of clause (e) of section 2" the words of only cluse 2(e)(i), reads thus: "If the Custodian is satisfied, after such enquiry as may be prescribed, that the circumstances relating to any person, in respect of whom a declaration has been so made on the ground that after the 14th 379 day of August, 1947, and before the 18th day of October, 1949, he has transferred to Pakistan his assets or any part thereof situated in any part of the territories to which this Act extends are such as may be prescribed as constituting a preparation for his migration to Pakistan, the Custodian may declare any property situated in the State in which such person has any right or interest to be evacuee property and on the issue of such notification any property specified in the notification shall be deemed to be evacuee property which has vested in the Custodian within the meaning of this Act. " It is important to notice the explanation to the section which runs thus: "Explanation: The following shall be deemed to be some of the circumstances prescribed under clause (b), namely (i) the transfer to Pakistan by any person referred to in that clause of a substantial portion of his assets situated in any part of the territories to which this Act extends, or (ii) the acquisition of, or the declaration of an intention to acquire, Pakistan nationality by any such person. " It need only be mentioned that a declaration has been "so made" means that a declaration has been made under section 19 of the Act that he is an intending evacuee. It is no longer in dispute that Dr. Mohammad Saeed had, before the order appealed from was made, transferred to Pakistan a substantial portion of his assets situated in Jaipur which is part of the territories to which this Act extends. It is further not in dispute that this transfer was made before he was declared an intending evacuee. The first contention raised on behalf of the appellant was that this transfer having been made before the declaration was made is not available for consideration for the purpose of an order under section 22(b). The contention is clearly unwarranted. On a normal grammatical construction of the words used by the legislature it is abundantly clear that the transfer to 380 Pakistan of a substantial portion of the assets shall be deemed to be one of the circumstances prescribed under clause (b) irrespective of whether the transfer took place before the declaration as intending evacuee was made or after such declaration. What is necessary is that the circumstance must relate to any person in respect of whom a declaration that he is an intending evacuee has been made. There is nothing to justify the conclusion that the circumstances in order that they may be taken into consideration must also come into existence after the declaration was made. Indeed the scheme of the legislation appears to be that the fact that any portion of a person 's assets has been transferred to Pakistan is sufficient to make him liable to a declaration that he is an intending evacuee; but he becomes liable to the further declaration that his property is evacuee property, where it appears that what was transferred forms a substantial portion of his assets. In some cases it may happen that what was transferred before his declaration as an intending evacuee formed a small part of his assets. In such a case if later on other portions of his assets were transferred to Pakistan and the two transfers together amount to a transfer of a substantial portion of his assets, his property will be liable to be declared as evacuee property: It will be difficult to find any logic in the argument that when what was transferred before his declaration as intending evacuee was itself a substantial portion of his assets, such liability should not fasten. Quite apart however from the question of logic or reasonableness it is quite clear from the language used in the section that the legislature in. tended such circumstance of transfer of a substantial portion of assets to be available for consideration for the purpose of an order under section 22(b) whether or not the transfer took place before the person was declared as an intending evacuee or afterwards. It was next urged that in any case it would be proper for the Custodian to take other circumstances including the later conduct of the intending evacuee to decide whether or not he should declare his property to be evacuee property. It is unnecessary for 381 us to consider whether it is open to the Custodian to consider such other circumstances. The section however gives a Custodian the authority to declare the property of a person who has been declared an intending evacuee to be evacuee property whenever the existence of any of the circumstances prescribed as constituting a preparation for his migrating to Pakistan is established. Where, as in the present case, a Custodian in exercise of such authority has given such a declaration there is no reason for saying that the declaration has been improperly made. In our opinion, the High Court was right in setting aside the order of the District Judge and in directing the Custodian General or the Deputy Custodian General to dispose of the matter in accordance with the views expressed by the High Court that on the facts proved in the case the order made by the Deputy Custodian declaring Dr. Mohammad Saeed 's property as evacuee property was right. The order made by the Deputy Custodian General in compliance with the directions given by the High Court cannot therefore be assailed. The appeal is accordingly dismissed with costs. Appeal dismissed.

The appellant was held to be an evacuee under section 2(d)(iii) of the Administration of Evacuee Property Ordinance, 1949, and his property was declared to be evacuee property under section 22 (b) of the Administration of Evacuee Property Act, 950, on the ground that he had transferred a substantial portion of his assets to Pakistan. The relevant portion of section 22(b) runs thus: 372 "If the Custodian is satisfied, after such enquiry as may be prescribed, that the circumstances relating to any person, in respect of whom a declaration has been made on the ground that after the 14th day of August, 1947, and before the 18th day of October, 1949, he has transferred to Pakistan his assets or any part thereof situated in any part of the territories to which this Act extends, are such as may be prescribed as constituting a preparation for his migration to Pakistan, the Custodian may declare any property situated in the State in which such person has any right or interest to be evacuee property. . " The contentions, inter alia, of the appellant were that (1) section 22(b) contravened article 14 of the Constitution and (2) that the circumstances as to the transfer of a substantial portion of his assets should relate to an act done after he was declared as an intending evacuee. Held, that the two groups of persons who transferred their assets between the 14th August, 1947, and the 18th October, 1949 and persons who transferred their assets after the 18th October, 1949 were not similarly circumstanced and the denial of equal benefits to the two groups was not an infringement of equal protection of laws under article 14 of the Constitution. The circumstance of transfer of a substantial portion of assets was available for consideration for the purpose of an order under S, 22(b) whether or not the transfer took place before the person was declared as an intending evacuee or afterwards.

Disputes between the State of Rajasthan and a company were referred to arbitration and the Government Advocate was appointed to represent the State. Another advocate was appointed to assist the Government Advocate but as the advocate was table to appear, the appellant was no appointed under 0.27, r. 8B of the Civil Procedure Code, as Special Government Pleader. The appellant then stood for election to the State Legislative Assembly and was declared elected. The election was challenged and one of the grounds of challenge was that the appellant held an office of profit within the meaning of article 191 of the Constitution. The High Court set aside the election. While the appeal was pending in this Court, Rajasthan Act 5 of 1969 was passed declaring among others that the holder of the office of a Special Government Pleader was not disqualified from being chosen or for being a member of the State Legislative Assembly; and by section 2(2), the Act was made retrospective removing the appellant 's disqualification retrospectively. On the questions : (1) Whether the appellant was holding an office of profit and hence was disqualified; (2) Whether the disqualification was removed by Act 5 of 1969; and (3) Whether the election petition was in accordance with law, because, another candidate from another constituency, again t whom corrupt practices were alleged, was not impleaded as a party, HELD : (1) (Per Sikri, Ray and Jaganmohan Reddy, JJ.) : The appellant was not holding an office of profit. (a) Before a person becomes subject to the disqualification in article 191(1) there must be an office which exists independently of his being the holder of the office. The word 'office ' means an office or employment which was a subsisting, permanent, substantive position which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders; but if a person was engaged on whatever terms to do the duties which were assigned to him, his employment to do those duties did not create an office to which those duties were attached. Hence an office does not come into existence every time a pleader is asked by the Government to appeal, in a case on its behalf. A B; 850 G H] Cl/70 8 836 (b) A reading of section 2(7) and 0.27, r. 8B of the Civil Procedure Code A shows, that even an advocate who is. acting under the directions of the Government Pleader could be deemed to be a Government Pleader. Therefore, the notification of the appellant 's name under r. 8B as Special Government Pleader did not amount to the creation of an office. [850 F G] (c) Assuming that a Government Pleader is an agent of the Government for purposes of receiving processes against the Government, the fact that processes could be served on an advocate, would not mean that the advocate was holding an office under his client. [851 A B] (d) It is not necessary to give a wider meaning to the word 'office ' because, if Parliament thinks that a legal"practitioner who is being paid fees in a case by the Government should not be qualified to stand for an election as a member of the Legislative Assembly, it can make that provision under article 191 (1) (e) of the Constitution. [851 C D] Great Western Railway Co. vs Bater, 8 Tax Cases 231 and McMillan vs Guest (H. M. Inspector of Taxes) 24 Tax Cases 190, applied. Mahadeo vs Shantibhai & Ors. [1969]2 S.C.R. 422 distinguished. Sakhawat Ali vs State of Orissa, , referred to. (Per Hidayatullah, C.J. and Mitter, J. dissenting) : The High Court was right in holding that the appellant held an office of profit. [842 C] It was not a case of the appellant merely being briefed as a lawyer and given the Government litigation. On the other hand an office, that of Special Government Pleader was created, and since the office of a Government Pleader is an office of profit, the office of Special Government Pleader will equally be an office of profit. It was an office which could be successively held, it was independent of its holder, it was a substantive position and as permanent as other supernumerary offices. [841 FG; 842B] Mahadeo vs Shantibhai & Ors. and The Statesman (P.) Ltd. vs H. R. Deb & Ors. ; applied. McMillan vs Guest, and Great Western Railway Co. vs Bater, 8 Tax Cases 231, 235, referred to. (2) (By Full Court) : The Act 5 of 1969 has removed the disqualification retrospectively. Per Hidayatullah, C.J. and Mitter, J. : It is well recognised that Parliament and the Legislature of a State can make their laws operate retrospectively subject to limitations, if any, in the Constitution. Any law that can be made prospectively may be made with retrospective operation except those which cannot operate retroactively. In article 191 itself, power is reserved to the State Legislature to make a declaration that the holder of an office shall not be disqualified and there is nothing in the words of the Article to indicate that such a declaration cannot be made with retrospective effect, therefore, whatever may be the propriety of such legislation regard being had to legislative practice and the absence of a clear prohibition, express or implied. the Act must be declared to have retrospective effect. [843 B C, D F] 837 Per Sikri, Ray and Jaganmohan Reddy, JJ. : Parliament and the State legislatures can legislate retrospectively subject to the provisions of the Constitution. No limitation on the powers of the Legislature to make a declaration validating an election, effective from an earlier date, is expressly stated nor could it be implied in article 191(1). ]851 F G; 852 D E] The apprehension that it may not be a healthy practice and might be abused is no ground for limiting the powers of the State Legislature. [852 B] The impugned Act does not amend or alter the Representation of the People Act, 1951, in any respect whatsoever. By enacting the impugned Act, the disqualification if any, which existed in the 1951 Act has been removed, but that is what the State Legislature is entitled to do under article 191 so long as it does not touch the wording of the 1951 Act. [852 F G] (3) (By Full Court) : The words 'any other candidate ' in section 82(b) of the Representation of the People Act, 1951, who should be impleaded, refers to a candidate in the election for the constituency which is the subject matter of the petition, and not to a candidate from another constituency. [843 G H; 853 D E]

Practice and Procedure Conduct of parties to be taken into account while granting relief in writ petition. The property in dispute was undivided property (composite property) of three brothers, one of whom died and his sons migrated to Pakistan. One third share of the property was declared evacuee property and vested in the Custodian under the . It was allotted to the appellant who was a refugee. The Competent Officer issued individual notices under Section 6 of the to the two remaining brothers of the evacuee and their acknowledgments were placed on record. Since no claim was filed by anyone, an order was made by the Competent Officer on 31 8 1955 vesting the property in the Custodian under Sec. 11. As the property was again reported to be composite property, fresh notices were inadvertently issued to the co sharers, but no claim was filed by anyone and an order was again made on 23 3 1957 vesting the property in the Custodian. Possession of the evacuees one third share in the property was delivered to the appellant under order of Assistant Custodian. After a lapse of time, the respondents filed an application for 'restoration ' alleging that no notice for separation of the evacuee interest in the property was ever served on them and that they learnt of the vesting order only when the Manager of the evacuee property went to the village to take possession. The Competent Officer passed an order setting aside the vesting order dated 31 8 1955 and transferred the property to the sons of the deceased brother for Rs. 5,000/ . The Assistant Custodian of Evacuee Property made an application to the Competent Officer for a review of his order, pointing out a wrong impression. It was stated that the evacuee interest in the property had already been allotted to the appellant. The Competent Officer partly allowed the review. The respondents questioned the power of the Competent officer to review his order, but the objection was rejected. The respondents filed a writ petition under article 226 of the Constitution. The High Court quashed the order of review on the ground that in the absence of any provision in the Act for review, it was not permissible for the Competent Officer to review his order. Allowing the appeal to this Court, 892 ^ HELD: (1) The conduct of the respondents was such as to disentitle them to a writ and the High Court erred in ignoring that important aspect of the matter even though it was sufficient for the dismissal of the writ petition. [899B] (2) Review is a creature of a statute and cannot be entertained in the absence of a provision therefor. [897G] Harbhajan Singh vs Karan Singh & Ors., ; ; Patel Chunibhai Dajibhai etc. vs Narayanrao Khanderao Jambekar & Anr., ; referred to. Baijnath Ram Goenka vs Nand Kumar Singh, 40 I.A. 54; Ananatharaju Shetty vs Appu Hegde, AIR 1919 Mad. 244, approved. (3) The earlier two orders of the Competent Officer setting aside the vesting order and transferring the evacuee interest in the property to the respondents were therefor without jurisdiction. [897H 898A] (4) But when the respondents had themselves unlawfully invoked the review jurisdiction of the Competent officer, which did not exist, to their advantage, and to the disadvantage of the appellant, they could not be heard to say, when the Department invoked the self same jurisdiction on two important grounds, that the review orders of the Competent Officer were void for want of jurisdiction and must be set aside for that reason. [898H 899B] (5) The High Court failed to appreciate that while it was true that want of jurisdiction to review the order by the Competent Officer could not be cured by waiver, it would not necessarily follow that the Court was obliged to grant a writ at the instance of a party whose conduct was such as to disentitle it for it. The High Court was exercising its extraordinary jurisdiction and the conduct of the petitioners was a matter of considerable importance. [898E] (6) The High Court did not take due notice of the fact that the respondents had allowed the passing of the impugned orders, in spite of the individual notices to them. It did not notice the further fact that when that order had become final because of the failure to file an appeal or an application for revision it was not permissible in view of the specific bar of Sec. 18 for the respondents to move a "restoration" application and to obtain its reversal by the Competent Officer. [898F G]

By a lease dated 14th December 1948, the respondent plaintiff gave to the appellant defendant on lease two plots Nos. 12 and 13 situated at Sitaladevi Temple Road, Mahim for a period of 15 years commencing from 1st December 1948 at the yearly rent of Rs. 10,200/ payable in equal quarterly instalments of Rs. 2,550/ in advance. The lease deed provided that the appellant was at liberty to erect building and structures on the two plots of land. The appellant agreed to pay and discharge all taxes and outgoings imposed on the above two plots as also on the buildings to be erected by the defendant. On the expiration of the term of the lease, the appellant agreed to deliver back the possession of two plots to the respondent `free of all buildings, erections and structures and levelled and put in good order and condition to the satisfaction of the respondent '. Clause IV of the lease provided for determination and forfeiture of the lease in the event of the rents having been allowed to be in arrears for more than 30 days or upon breach of conditions of the lease. The forfeiture clause also provided that upon forfeiture the respondent would be entitled to re enter upon not only the two plots of land but also the structure standing thereon. The appellant constructed on plot No. 12 a three storied building consisting of about 72 flats, shops with carpet area of 13,000 square feet and the cost of the building with superstructures in 1949 was about Rs. 6,00,000/ . Since the appellant defaulted not only in payment of rent but also in payment of dues in respect of lands and buildings which he erected, the respondent filed a suit in 1951 for ejectment. The appellant filed an application for the fixation of standard rent and the standard rent was fixed at Rs. 435/ per month from September 1, 1950. A compromise was entered into between the parties in the suit on 5th March, 1954, by which they agreed on a rent of Rs. 435/ per month from September 1950 to February 1954. An appeal against the fixation of standard rent of Rs. 435/ per month was disposed of on 28th June, 1955 whereby standard rent was refixed at Rs. 620/ p.m. from 1st September 1950. The appellant again defaulted in payment of rent and taxes. The arrears of rent amounted to Rs. 11,472.30 and taxes to the extent of Rs. 1,12,053.60 for the period ending 30th September 1960. The respondent by a notice determined and forfeited the lease and called upon the appellant to deliver possession of the lands alongwith structures thereupon. The notice also specified that the notice was not only a notice of forfeiture, but also notice under section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. On 1st 1016 December 1961, as the appellant failed to pay the arrears of rent and the taxes, the respondent filed the suit for ejectment and prayed for a decree for ejectment against the appellant in respect of two plots of land Nos. 12 and 13 and also the buildings and structures standing thereon, and claimed arrears of rent of Rs. 11,472.50 and mesne profits at the rate of Rs.620/ p.m. The appellant in order to get the benefit of section 12(3)(b) of the Rent Control Act, 1947, applied for time for making deposit of arrears of rent. The appellant could not make the payment within the extended time allowed, but after the issues were framed and the suit was taken up for trial, he deposited the arrears of rent and cost in the Court after the Court made an endorsement "accept without prejudice". Subsequently, on 11th November, 1964 the Trial Court passed a decree for ejectment in respect of plots and the buildings in favour of the respondent. A decree was granted regarding arrears of rent and for mesno profits. Both the appellant and the respondent preferred appeals and the Bench of two Judges of the Court of Small Causes by a common judgment disposed of both the appeals on 4th April 1965. The Appellate Court held that it had no jurisdiction to give a decree for ejectment in respect of the two buildings constructed on plot No. 12 by the appellant. It held that clause IV of the lease which permitted forfeiture was in the nature of penalty and the appellant was entitled to be relieved from the liability to deliver possession of the buildings constructed by him upon forfeiture by the respondent. It also found that the appellant was entitled to be relieved from the penalty of forfeiture of the lease under section 114 and 114A of the Transfer of Property Act. It rejected the plea of the appellant that he was always ready and willing to pay arrears of rents and found that because of repeated defaults the appellant was not entitled for relief from ejectment under section 12(3)(b) of the Bombay Rent Act. The respondent filed a revision petition against the order of the appellate Court declining to direct possession of the two buildings and the appellant tenant filed an appeal against the order of appellate Court directing his ejectment from the two plots of lands Nos. 12 and 13. The High Court disposed of both the revision petition and the cross appeal by a common judgment whereby it allowed the revision petition of the respondent/landlord and dismissed the appeal of the appellant/tenant and decreed the suit of the respondent directing the appellant to deliver peaceful possession of the land demised to him and also buildings which have been constructed by the appellant on the demised lands. It also confirmed the decree regarding arrears of rents and mesne profits. Hence the appeal by certificate. Dismissing the appeal, the Court. ^ HELD: 1. Section 28 of the Bombay Rent Act, 1947 confers jurisdiction on the Court of Small Cause. Bombay to entertain try any suit for proceedings between a landlord and tenant relating to recovery of rents or possession of any premises to which any of the provisions of that part applied. The Jurisdiction thus conferred enables the Court to try any Suit between the landlord and the tenant relating to recovery of possession of the premises. [1022 A B] Importers and Manufacturers Ltd. vs Pheroze Framroze Taraporewala and Ors. ; Babulal Bhura Mal and Anr. vs Nandram Shivram and Ors., ; ; followed. 1017 Raizada Tapen Das and Anr. vs M/s Gorakhram Gokalchand ; ; Sushila Kashinath Dhonde and Ors. vs Harilal Govinji Bhogani and Ors., ; explained and distinguished. The conditions specified in section 12(3)(b) of the Bombay Rent Act, 1947 will have to be strictly observed by the tenant if he wants to avail himself of the benefits provided under the section. In the instant case, the persistent default of the appellant tenant on various occasions and his clear statement that he was not in a position to pay the arrears would exclude any relief under section 12(3) (b) of the Act. The respondent plaintiff would be entitled to a decree for possession of the plots under the provisions of the Bombay Rent Act and in effect the decree for possession of the land would mean that the land should be delivered to him without the structures. [1023 D G, 1025 D E] Ganpat Lodha vs Sachikant Vishnu Shivale. ; ; applied. 3. To contend that as the respondent plaintiff has sought two reliefs one under the Bombay Rent Act and another under the contract, the entire plaint must be rejected is wrong. In asking for the relief for possession of the land. the respondent plaintiff is entitled to incidental and consequential reliefs such as for effectively taking possession of the plot without the structure, that is he is entitled to ask for the demolition of the superstructure. The prayer in the plaint asking for possession of the land including the structures would not take the suit out of the competence of the Small Causes Court. [1025 E. F G] Ramachandra Raghunath Shirgaonkar vs Vishnu Balaji Hindalekar. ; Khimjee Thakorsee vs Pioneer Fibre Co. Ltd., AIR 1941 Bom. 337 and K Arumugham Naicker and Anr. vs Tiruvalluva Nainar Temple by its Trustee. AIR 1954 Mad. 985; approved.

Section 13A was introduced in Rajasthan Premises (Con trol of Rent and Eviction) Act, 1950 by an Ordinance on September 29, 1975, The Ordinance was later replaced by an Act. Clause (a)of the section provides that no Court shall, in any proceeding pending on the date of the commencement of the Amending Ordinance, pass any decree in favour of a landlord for eviction of a tenant on the ground of non payment of rent under certain circumstances. Clause (b) provides that in every such proceeding the Court shall, on the application of the tenant, made within 30 days from the date of the presentation of the memorandum of appeal or application for revision, determine the amount of rent in arrears. Clause (c) provides that the provisions of els. (a) & (b) shall, mutatis mutandis, apply to all appeals, or applications for revision, preferred or made after the commencement of the Amending Ordinance. Explanation (b) to the section defines a proceeding to mean a suit, appeal or application for revision. Section 22(1) provides that from every decree or order passed by the Court under the Act, an appeal shall lie to the Court to which appeals ordinarily lie :from original decrees and orders passed by such former Court. On the ground of non payment of rent, a decree of evic tion was passed against the appellant, who was the respond ent 's tenant. The High Court having affirmed the decree on appeal, the appellant filed an application for special leave to this Court on September 23, 1975. The Ordinance intro ducing section 19A was passed on September 29, 1975. This Court granted special leave on November. In appeal to this Court it was contended by the appel lant (1) that since the application for special leave was pending before this Court on the date of the commencement of the Ordinance, the case was governed by section 13A (a) and (b) of the Act; (2) in the alternative since, as a result of the grant of special leave, an appeal had been pending before this Court, the appellant was entitled to the protection of section 13A(c) of the Act. Dismissing the appeal, HELD: (Per Chandrachud and Goswami, JJ) (1)(a) In order to attract section 13A(a) a suit, appeal or application for revision must be pending on the date of the commencement of the Ordinance. An application for special leave under article 136 of the Constitution cannot be equated with the ordinary remedy of appeal as of right under any provision of law. It is an extraordinary right conferred under the Constitution, within the discretion of the Supreme Court and an application for special leave does not come within the contemplation of appeal pending before the Court under section 13A(a). The collocation of the words "suit, a. appeal or application for revision" used in the explanation to denote "proceeding", shows that the suits and regular appeals therefrom as provided under the ordinary law and applications for revision alone are intended. [329C & B] 325 (b) The expression "presentation of memorandum of appeal" under section 13A (c) chimes with the construction that the legislature clearly intended to include only the hierarchy of appeals under the Code of Civil Procedure. [330D] (c) Under section 13A(c) read with section 13A(b) in a pending appeal, the tenant has to make an application within 30 days "from the date of presentation of the memorandum of appeal". There is no provision in an appeal by special leave for presentation of memorandum of appeal, under r. 11 of O.XVI. of the Supreme Court Rules, on the grant of special leave, the petition for special leave is treated as the petition of appeal. In contrast under O.41 r. 1(1) of the Code of Civil Procedure, every appeal shall be preferred in the form of a memorandum signed by the appellant and pre sented to the Court. [329H] (d) The terminus a quo for the purpose of section 13A(c) is from the date of presentation of the memorandum of appeal. Since no petition of appeal has to be presented in the Supreme Court after the special leave is granted, such a contingency of appeal to this Court by way of special leave is not intended to be covered by section 13A(c). [330C] (2) Section 22 cannot assist the appellant in this case. While section 22(1 ) qualifies the decree or order as being "under this Act" section 13A does not describe "proceeding" to be under the Act. [330E; 332C] The Act provides for the institution of serious in two different forums namely, the lowest Court of competent jurisdiction, which is the Civil Court, and the other before a Magistrate on the executive side. [332F] Appeals or applications for revision under section 13A(c) relate only to decrees in suits for eviction based on the ground of non payment of rent. Such appeals or applications for revision under section 13A(c) are not contemplated under section 22. Decrees or orders passed by the Court under the Act, against which appeals and revisions are provided in section 22, do not take in decrees and orders passed in a suit for eviction. Usual rights of appeal and revision will be available in the latter class of suits. To hold otherwise will be to deny a right of second appeal to a litigant, whether it is landlord or tenant, against a decree in an eviction suit which is clearly not the intention of the legislature. Second appeal is only barred in case of de crees or orders passed under the Act. [332H] (Per section Murtaza Fazal Ali, J.) Proceedings in this Court would not fall within the ambit of cls. (a) and (b) of section 13A. [338F] (a) The Explanation to the section clearly shows that the word "proceeding" refers only to such proceedings as may be pending in any suit, appeal or application for revision under the Act. The use of the words "such proceedings" in section 13A(b) shows that the proceedings contemplated by section 13A are really proceedings referred to in the explanation, which means proceedings in the nature of suits, appeals or appli cations for revision as referred to in section 22. [338E F] (b) Section 13A(c) would not apply to the present case. The benefit conferred by el. (c) would apply only to appeals and applications for revision filed under the Act as provid ed by section 22. The true interpretation of cl. (c) would be that this clause contemplated the same proceedings as con templated by els. (a) and (b), namely, proceedings indicated in the explanation. [338G H] (c) An appeal by special leave is a special remedy provided by article 136 of the Constitution and the legislature must be presumed to be aware of this special remedy. If the intention was to extend the benefit to appeals for special leave, it should have been clearly stated in el. [339B] (d) The Supreme Court Rules make a clear cut distinction between an application filed for the grant of special leave and a petition of appeal, if the leave is granted. The constituents and ingredients of an application for special leave to appeal are quite different from those of a memoran dum of appeal under O.X.LI r. 1(2) of the Code of Civil Procedure. [339D] 326 (e) The provisions of O.XLI, r. 1(2) C.P.C. require that the memorandum of appeal has to set forth under distinct heads, the grounds of objections to the decree appealed from. No such requirement is to be found in the Supreme Court Rules either for an application for special leave to appeal or in the petition of appeal which is required to be filed if certificate by the High Court is granted. The legislature must be. presumed to be aware of the difference between an application for special leave to appeal and a memorandum of appeal. Though r. 11 of O.XVI of the Supreme Court Rules provides that the petition for special leave would be treat ed as a petition of appeal after the special leave is grant ed,it cannot be equated with a memorandum of appeal contem plated by section 13A(c) of the Act. [339G H] (f) The fact that section 13A(c) mentions the words "from the date of the presentation of the memorandum of appeal or application for revision" clearly indicates that the reme dies contemplated by the Act are remedies of appeal and revision as provided for by section 22 of the Act. [339H]

The respondent landlord filed a petition for eviction of the appellant tenant from the suit premises under section 14(1)(h) of the Delhi Rent Control Act, 1958 on the ground that the appellant had acquired vacant possession of her house on November 20, 1973, after the suit premises had been let out to her on April 1, 1971. The appellant contended that she was not liable to be ejected. The Assistant Rent Controller and the Rent Control Tribunal concurrently held that even though the house owned by the appellant was not in her occupation on the date the petition was filed, it was sufficient for the purpose ors. 14(1)(h) that sometime before the filing of the petition she had obtained vacant possession of the house, and thus had alternative accommodation during November 20 24, 1973, i.e., from the date she obtained vacant possession from her tenant till she sold it. The High Court also held that the ground for ejectment had been made out when the eviction petition was filed. In the appeal before this Court, on behalf of the appel lant tenant it was contended that before the earlier tenant had vacated the house, the appellant had already entered into an oral agreement to sell the house to another person, which was formalized on a written document on November 24, 1973 and as the appellant was under legal obligation to sell the house she was not entitled to enter into and to continue in possession of the house when it was vacated, and there fore, the house could not be said to constitute alternative accommodation, for the purpose ors. 14(1)(h) of the Act. Dismissing the appeal, 749 HELD: The Rent Control Tribunal has found against the existence of any oral agreement for the sale of the suit house. It was only after four days of obtaining possession on November 20, 1973 from the original tenant that the appellant executed an agreement for sale. Thus, it is clear that the appellant came into the house belonging to her on November 20, 1973 and it was available to her for her occu pation. The circumstance that she lost possession on the date when the eviction petition was filed does not protect the appellant against section 14(1)(h) of the Act. [750F G]

The appellant purchased a house in July, 1948. Although neither the vendor nor the appellant was an evacuee within the meaning of the , the appellant was treated as an evacuee and the house was declared evacuee property in 1951. In response to the appellant 's petition filed in 1953, a certificate was granted by the Government under the unamended provisions of section 16 of the Act. When the appellant asked for restoration of the house the Assistant Custodian passed an order in 1957 granting restoration. In the meantime since respondent No. 2 had been inducted as a tenant in the house by the Custodian after it was declared evacuee property the appellant was asked to take symbolic possession of the house allowing the tenant to continue in possession. Section 20A(1) of the provided that where an evacuee had made an application under section 16 of the Evacuee Property Act, 1950 and the Central Government is of opinion that it is not expedient or practicable to restore the whole or any part of the property to the applicant, it shall be lawful for the Central Government to pay to the applicant the value of the property in cash from the compensation pool in lieu of the evacuee property. The Explanation to this section provided that the provisions of this sub section shall apply, whether or not a certificate for the restoration of the evacuee property had been issued to the applicant under section 16(1) of the 1950 Act. The Central Government revised its earlier order dated November 11, 1960 and gave compensation to the appellant under section 20A of the 1954 Act. The appellant 's writ petition challenging the order of the Assistant Custodian was dismissed by the High Court. Dismissing the appeal, ^ HELD: 1. According to section 16 of the 1950 Act, as it stood before October 22, 1956, an application for certificate was to be made to the Central Government. On the issuance of the certificate, restoration order was made by the Custodian of Evacuee Property. In the instant case the certificate was issued on October 27, 1956. The High Court was therefore right in holding that the certificate issued in accordance with the old law was not valid. [995 D F] 2. The provisions of section 20A(1) have got the over riding effect by virtue of the Explanation appended to it even after a certificate for the restora 994 tion of the evacuee property had been issued to the applicant on October 27, 1956. In spite of the certificate it was open to the Central Government not to allow restoration of the house to the appellant and to pay him compensation only. The Central Government has adopted the latter course. Respondent No. 2, a displaced person, was inducted as a tenant in the property a long time back. The property was sold to him by the Custodian. In such a situation it was just and proper to refuse restoration of the property to the appellant and to pay him only compensation. [996 F H]

The appellant, who was at the time the Karta of a Hindu Joint Family, gave notice in January, 1954, to the respondent State under section 80 of the Civil Procedure Code. Thereafter a suit was filed in July, 1954, by which time a partition had taken place in the family. In view of this the appellant 's three grand sons were joined as plaintiffs in the suit the plaintiffs sought a declaration that three nazul plots in suit had been in the possession of the plaintiffs and their ancestors from time immemorial and their status was that of Raiyat Sarkar; so that an order of the State Government in the Survey and Settlement Department refusing to recognise their possession over the plots was wrong and ultra vires. Apart from contesting the suit on the merits, the respondent State contended that plaintiffs 2, 3 and 4 i.e. the appellant 's grand sons had no right to institute a suit because no notice under section 80 C.P.C. was given on their behalf. The trial court dismissed the suit. In an appeal, the High Court held that the appellant had lost the right to represent the joint family as karta at the time of institution of the suit because their had been severence of joint status and the notice served by him could not enure to the benefit of other plaintiffs. On the merits the High Court found that the plaintiffs had shown their possession for the statutory period of 6 years. On appeal to this Court, HELD: (1) The notice given by the appellant in January, 1954, was sufficient in law to sustain a suit brought by all the divided coparceners who must be deemed to be as much the authors of the notice as the Karta who was the actual signatory of the notice. There was substantial identity between the person giving the notice and the persons bringing the suit in the present case. [959 B] At the time of giving notice the appellant was admittedly the eldest member of the joint family and being a Karta he was entitled to represent the joint family in all its affairs. The cause of action had accrued at the time of giving of the notice and it was not necessary to give a second notice merely because there was a severance of the joint family, before 20th July, 1954, when the suit was actually instituted. [958 G H] Although the terms of section 80 C.P.C. must be strictly complied with, that does not mean that the terms of the notice 'should be scrutinised in an artificial or pedantic manner. [960 A] Dhian Singh Sobha Singh & Anr. vs The Union of India, ; , referred to, 956 State of Andhra Pradesh vs Gundugola Venkata Suryanarayan Garu, ; ; Vellayan Chettiar & Ors. vs Government of the Province of Madras and Anr. , A.I.R. 1947, P.C. 197; Government of the Province of Bombay vs Pestonji Ardeshir Wadia & Ors., 76 I.A. 85, distinguished. (2) On the merits, the appellants had failed to produce reliable oral or documentary evidence to prove that their ancestors had possession over the disputed land for many years. On the contrary this land was always recognised as Milkiat Sarkar and the respondent State Government was justified in holding it as such.

Appeal No. 3 of 1958. Appeal from the judgment and decree dated October 8, 1956, of the Rajasthan High Court in Civil Regular Appeal No. 1 of 1953. section T. Desai and B. P. Maheshwari, for the appellants. N. C. Chatterjee and H. P. Wanchoo, for the respondent. April 25. The Judgment of the Court was delivered by SINHA, C. J. The substantial question for determination in this appeal is whether or not the two hundis sued upon were admissible in evidence. The learned Trial Judge held that they were, and in that view of the matter decreed the suit in full with costs and future interest, by his judgment and decree dated September 26, 1952. On appeal, the High Court of Rajasthan at Jodhpur, by its judgment and decree dated October 8, 1956 allowed the appeal and dismissed the plaintiffs ' suit. Each party was directed to bear its own costs throughout. The High Court granted the necessary certificate under article 133(1)(a) of the Constitution. That is how the appeal is before us. It is only necessary to state the following facts in order to appreciate the question of law that has to be determined in this appeal. The defendant respondent is said to have owed money to the plaintiffs, the appellants in this case, during the course of their business as commission agents for the defendant, at 335 Bombay. Towards the payment of those dues, the defendant drew two mudatti hundis in favour of the plaintiffs, for the sum of 35 thousand rupees, one for 20 thousand rupees payable 61 days after date, and the other for 15 thousand rupees payable 121 days after date. The plaintiffs endorsed the two hundis to G. Raghunathmal Bank and asked the Bank to credit their account with the amount on realisation. On the date of their maturity, the Bank presented those hundis to the defendant, who dishonored them. Thereupon the Bank returned the hundis to the plaintiffs. As the defendant did not pay the amount due under those documents on repeated demands by the plaintiffs, they instituted a suit for realisation of Rs. 39,615, principal with interest. On those allegations, the suit was instituted in the Court of District Judge, Jodhpur, on January 4, 1949. It is not necessary to set out the defendant 's written statement in detail. It is enough to state that the defendant admitted the execution of the hundis, but alleged that they had been drawn for purchasing gold in future and since the plaintiffs did not send the gold, the hundis were not honoured or accepted. It was denied that the defendant owed any amount to the plaintiffs or that the hundis were drawn in payment of any such debt. It was thus contended that the hundis were without consideration. The most impor tant plea raised by the defendant in bar of the suit was that the hundis were inadmissible in evidence because they had not been stamped according to the Stamp Law. On those pleadings, a number of issues were joined between the parties, but the only relevant issue was issue No. 2 in these terms: "Whether the two hundis, the basis of the suit, being unstamped, were inadmissible in evidence? (OD*)" (*which perhaps are meant to indicate that the onus was on the defendant in respect of this issue). It appears that the defendant led evidence first, in view of the fact that the onus lay on him. He was examined as D.W.5, and in his examination in chief he 336 stated, "I did not receive any gold towards, these hundis I asked them to return the hundis, but 'they did not return them. , I had ' drawn the two hundis marked exhibit P. ' I and exhibit P. 2. They are written in Roopchand 's hand. I did not receive any notice to honour these hundis. " His other witnesses, D.Ws. 1, 2 and 4 were examined and cross examined with reference to the terms of the hundis and as to who the author of the hundis was. All along during the course of the recording of the evidence on behalf of the parties, these hundis have been referred to as exhibit P. I. and exhibit P. 2. The conclusion of the learned Trial Judge on issue No. 2 was in these terms: "Therefore, in this case the plaintiff having paid the penalty, the two documents in suit having been exhibited and numbered under the signatures of the presiding officer of court and the same having thus been introduced in evidence and also referred to and read in evidence by the defendant 's learned counsel, the provisions of sec. 36 of the Stamp Act, which are mandatory, at once come into play and the disputed documents cannot be rejected and excluded from evidence and they shall accordingly properly form part of evidence on record. Issue No. 2 is thus decided against the defendant. " The suit was accordingly decreed with costs, as stated above. On appeal by the defendant to the High Court, the High Court also found that the hundis were marked as Exs. P. 1 and P. 2, with the endorsement "Admitted in evidence" and signed by the Judge. The High Court also noticed the fact that when the hundis were executed in December, 1946, the Marwar Stamp Act of 1914 was in force and sections 9 and 11 of the Marwar Stamp Act, 1914, authorised the Court to realise the full stamp duty and penalty in case of unstamped instruments produced in evidence. Section 9 further provi ded that on the payment of proper stamp duty, and the required penalty, if any, the document shall be admissible in evidence. It was also noticed that when the suit was filed in January, 1949, stamp duty and penalty were paid in respect of the hundis, acting upon the law, namely, the Marwar Stamp Act, 1914. 337 The High Court also pointed out that the ' documents appear to have been Admitted in evidence because the Trial court lost sight of the fact that in 1947 a new Stamp Act had come into force in the former State of Marwar, amending the Marwar Stamp Act of 1914. The "new law was, in terms, similar to the Indian Stamp Act. The High Court further pointed out that after the coming into effect of the Marwar Stamp Act, 1947 the hundis in this case could not be admitted in evidence, in view of the provisions of section 35, proviso (a) of the Act, even on payment of duty and penalty. With reference to the provisions of section 36 of the Stamp Act., the High Court held that the plaintiffs could not take advantage of the provisions of that section because, in its opinion, the admission of the two hundis 'was a pure mistake '. Relying upon a previous decision of the Rajasthan High Court in Ratan Lal vs Dan Das (1), the High Court held that as the admission of the documents was pure mistake, the High Court, on appeal, could go behind the orders of the Trial Court and correct the mistake made by that Court. In our opinion, the High Court misdirected itself, in its view of the provisions of section 36 of the Stamp Act. Section 36 is in these terms: "Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. " That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by section 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the (1) I.L.R. 338 document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exs. P. 1 and P. 2 and bore the endorsement 'admitted in evidence ' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross examination of their witnesses, section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. In our opinion, the High Court has erred in law in refusing to act upon those two hundis which had been properly proved if they required any proof, their execution having been admitted by the executant himself. As on the finding,% no other question arises, nor was any other question raised before us by the parties, we accordingly allow the appeal, set aside the judgment and decree passed by the High Court and restore those of the Trial Court, with costs throughout. Appeal allowed.

The respondent admitted the execution of two Hundis in suit which were tendered and marked as exhibits but denied consideration and raised the plea that the hundis exhibited were inadmissible in evidence as at the time the suit was filed in 1949 they had not been stamped according to the Stamp Law. When the hundis were executed in December, 1946, the Marwar Stamp Act of 1914 was in force and sections 9 and 11 of that Act authorised the court to realise the full stamp duty and penalty in case of unstamped instruments produced in evidence, whereupon the documents were admissible in evidence. The High Court pointed out that after coming into force of the Marwar Stamp Act, 1947, (Similar to Indian Stamp Act) which had amended the 1914 Act, the hundis in question could not be admitted in evidence in view of the provision of section 35 proviso (a) of the Marwar Stamp Act, 1947, even on payment of duty and penalty and the appellant could not take advantage of section 36 of the 1947 Stamp Act, because 'the admission of the two hundis was a pure mistake as the Trial Court had lost sight of the 1947 Stamp Act and the appeal Court could go behind the orders of the Trial Court and correct the mistake made by, thAt Court. Held, that once the Court, rightly or Wrongly decided to 43 334 admit the document in evidence, so far as the parties were concerned, the matter was closed. The court had to judicially determine the matter as soon as the document was tendered in evidence and before it was marked as an exhibit in the case, and once the document had been marked as an exhibit and the trial had proceeded on that footing section 36 of the Marwar Stamp Act, 1947, came into operation, and, thereafter, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order was not one of those judicial orders which are liable to be revised or reviewed by the same court or a court of superior jurisdiction. Ratan Lal vs Dau Das, I.L.R. , disapproved.

Ram Charan obtained a money decree against the Union of India. An appeal was filed against that decree in the High Court. Ram Charan respondent died on july 21, 1957. On March 18, 1958, an application was filed in the High Court under 0.22, R .4 read with section 151 of the Code by Civil Procedure stating that the respondent had died on July 21, 1957 and the Divisional Engineer, Telegraphs, learnt of his death on February 3, 1958 and the deceased had left his widow and an adopted son as his legal representatives. A prayer was made to bring the legal respresentatives of the deceased on record. The High Court dismissed the application on the ground that the appellant had failed to show sufficient cause for not bringing the legal representatives of the deceased on record within time. The appeal was also dismissed. In the appeal before this Court, it was contended on behalf of the appellant that the mere ignorance of death of the respondent was sufficient cause for the appellant 's inability to apply for the impleading of legal representatives within time unless the appellant was guilty of some negligence or some act or omission which led to delay in his making the application, that once the respondent was served no duty was cast on the appellant to make further enquiries about the state of health of the respondent, that expresssion sufficient cause ' should be liberally construed in order to advance the cause of justice, that the Court itself had inherent power to add legal representatives to do justice to the party and that the High Court misapplied the decision of the Full Bench 468 in Firm Dittu Ram Eyedan vs Om Press Co. Ltd. to the facts of the present case. Held that limitation for an application to set aside the abatement of an appeal starts on the death of the respondent and not from the date of the appellant 's knowledge thereof. Held also that the Court is not to invoke its inherent powers under section 151 C.P.C. for the purpose of impleading legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring legal representatives of the deceased on the record and when its application for setting aside abatement was not allowed on account of its failure to satisfy the court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for setting aside of the abatement within time. Held also that the expression sufficient cause ' is not to be liberally construed either because the party in default was the Government or because the question arose in connection with the impleading of the legal representatives of the deceased respondent. The Court should not readily accept whatever is alleged to explain away the default. The delay in making the application should not be for reasons which indicate the negligence of the party making the application in not taking certain steps which he could have and should have taken The court has to be satisfied that there were certain valid reasons for the applicant not knowing the death within a reasonable time. The bare statement of the applicant is not enough. Firm Dittu Ram Eyedan vs Om Press Co. Ltd. (1960) 1 I.L.R Punjab. 935 (F.B.), State of Punjab vs Nathu Ram ; and Jhanda Singh vs Gurmukh Singh C. A. No. 344 of 1936 dated 10.4.62, referred to.

H & S filed a suit against the appellant for recovery of money and during the pendency of the suit a document was executed on the 7th February, 1949, whereby H & S transferred to the respondents all book and other debts due to them together with all securities for the debts and all other property to which they were entitled in connection with their business in Bombay. One of the book debts was the subject matter of the suit, but there was no mention in that document of the suit or the decree to be passed in the suit. The respondents did not take any steps under Order XXII, rule 10, of the Code of Civil Procedure to get themselves substituted as plaintiffs in the place of H & S, but allowed the suit to be continued in the name of the original plaintiffs, and on the 15th December, 1949, a decree was passed in favour of H & S against the appellant. On the 25th April, 1951, the respondents filed in the City Civil Court, Bombay, an application for execution of the decree under Order XXI, rule 11 of the Code, and a notice under Order XXI, rule 16 was issued by the Court calling upon H & S and the appellant to show cause why the decree should not be executed by the transferees, the respondents. The appellant contended inter alia that as the respondents were only the assignees of the debt which was the subject: matter of the suit and not of the decree itself they were not entitled to execute the decree. Held, that the respondents as the transferees of the debt which was the subject matter of the suit were entitled to make an application for execution of the decree under section 146 of the Code of Civil Procedure as persons claiming under the decree holder. The effect of the expression " save as otherwise provided in this Code" contained in section 146 is that a person cannot make an application under section 146 if other provisions of the Code are applicable to it. Per DAs and IMAM JJ., BHAGWATI J. dissenting. Order XXI, rule 16, by the first alternative, contemplates the actual transfer by an assignment in writing of a decree after it is passed and while a transfer of or an agreement to transfer a decree that may be passed in future may, in equity, entitle the transferee to claim the beneficial interest in the decree after it is passed, such 1370 equitable transfer does not render the transferee a transferee of the decree by assignment in writing within the meaning of Order XXI, rule 16. Per DAS J. The transfer in writing of a property which is the subject matter of a suit without in terms transferring the decree passed or to be passed in the suit does not entitle the transferee to apply for execution of the decree under Order XXI, rule 16, as a transferee of the decree by an assignment in writing. If by reason of any provision of law, statutory or otherwise, interest in property passes from one person to another, there is a transfer of the property by operation of law. There is no warrant for confining transfers "by operation of law" to the three cases of death, devolution or succession or to transfers by operation of statutory laws only. If the document in question could be construed to be a transfer of or an agreement to transfer the decree to be passed in future, then on the decree being passed, by operation of equity, the respondents would become the transferees of the decree by operation of law within the meaning of Order XXI, rule 16. Per BHAGWATI J. Section 5 of the Transfer of Property Act defines a "transfer of property" as an act by which the transferor conveys property in present or in future to the transferee or transferees. The words "in present or in future" qualify the word "conveys" and not the word "property" in the section. A transfer of property that is not in existence operates as a contract to be performed in the future which may be specifically enforced as soon as the property comes into existence. It is only by the operation of this equitable principle that as soon as the property comes into existence and is capable of being identified, equity taking as done that which ought to be done, fastens upon the property and the contract to assign becomes a complete equitable assignment. There is nothing in the provisions of the Code of Civil Procedure or any other law which prevents the operation of this equitable principle, and an assignment in writing of a decree to be passed in future would become a complete equitable assignment on the decree being passed and would fall within the "assignment in writing" contemplated by Order XXI, rule 16 of the Code. A mere transfer of property as such does not by itself spell out a transfer of a decree which has been passed or may be passed in respect of that property and it would require an assignment of such decree in order to effectuate the transfer. But where the property is an actionable claim within the meaning of the definition in section 3 of the Transfer of Property Act and is transferred by means of an instrument in writing, the transferee could by virtue of section 130 of the Transfer of Property Act step into the shoes of the transferor and claim to be the transferee of the decree and apply for execution of the decree under Order XXI, rule 16 of the Code of Civil Procedure. Per IMAM J. There must be a decree in existence which is transferred before the transferee can benefit from the provisions 1371 of rule 16. The ordinary and natural meaning of the words of rule 16 can carry no other interpretation and the question of a strict and narrow interpretation of its provisions does not arise. Case law reviewed.

In a suit filed in the High Court for a declaration and relief in respect of several properties, the Official Receiver of the High Court was appointed Receiver. On the request of the parties, the official Receiver, decided to sell one of the properties with the permission of the Court. The price of the property was fixed at Rs. 3.5 lakhs. The appellant offered a sum of Rs. 4 lakhs for purchase of the property, and by his advocate 's letter enclosed a draft for Rs. 1 lakh, being 1/4 of the amount. A meeting was held in the presence of the plaintiff and their counsel, and at the meeting the offer received from the appellant was considered and it was decided that the offer of Rs. 4 lakh by bank draft. The Official Receiver accepted the offer of the appellant, communicated the acceptance and requested the appellant to deposit the balance amount. The Official Receiver, thereafter moved the High Court for directions to remove respondents 1 to 4 on the ground that they had trespassed into the property a few months earlier. Respondents 1 to 4 moved an application for being impleaded in the suit and contended that they were residing with their families under a licence since 1975 and had constructed pucca huts thereon and that with the knowledge of this continuous possession, the parties to the suit have filed the suit among themselves without impleading them (respondents 1 to 4). 583 The Single Judge rejected the aforesaid contentions of respondents 1 to 4 and held that though they were prepared to offer the sum of Rs. 1 lakh more than the appellant the property could not be sold to them. The Division Bench, however allowed their appeal, directed respondents 1 to 4 to pay to the Official Receiver a sum of Rs. 1.25 lakhs immediately and the balance of Rs. 3.75 lakhs thereafter and on such payment ordered sale of the disputed property to respondents 1 to 4 and their 34 nominees on the ground that the Court should do social justice and in doing such justice no technicality of law would stand in its way. Dismissing the Appeal to this Court, ^ HELD: [Per Fazal Ali & Sabyasachi Mukharji, JJ Majority] In administering justice social or legal jurisprudence has shifted away from finespun technicalities and abstract rules to recognition of human beings as human beings. The Division Bench of the High Court had adopted the above approach, and no law is breached by the view taken by it. It is improper for this Court in exercise of the discretion vested under article 136 of the Constitution to interfere with that decision. [595 FG; 622A B] [Per Fazal Ali, J.] 1. In our opinion, there appears to be some misapprehension about what actually social justice is. There is no ritualistic formula or any magical charm in the concept of social justice. All that it means is that as between two parties if a deal is made with one party without serious detriment to the other, then the Court would lean in favour of the weaker section of the society. Social justice is the recognition of greater good to larger number without deprivation of accrued legal rights of anybody. If such a thing can be done then indeed social justice must prevail over any technical rule. It is in response to the felt necessities of time and situation in order to do greater good to a larger number even though it might detract from some technical rule in favour of a party. Living accommodation is a human problem for vast millions in our country.[595B D] 2. Call it social justice or solving a socioeconomic problem or give it any other name or nomenclature, the fact of the matter is that this was the best course in the circumstances that could have been adopted by the court. Justice social, economic and political is preamble to our Constitution. Administration of justice can no longer be merely protector of legal rights but must whenever possible be dispenser of social justice. [595H 596A] 4. The Division Bench of the High Court has done substantial justice by throwing aboard the technicalities particularly for the reason that courts frown over a champartous litigation or agreement even though the same may be valid. The Division Bench by its decision got more 584 money for the owners on the one hand and one the other sought to rehabilitate the 38 families of the respondent who had already built permanent structures. [597G H] In the instant case, the Division Bench was perfectly justified in accepting the offer of the respondents because: (a) the respondents were prepared to pay Rs. 1 lakh more than the appellant and the appellant did not pay the balance of Rs. 3 lakhs, (b) possession being 9/10th of title, the respondents being in actual possession would have no difficulty in becoming the owners, (c) respondents were prepared to purchase the property notwithstanding litigation, because if they became owners no one could challenge their title or possession. The Single Judge completely ignored two material aspects: (a) that a bulk of the consideration money viz. Rs. 3 lakhs out of Rs. 4 lakhs was not paid by the appellant, and (b) that an owner also has right to impose certain conditions, and in exercise of that, the condition that the purchase would have to buy the land subject to the pending litigation was imposed [579C F; 5 6A D] (Per Varadarajan, J. dissenting) 1. The Division Bench had no right or justification to alter or modify the earlier order made for the sale of the property which had become final, or to hold that a subsequent offer made by respondents 1 to 4 to purchase the property for Rs. 5 lakhs should be accepted merely because it appears to be advantageous to the owners of the property in the name of social justice. [612F] 2. The benefit claimed on behalf of respondents 1 to 4 which cannot called a right, for there is no corresponding obligation cannot be equated with or even brought anywhere near the social justice mentioned in the preamble of the Constitution. [612G] 3. Respondents 1 to 4 are trespassers in respect of the property which is in custodia legis and they are in contempt of the Court. They cannot be allowed to continue to be in contempt and urge it as a ground for obtaining the benefit of the sale of the property in their favour. If the appellant has not complied with any condition it may be ground for the owners and the Official Receiver not to accept his offer and refuse to sell the property to him and not for respondents 1 to 4 to raise any objection. The offer has been accepted rightly or wrongly more than once and there fore the appellant may have a right to sue for specific performance of the contract on the basis of that acceptance by the official Receiver given with the approval of the parties. The same is the position in regard to the delay of about a month in paying the balance of Rs.3 lakhs by the appellant. [611D F] In the instant case, the property has been agreed to be sold by private treaty and the Official Receiver has been authorised to sell the property either by public auction or by private treaty. The Court does not come into the picture in such a case and there is no need for the Court to approve 585 or confirm such sale. The parties who are sui juris must be deemed to have known their interest best when they chose to approve the sale of the property for Rs. 4 lakhs in favour of the appellant notwithstanding the fact that respondents 1 to 4 had offered to purchase the property for Rs.5 lakhs. The appeal has therefore to be allowed. [612E; 613B] Everest Coal Company (P) Ltd vs State of Bihar & Others, [1974] 1 SCR P. 571 at P. 573, Kayjay Industries (P) Ltd. vs Asnew Drums (P) Ltd & Others, [1974] 3 SCR P. 678, Jibon Krishna Mukherjee vs New Bhee bhum Coal Co. Ltd. & Apr., [1960] 2 SCR P. 198. Tarinikamal Pandit & Others vs Prafulla Kumar Chatterjee, [1979] 3 SCR P. 340, referred to. (Per Sabyasachi Mukherji, J) 1. The pendency of the proceedings under Section 145 of the Code of Criminal procedure and order, if any, passed thereon does not in any way affect the title of the parties to the disputed premises though it reflects the factum of possession. [616D] Bhinka and Others vs Charan Singh, [1959] Supp. 2 S.C.R. P.798 referred to. When the property is in custody of a receiver appointed by the court, the property is in the custody of the court and interference with such possession should not be encouraged and no party can acquire any title or right by coming in or over the property which is in the possession of the receiver or sanction of the court[618F] Halsbury 's Laws of England, 4th Edn., Vol, 39 pages 451,452 paragraph 890,891: Kerr On Receivers 16th Edn. pages 121 referred to. The concept to social justice is not foreign to legal justice or social well being or benefit to the community rooted in the concept of justice in the 20th century. The challenge of social justice is primarily a challenge to the society at large more than to the court immediately. Social justice is one of the aspirations of our Constitution. But the courts, are pledged to administer justice as by law established.[620F] In the instant case, in formulating the concept of justice, however, the inarticulate factor that large number of human beings should not be dislodged from their possession if it is otherwise possible to do so cannot but be a factor which must and should influence the minds of judges. It is true that the persons who were alleged to be in possession are with unclean hands, but they came for shelter and built in hutments. They do not want to be rehabilitated at competitive bargain price. In the circumstances they should not be denied rehabilitation on the ground of their original illegitimacy. The felt necessities of time and in this case the convenience of the situation and the need for adjusting the rights of a larger number of 586 people without deprivation of any accrued right of anybody would be justice according to law. Before social justice as something alien to legal justice, is rejected, it should be remembered that a meaningful definition of the rule of law must be based on the realities of contemporary societies and the realities and the realities of the contemporary societies are men are in acute shortage of living accommodation and if they are prepared to bargain and rehabilitate themselves on competitive terms, they should be encouraged and no technical rules should stand in their way. That would be justice by highways ' and not infiltration 'by bye lanes '. [621H 622B]

A common question of law having arisen in this group of cases for determination by this Court, they were heard together. Lands of Respondents in Civil Appeal Nos. 2839 40 of 1989 were acquired under the Land Acquisition Act. The Collector made the award for compensation on March 30, 1963 and on a reference, being made under Section 18 of the Act, the Additional District Judge enhanced the compensation by his order dated June 10, 1968. The Respondents appealed to the High Court seeking further enhancement. During the pendency of the appeal, Land Acquisition (Amendment) Bill 1982 was introduced on April 30, 1982 and became an Act on Sept. 24, 1984. The High Court disposed of the appeal on Dec. 4, 1984 and apart from raising the quantum of compensa tion, also awarded a solatium at 30 per cent in terms of the Amendment Act 1984. The State appealed to this Court. The matter initially came up before a Division Bench on September 23, 1985. The Bench had before it two decisions of this Court wherein divergent views were expressed. The two decisions were: In K. Kamalajammanniavaru 's (dead) by Lrs. vs Special Land 317 Acquisition Officer,, This Court (composed of.two Judges) took the view that award of 30 per cent solatium under the amended Section 23(2) by the High Court or the Supreme Court were applicable only where the award appealed against was made by the Col lector or the Court between April 30, 1982 and Sept. 24, 1984. In the second decision, Bhag Singh & Ors. vs Union Territory of Chandigarh, ; , this Court (comprised of three Judges) took a contrary view and ruled that even if an award was made by the Collector or the Court on or before April 1982 and an appeal against such award was pending before the High Court or this Court on 30.4.1982 or was filed subsequent to that date, the provisions of amended Section 23(2) and 28 of the Land Acquisition Act would be applicable as the appeal was a continuation of the reference made under Section 18 and as such the appellate Court must apply the amended provision on the date of the decision of the appeal. In this way the decision in Kamalajammanniava ru 's case was overruled by this Court in Bhag Singh 's case and the Court approved another decision of Division Bench comprised of three Judges in Mohinder Singh 's case which merely directed payment of enhanced solatium and interest without giving any reasons. In view of the conflicting decisions on the point of two Judges Bench before, whom these cases come up for considera tion, referred to this Larger Bench the question: whether under the Amended Section 23(2), the claimants were entitled to solatium at 30 per cent of the market value irrespective of the dates on which the land acquisition proceedings were initiated or on the dates on which the award had been passed. Overruling the preliminary objection as to the maintain ability of the reference of matters to a larger Bench, this Court disposing of the reference and directing that the appeals be now listed for hearing on merits, HELD: Solatium is awarded under sub section (2) of Section 23 of the Land Acquisition Act. Before the Amendment Act was enacted, the Sub section provided for solatium at 15 per cent of the market value. By the change introduced by the Amendment Act the amount has been raised to 30 per cent of the market value. Sub section (2) of Section 30 of the Amendment Act specifies the category of cases to which the amended rate of solatium is attracted. [322D] 318 What Parliament intends to say is that the benefit of Section 30(2) will be available to an award by the Collector or the Court made between 30th April 1982 and 24th September 1984 or to an appellate order of the High Court or of the Supreme Court which arises out of an award of the Collector or the Court made between the two said dates. The word 'or ', is used with reference to the stage at which the proceeding rests at the time when the benefit under Section 30(2) is sought to be extended. If the proceeding has terminated with the award of the Collector or of the Court made between the aforesaid two dates, the benefit of Section 30(2) will be applied to such award made between the aforesaid two dates. If the proceeding has passed to the stage of appeal before the High Court or the Supreme Court, it is at that stage when the benefit of Section 30(2) will be applied. But in every case the award of the Collector or of the Court must have been made between April 30, 1982 and September 24, 1984. [339D G] A pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be bind ing, it is not necessary that it should be a decision ren dered by the full Court or a Constitution Bench of the Court. For the purpose of imparting certainty and endowing due authority, decisions of this Court in the future should be rendered by Division Benches of at least three Judges unless, for compelling reasons that is not conveniently possible. [337C D] The Land Acquisition Bill 1982, was introduced in the House of the People on 30th April, 1982 and upon enactment the Land Acquisition Act, 1984, commenced operation with effect from 24th Sept. 1984. Section 15 of the Amendment Act amended Section 23(2) of the parent Act and substituted the words "30 per cent" in place of the words "15 per cent". Parliament intended that the benefit of the enhanced solati um should be made available albeit to a limited degree even in respect of acquisition proceedings taken before the date. It sought to effectuate that intention by enacting Section 30(2) in the Amendment Act. [337G H; 338A] There can be no doubt that the benefit of the enhanced solatium is intended by Section 30(2) in respect of an award made by the Collector between 30th April 1982 and 24th September 1984. Likewise the benefit of the enhanced solati um is extended by Section 30(2) to the case of an award made by the Court between April 30, 1982 and September 24, 1984, even though it be upon reference from an award made before April 30, 1982. [338E] 319 One of the functions of the Superior Judiciary in India is to examine the competence and validity of legislation both in point of legislative competence as well as its consistency with the Fundamental Rights. In this regard the Courts in India possess a power not known to the English Courts. [323G H] Exp. Canon Selwyn, and Cheney vs Conn, , referred to. The range of judicial review recognised in the Superior Judiciary of India is perhaps the widest and the most exten sive known to the world of law. The power extends to examin ing the validity of even an amendment to the Constitution for now it has been repeatedly held that no Constitutional amendment can be sustained which violates the basic struc ture of the Constitution. [324B] His Holiness Kesavananda Bharti Sripadagalavaru vs State of Kerala, ; Smt. Indira Nehru Gandhi vs Shri Raj Narain, ; Minerva Mills Ltd. and others vs Union of India and others, [1980] 2 SCC 591; S.P. Sampath Kumar etc. vs Union of India and Ors. , ; The Court overruled the statement of the law laid down in the cases of State of Punjab vs Mohinder Singh & Anr. and Bhag Singh and Others vs Union Territory of Chandigarh and preferred the interpretation of Section 30(2) of the Amend ment Act rendered in K. Kamalajammanniavaru (dead) by Lrs. vs Special Land Acquisition Officer. Oliver Wendell Holmes, "The Common Law", p. 5; Oliver Wendell Homes, "Common Carriers and the Common Law", [1943] 9 Curr. L.T. 387, 388; Julius Stone, "Legal Systems & Law yers Reasoning", p. 58 59; Roscoe Pound, "An Introduction to the Philosophy of Law", p. 19; "The Judge as Law Maker", pp. Myers vs Director of Public Prosecutions, L.R. 1965 A.C. 1001 & 1021; The Bengal Immunity Company Limited vs The State of Bihar and Others, ; Street Tramways vs London County Council, ; ; Radcliffe vs Ribble Motor Services Ltd., ; 245; Dr. Alan Paterson 's "Law Lords", [1982] pp. 156 157; Jones vs Secretary of State for Social Services, [1972] A.C. at 966; Ross Smith vs Ross Smith, , 303; Indyka vs Indyka, [1969] I A.C. 33, 69; Construction by Jones, at 966; Steadman vs Steadman, , 542; DPP vs Myers, [1965] A.C. 1001, 320 1022; Cassell vs Broome,/1972] A.C. 1027, 1086; Haughton vs Smith, [1975] A.C. 476,500; Knullerv. DPP, [1973] A.C. 435,455; Conway vs Rimmer, ; , 938; Tramways case; , ; State of Washington vs Dawson & Co., , ; David Burnel vs Coronado Oil & Gas Company, ; , ; Compare National Bank vs Whitney, ; , 26 L.Ed. 443 444; Compensation to Civil Servants, , A.I.R. , 87; Attorney General of Ontario vs The Canada Temperance Federation, L.R. 78 I.A. 10; Phanindra Chandra Neogy vs The King, ; ; State of Bombay vs The United Motors (India) Ltd.; , ; Maganlal Chhagganlal (P) Ltd. vs Municipal Corporation of Greater Bombay & Ors., ; ; Lt. Col. Khajoor Singh vs The Union of India & Anr., ; ; Keshav Mills Compa ny vs Commissioner of Income Tax; , , 921; Sajjan Singh vs State of Rajasthan, ; , 947948; Girdhari Lal Gupta vs D.H. Mill; , ; Pillani Investment Corporation Ltd. vs I.T.O. 'A ' Ward, Calcutta & Ant., ; ; Ganga Sugar Company vs State of Uttar Pradesh; , , 782; Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; T.V. Vatheeswaran vs The State of Tamii Nadu, ; Sher Singh & Ors. vs State of Punjab, ; ; Triveniben vs State of Gujarat, AIR 1989 SC 142; John Martin vs The State of West Bengal, ; ; Haradhan Saha vs State of West Bengal, ; ; Bhut Nath Mate vs State of West Bengal; , ; Mattulal vs Radhe Lal, ; ; Acharaya Maharajshri Narandraprasadji Anandprasadji Maharaj etc. vs The State of Gujarat & Ors., ; ; Union of India & Ors. vs Godfrey Philips India Ltd., ; ; Jit Ram vs State of Haryana, ; ; Motilal. Padampat Sugar Mills vs State of U. P.; ,

Pursuant to the directions of the Income tax Appellate Tribunal, the Income tax Officer, determined the assessee 's capital gains under section 12B of the Income tax Act, 1922. He did not, however, make any order under section 23(3) of the Act, nor did he issue a notice of demand under section 29 of the Act. The assessee filed an application before the Commissioner of Income tax, under section 33A(2) of the Act, for revising the computation made by the Income tax Officer drawing his attention to a decision of the Bombay High Court in Baijnath 's case, , as to how the capital gains should be ascertained. That decision was based upon a consideration of the very documents which were the basis of the assessees ' claim. The Commissioner dismissed the revision petition as not maintainable, as well as on merits, ignoring the Bombay decision. Meanwhile, the assessee filed an application requesting the Income tax Officer to issue a notice of demand under section 29, to enable him to file an appeal, but the Officer declined to do so. The assessee filed a writ application in the High Court for issuing appropriate writs to the Commissioner and the Income tax Officer, but the High Court dismissed it in limine. In his appeal to this Court, the assessee contended that (i) the High Court erred in holding that the affidavit filed in support of the writ petition was not in accordance with law, and that even if there were any defects the High Court should have given him an opportunity to rectify them, and (ii) the High Court erred in distinguishing the Bombay decision and in holding that there was no force in the revision filed before the Commissioner, and that, the High Court should have directed the Commissioner to entertain the revision and dispose of it in accordance with law by giving suitable directions to the Income tax Officer. The respondent raised a preliminary objection that as the order of the Commissioner was an administrative act, article 226 of the Constitution could not be invoked. HELD:(i) As no appeal lay to the Appellate Assistant Commissioner against the calculations made by the Income tax Officer, the Commissioner had powers under section 33A(2) to revise the Income tax Officer 's order. The jurisdiction conferred on the Commissioner by the section is a judicial one, The nature of the jurisdiction and the rights decided carry with them necessarily the duty to act judicially in disposing of the revision. Further, the fact that a Division Bench of one of the High Courts in India had taken a view in favour of the assessee, indicated that the question raised was arguable and required serious consideration. Therefore, a writ of certiorari quashing the order of the Commissioner dismissing the assessee 's revision petition, should be issued. [544E G; 548D] 537 Sitalpore Colliery Concern Ltd. vs Union of India, , Additional Income tax Officer, Cuddapah vs Cuddapah Star Transport Co. Ltd. and Suganchand Saraogi vs Commissioner of Income tax, , overruled. Even if the Commissioner only made an administrative order in refusing, to give any direction to the Income tax Officer, the assessee would still be entitled to approach the High Court under article 226, and a writ of mandamus directing the Income tax Officer to discharge his statutory duty of passing the order and issuing the notice of demand in accordance with law, should be issued. [546C E] (ii)The affidavit filed on behalf of the assessee was complete and compiled with the rules made by the High Court. The affidavit spoke only of matters which were within the deponent 's own knowledge, because, the phrase "deponent 's own knowledge" is wide enough to comprehend the knowledge derived from a perusal of relevant documents. Even if the affidavit was defective in any manner, the High Court instead of dismissing the petition in limine should have given the assessee, a reasonable opportunity to file a better affidavit. [547F G, H] (iii)The High Court was also in error in holding that the decision of the Bombay High Court was given on different facts, for the facts in both cases were the same and they arose out of the same transaction. [548B C]

The appellant assessee carried on money lending and other businesses and derived income from various sources such as investment in shares, properties and business. Pursuant to her promise to donate a sum of Rs. 10 lacs for setting up an Engineering College to commemorate the memory of her late husband, she actually made over a sum of Rs. 5.5 lacs by depositing the same in a joint account opened in the name of the District Magistrate, Bulandshahr and Smt. Indermani Jatia for the College. The balance of Rs. 4.5 lacs was left with the assessee and was treated as a debt to the institution and interest thereon at 6% per annum with effect from October 21, 1955 was to be finally deposited in the technical institute account. Though in the books of accounts, on November 21, 1955, a sum of Rs. 10 lacs was debited to her capital account and corresponding credit was given to the account of the institute, the assessee actually paid the sum of Rs. 5.5 lacs to the institution on January 7, 1956 from the overdraft account which she had with the Central Bank of India, Aligarh. In the assessment proceedings for the assessment years 1957 58, 1958 59, 1959 60, the assessee claimed the deduction of these sums Rs. 20,107/ Rs. 25,470/ and Rs. 18,445/ being the respective items of interest paid by her to the bank on Rs. 5.5 lacs during the samvat years. The assessee contended that she had preferred to draw on the overdraft account of the bank for the purpose of paying the institution in order to save her income earning assets, namely, the shares, which she would have otherwise been required to dispose of and therefore, the interest paid by her should be allowed. As regards interest on the remaining sum of Rs. 4.5 lacs (which was left as a loan with the assessee) that was debited to her account, the assessee claimed that it was a permissible deduction. The taxing authorities took the view that the claim for deduction was not admissible either against business income under section 10(2) or against income from investments under section 12(2) of the Income Tax Act, 1922. The appeals preferred to the Appellate Tribunal failed. The references made to the High Court went against the assessee. Dismissing the appeals by special leave, the Court ^ HELD: 1. Under section 10(2)(iii) of Income Tax Act, 1922, three conditions are required to be satisfied in order to enable the assessee to claim a deduction in respect of interest on borrowed capital, namely, (a) that money 746 (capital) must have been borrowed by the assessee, (b) that it must have been borrowed for the purpose of business and (c) that the assessee must paid interest on the said amount and claimed it as a deduction. [755B C] 2. As regards the claim for deduction in respect of expenditure under section 10(2) (xv), the assessee must also satisfy three conditions namely (a) it (the expenditure) must not be an allowance of the nature described in clauses (i) to (xiv); (b) it must not be in the nature of capital expenditure or personal expenses of the assessee and (c) it must have been laid out or expended wholly and exclusively for the purpose of his business. [755C D] 3. The expression "for the purpose of business" occurring in s.10(2)(iii) as also in 10(2)(xv) is wider in scope than the expression "for the purpose of earning income profits or gains" occurring in section 12(2) of the Act and, therefore, the scope for allowing a deduction under section 10(2)(iii) or 10(2)(xv) would be much wider than the one available under section 12(2) of the Act. [755D E] Commissioner of Income Tax vs Malayalam Plantations Ltd., ; ; applied. 4. Neither there had been any confusion of the issue nor any wrong approach had been adopted by the taxing authorities, the Tribunal or the High Court. The case of the assessee had been considered both by the Tribunal as well as by the High Court under s.10(2) (iii) or 10(2) (xv) and not under s.12(2). In fact, in Reference No. 775 of 1970 the questions framed by the Tribunal in terms referred to s.10(2)(iii) and 10(2)(xv) and proceeded to seek the High Court 's opinion as to whether the sums representing interest paid by the assessee to the Central Bank on the overdraft of Rs. 5.5 lacs for the concerned three years were allowable as deduction under either of the said provisions of the Act and the High Court after considering the matter and the authorities on the point had come to the conclusion that such interest was not allowable as a deduction under either of the said provisions. [743D G] 5. It is true that the High Court did refer to the decision of the Bombay High Court in Bhai Bhuriben 's case but that decision was referred to only for the purpose of emphasising one aspect which was propounded by that Court, namely, that the motive with which an assessee could be said to have made the borrowing would be irrelevant. In fact the High Court found that there was no material to show that the assessee, in the instant case, would necessarily have had to employ the business assets for making payment to charity. The High Court actually considered the assessee 's case under section 10(2) (iii) and 10(2) (xv) and disallowed the claim for deduction under these provisions principally on the ground that the said borrowing of Rs. 5.5 lacs was unrelated to the business of the assessee. [745G H, 755A B] Bhai Bhuriben Lallubhai vs Commissioner of Income Tax, North Cutch and Saurashtra, ; explained. (6) In the instant case: (a) The amount of Rs. 5.5 lacs having been actually parted with by the assessee on January 7, 1956, and having been accepted by the institute the same being deposited in the joint account of the assessee and the District 747 Magistrate, Bulandshahr for the Engineering College, the gift to that extent was undoubtedly complete with effect from the said date. [756A C] (b) The said payment made by the assessee by drawing a cheque on the overdraft account was a borrowing which was made to meet her personal obligation and not the obligation of the business and as such expenditure incurred by the assessee by way of payment of interest thereon was not for carrying on the business nor in her capacity as a person carrying on that business. Such expenditure could by no stretch of imagination be regarded as business expenditure. [756C, F] (c) It is true that initially on November 21, 1955 the capital account of the assessee was debited and the college account was credited with the sum of Rs. 10 lacs in the books of the assessee but making of these entries in the assessee 's books would not alter the character of the borrowing nor would the said borrowing be impressed with the character of business expenditure for admittedly, the assessee maintained only one common set of books in which were incorporated entries pertaining to her capital, assets and income from all her difference sources. The borrowing was completely unrelated to the purpose of the business and was actually used for making charity. It is, therefore, clear that the interest that was paid on the sum of Rs. 5.5 lacs to the bank by the assessee for the three concerned years was rightly held to be not deductible either under section 10(2) (iii) or under section 10(2) (xv) of the Act. [756F H, 757A] Commissioner of Income Tax, Bombay City II vs Bombay Samachar Ltd., Bombay, ; Commissioner of Income Tax, Bombay City IV vs Kishinchand, ; distinguished. (d) Both the Tribunal as well as the High Court were right in taking the view that the certificate dated October 17, 1958 was of no avail to the assessee inasmuch as it merely stated that the assessee had promised a donation of Rs. 10 lacs on October 21, 1955, out of which Rs. 5.5 lacs were deposited in the joint account maintained in the name of the assessee and the District Magistrate, Bulandshahr for the college and the remaining sum of Rs. 4.5 lacs was left as a loan with the assessee and interest thereon at 6% per annum was to be finally deposited in the technical institute account. The Tribunal and the High Court were also right in taking two views that beyond making entries in the books of account of the assessee there was no material on record to show that the assessee had actually made over a sum of Rs. 4.5 lacs to the college or that the college had accepted the said donation with the result that the amount credited to the college account in her books represented her own funds and lay entirely within her power of disposition and that being so, the interest credited by the assessee on the said sum of Rs. 4.5 lacs and the accretion thereto continued to belong to the assessee, and, therefore she was not entitled to the deduction in respect of such interests, and [758C G] (e) If no trust in favour of the college in regard to the amount of Rs. 4.5 lacs could be said to have come into existence either on October 21, 1955 or November 21, 1955 or on any other subsequent date during the relevant years, no deduction in respect of interest credited by the assessee to the account of the college over the said sum can be allowed. [759A B] 748

Section 13A was introduced in Rajasthan Premises (Con trol of Rent and Eviction) Act, 1950 by an Ordinance on September 29, 1975, The Ordinance was later replaced by an Act. Clause (a)of the section provides that no Court shall, in any proceeding pending on the date of the commencement of the Amending Ordinance, pass any decree in favour of a landlord for eviction of a tenant on the ground of non payment of rent under certain circumstances. Clause (b) provides that in every such proceeding the Court shall, on the application of the tenant, made within 30 days from the date of the presentation of the memorandum of appeal or application for revision, determine the amount of rent in arrears. Clause (c) provides that the provisions of els. (a) & (b) shall, mutatis mutandis, apply to all appeals, or applications for revision, preferred or made after the commencement of the Amending Ordinance. Explanation (b) to the section defines a proceeding to mean a suit, appeal or application for revision. Section 22(1) provides that from every decree or order passed by the Court under the Act, an appeal shall lie to the Court to which appeals ordinarily lie :from original decrees and orders passed by such former Court. On the ground of non payment of rent, a decree of evic tion was passed against the appellant, who was the respond ent 's tenant. The High Court having affirmed the decree on appeal, the appellant filed an application for special leave to this Court on September 23, 1975. The Ordinance intro ducing section 19A was passed on September 29, 1975. This Court granted special leave on November. In appeal to this Court it was contended by the appel lant (1) that since the application for special leave was pending before this Court on the date of the commencement of the Ordinance, the case was governed by section 13A (a) and (b) of the Act; (2) in the alternative since, as a result of the grant of special leave, an appeal had been pending before this Court, the appellant was entitled to the protection of section 13A(c) of the Act. Dismissing the appeal, HELD: (Per Chandrachud and Goswami, JJ) (1)(a) In order to attract section 13A(a) a suit, appeal or application for revision must be pending on the date of the commencement of the Ordinance. An application for special leave under article 136 of the Constitution cannot be equated with the ordinary remedy of appeal as of right under any provision of law. It is an extraordinary right conferred under the Constitution, within the discretion of the Supreme Court and an application for special leave does not come within the contemplation of appeal pending before the Court under section 13A(a). The collocation of the words "suit, a. appeal or application for revision" used in the explanation to denote "proceeding", shows that the suits and regular appeals therefrom as provided under the ordinary law and applications for revision alone are intended. [329C & B] 325 (b) The expression "presentation of memorandum of appeal" under section 13A (c) chimes with the construction that the legislature clearly intended to include only the hierarchy of appeals under the Code of Civil Procedure. [330D] (c) Under section 13A(c) read with section 13A(b) in a pending appeal, the tenant has to make an application within 30 days "from the date of presentation of the memorandum of appeal". There is no provision in an appeal by special leave for presentation of memorandum of appeal, under r. 11 of O.XVI. of the Supreme Court Rules, on the grant of special leave, the petition for special leave is treated as the petition of appeal. In contrast under O.41 r. 1(1) of the Code of Civil Procedure, every appeal shall be preferred in the form of a memorandum signed by the appellant and pre sented to the Court. [329H] (d) The terminus a quo for the purpose of section 13A(c) is from the date of presentation of the memorandum of appeal. Since no petition of appeal has to be presented in the Supreme Court after the special leave is granted, such a contingency of appeal to this Court by way of special leave is not intended to be covered by section 13A(c). [330C] (2) Section 22 cannot assist the appellant in this case. While section 22(1 ) qualifies the decree or order as being "under this Act" section 13A does not describe "proceeding" to be under the Act. [330E; 332C] The Act provides for the institution of serious in two different forums namely, the lowest Court of competent jurisdiction, which is the Civil Court, and the other before a Magistrate on the executive side. [332F] Appeals or applications for revision under section 13A(c) relate only to decrees in suits for eviction based on the ground of non payment of rent. Such appeals or applications for revision under section 13A(c) are not contemplated under section 22. Decrees or orders passed by the Court under the Act, against which appeals and revisions are provided in section 22, do not take in decrees and orders passed in a suit for eviction. Usual rights of appeal and revision will be available in the latter class of suits. To hold otherwise will be to deny a right of second appeal to a litigant, whether it is landlord or tenant, against a decree in an eviction suit which is clearly not the intention of the legislature. Second appeal is only barred in case of de crees or orders passed under the Act. [332H] (Per section Murtaza Fazal Ali, J.) Proceedings in this Court would not fall within the ambit of cls. (a) and (b) of section 13A. [338F] (a) The Explanation to the section clearly shows that the word "proceeding" refers only to such proceedings as may be pending in any suit, appeal or application for revision under the Act. The use of the words "such proceedings" in section 13A(b) shows that the proceedings contemplated by section 13A are really proceedings referred to in the explanation, which means proceedings in the nature of suits, appeals or appli cations for revision as referred to in section 22. [338E F] (b) Section 13A(c) would not apply to the present case. The benefit conferred by el. (c) would apply only to appeals and applications for revision filed under the Act as provid ed by section 22. The true interpretation of cl. (c) would be that this clause contemplated the same proceedings as con templated by els. (a) and (b), namely, proceedings indicated in the explanation. [338G H] (c) An appeal by special leave is a special remedy provided by article 136 of the Constitution and the legislature must be presumed to be aware of this special remedy. If the intention was to extend the benefit to appeals for special leave, it should have been clearly stated in el. [339B] (d) The Supreme Court Rules make a clear cut distinction between an application filed for the grant of special leave and a petition of appeal, if the leave is granted. The constituents and ingredients of an application for special leave to appeal are quite different from those of a memoran dum of appeal under O.X.LI r. 1(2) of the Code of Civil Procedure. [339D] 326 (e) The provisions of O.XLI, r. 1(2) C.P.C. require that the memorandum of appeal has to set forth under distinct heads, the grounds of objections to the decree appealed from. No such requirement is to be found in the Supreme Court Rules either for an application for special leave to appeal or in the petition of appeal which is required to be filed if certificate by the High Court is granted. The legislature must be. presumed to be aware of the difference between an application for special leave to appeal and a memorandum of appeal. Though r. 11 of O.XVI of the Supreme Court Rules provides that the petition for special leave would be treat ed as a petition of appeal after the special leave is grant ed,it cannot be equated with a memorandum of appeal contem plated by section 13A(c) of the Act. [339G H] (f) The fact that section 13A(c) mentions the words "from the date of the presentation of the memorandum of appeal or application for revision" clearly indicates that the reme dies contemplated by the Act are remedies of appeal and revision as provided for by section 22 of the Act. [339H]

Appeal No. 20 of 1961. Appeal by special leave from the judgment and order dated March 25, 1960, of the Patna High Court in Election Appeal No. 4 of 1959. N. C. Chatterjee, D. P. Singh, M. K. Ramamurthy, R. K. Garg and section C. Agarwal, for the appellant. D. Goburdhan, for respondent No. 1. 1961. April 26. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave against the judgment of the Patna High Court in an election matter. The brief facts necessary for present purposes are these. There was a bye election held on December 21 and 22, 1958, to fill up a vacancy in the Bihar Legislative Assembly from the Dhanbad constituency. Nomination papers for the same were to be filed on or before November 8, 1958. A large number of persons filed their nomination papers on or before that date and among them were the appellant Rangilal Choudhury and the respondent Dahu Sao. In the present appeal we are only concerned with these two. The nomination paper of the respondent was rejected by the returning officer after scrutiny on November 11, 1958. The bye election was duly held and the appellant was declared elected by a majority of votes. Thereafter the respondent filed an election petition challenging the election of the appellant on a large 403 number of grounds. In the present appeal we are only concerned with one of the grounds that the nomination paper of the respondent was improperly rejected. The appellant 's contention in this connection was that the nomination paper was rightly rejected. The election tribunal held that the nomination paper was rightly rejected and thereafter dismissed the petition. The respondent went in appeal to the High Court, and the main point pressed in appeal was that the election tribunal was wrong in holding that the nomination paper of the respondent was rightly rejected. The High Court agreed with the contention of the respondent that his nomination paper was improperly rejected and therefore allowed the appeal and set aside the election of the appellant. The appellant 's application for leave to appeal to this Court having been rejected by the High Court, he applied for and obtained special leave from this Court; and that is how the matter has come up before us. The only ground on which the nomination paper was rejected by the returning officer was that the proposer had nominated the candidate for election from Bihar and not Dhanbad assembly constituency. The nomination was made on a Hindi form printed for the purpose by the Government. Unfortunately, the printed form did not exactly conform to the Hindi printed form in the Rules framed under the Representation of the People Act, No. LXIII of 1951, (hereinafter called the Act). The heading in the specimen printed form in the Rules requires the name of the State in which the election is held, to be filled in the blank space there; but in the printed form supplied to the respondent the name of the State was already printed in the heading and therefore the blank space had to be filled in with the name of the constituency. The candidate therefore filled in the name of the constituency in the blank space in the heading. Thereafter the proposer filled in the next part of the form which has five columns, after the main part which says that the proposer nominates so and so for such and such constituency. In this main part, the name of the candidate and the name of the constituency 404 have to be filled in by the proposer. In the particular form with which we are concerned now the name of the candidate was rightly filled in but the proposer instead of putting down the name of the constituency, namely Dhanbad, put down the name Bihar there. So the proposal read as if the candidate was being nominated for the Bihar Assembly constituency. The only objection taken before the returning officer was that the proposer had not mentioned the constituency for which he was proposing the candidate for election and therefore the nomination 'form was defective and should be rejected. This found favour with the return ing officer, who rejected the nomination paper as already said, on the ground that the proposer had nominated the candidate for election for Bihar assembly constituency and not Dhanbad assembly constituency. It may be mentioned that it is no one 's case that there is any constituency like Bihar assembly constituency. It may also be mentioned that this. was a bye election and not a General Election; and the question whether the nomination paper was rightly rejected will have to be considered in this background. Now section 33(1) of the Act requires that a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer shall be filed on or before the date appointed for the nomination. Section 33(4) lays down 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 roll; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked. Section 36 then prescribes for the scrutiny of nomination papers and sub section (2) (b) thereof lays down that the nomination paper shall be rejected if there has been a failure to comply with any 405 of the provisions of section 33. But sub section (4) lays down that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. The result of these provisions is that the proposer and the candidate are expected to file the nomination papers complete in all respects in accordance with the prescribed form; but even if there is some defect in the nomination paper in regard to either the names or the electoral roll numbers, it is the duty of the returning officer to satisfy himself at the time of the presentation of the nomination paper about them and if necessary to allow them to be corrected, in order to bring them into conformity with the corresponding entries in the electoral roll. Thereafter on scrutiny the returning officer has the power to reject the nomination paper on the ground of failure to comply with any of the provisions of section 33 subject however to this that no nomination paper shall be rejected on the ground of any defect which is not of a substantial character. The main dispute in the High Court centered on the question whether the defect in this case on the ground of which the returning officer rejected the nomination paper was of a substantial character or not. Generally speaking if the nomination paper does not disclose at all the name of the constituency for which the nomination has been made, the defect would be of a substantial character, for there would then be no way of knowing the constituency for which a candidate is being nominated. But there may be cases where the nomination form shows the constituency for which the nomination is being made though there may be some defect in filling up the form. In such a case it seems to us that if the nomination form discloses the constituency for which the nomination is being made even though the form may not have been properly filled in that respect, the defect in filling the form would not be of a substantial character. It is true that in this case there was a defect in filling up the blank by the proposer inasmuch as he wrote the word "Bihar" before the words "assembly constituency" instead of 52 406 the word "Dhanbad", which he should have done; and if there were nothing else in the form to disclose the constituency for which the nomination was being made there would have been a substantial defect in the nomination form which would justify the returning officer in rejecting the same. But the circumstances of the present case are rather peculiar. We have already mentioned that the printed Hindi form which was used in this case printed the heading wrongly inasmuch as the heading was not in accordance with the heading prescribed under the Rules. In the specimen form in the Rules, the blank space is meant for the State in which the election is being held; but because of the mistake in printing the heading in this case, the blank space could only be filled up with the name of the constituency, and that was what was done. This name was filled in apparently by the candidate himself and not by the proposer. But equally clearly the name of the constituency was there when the proposer in his turn came to fill up that part of the form which he had to fill. It seems that the proposer was thus misled, as the name of the constituency was already there in the heading, to write the word "Bihar" in the second blank space in his proposal instead of the word "Dhanbad" to indicate the constituency. That was undoubtedly a defect in the form as filled in by the proposer. The question however is whether in these circumstances it can be called a defect of a substantial character which would justify the rejection of the nomination paper. It seems to us that the defect appeared partly because of the mistake in the printing of the Hindi form which was supplied to the candidates for the purposes of the nomination to this bye election. The form however as put in clearly shows in the heading the particular assembly constituency for which the election was being held. Then follows the part which has to be filled in by the proposer and there the proposer made a mistake in filling the word "Bihar" instead of the word "Dhanbad" in the blank space relating to the constituency. Considering however that the name of the constituency was already there in the heading, it would in our 407 opinion be not improper in the circumstances of this case to say that the proposer was nominating the candidate for the constituency which was already mentioned in the heading. It seems to us therefore that in view of the mistake that occurred in the printing of the form and in view of the fact that the name of the constituency for which the election was being held was already in the heading, the mistake of the proposer in putting in the word "Bihar" instead of the "Dhanbad", which resulted in a defect in the filling up of the form was not of a substantial character and that it was quite clear on the form in this case that the nomination was for the Dhanbad assembly constituency. The returning officer does not seem to have attached any importance to the name of the constituency in the heading in this case and also seems to have ignored the fact that this was a bye election to one constituency, when he came to consider the defect which undoubtedly was there in this respect in the nomination paper. We therefore agree with the High Court that in the peculiar circumstances created by the mistake in printing the Hindi nomination form by the Government, the defect which has occurred in this case is not of a substantial character and it was quite clear that the nomination paper was for the Dhanbad assembly constituency and was in consequence improperly rejected by the returning officer. As we have already said, this was the only ground on which the nomination paper was challenged as defective before the returning officer; but before the election tribunal the appellant also contended that the nomination paper was defective as columns 2 and 5 of the part which has to be filled in by the proposer were not properly filled in and were defective; and it was urged that the defect there was substantial and therefore even if the reason for the rejection of the nomination paper as given by the returning officer was not substantial, these defects were substantial and the rejection should be upheld on the ground of these defects. Column 2 requires the electoral roll number of the proposer and column 5 of the candidate to be 408 filled in there. Further according to the directions given in the form columns 2 and 5 should contain the name of the constituency, the part of the electoral roll and the serial number in that part. The purpose of this provision is that the returning officer should be able readily to check that the proposer and the candidate are voters on the electoral roll. In the present case only the serial number and the house number are mentioned in columns 2 and 5 and not the name of the constituency and the number of the part. Undoubtedly therefore there was a defect in these two columns. Apparently the constituency was the same, viz., Dhanbad, as will appear from the address given in column 4. No part number could be given as the electoral roll in this particular case was not numbered by Parts. The question is whether in these circumstances this defect can be called a defect of a substantial character. In this connection we cannot ignore the provisions of section 33(4) of the Act, which casts a duty on the returning officer to 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 roll and gives him the power to permit the removal of any defect in this connection. The returning officer does not seem to have noted this defect in the form for if he had done so he would have given an opportunity to the proposer to make the corrections. It is true that the failure of the returning officer to give this opportunity for correction does not mean that the defect can be ignored, if it is of a substantial character. But considering the purpose for which the electoral roll numbers are given, it seems that the returning officer found no difficulty in checking that the proposer as well as the candidate was a voter on the electoral rolls. The High Court in this connection referred to the evidence of the respondent who stated that when his nomination paper was taken up for scrutiny, the returning officer compared the names in the nomination paper with those in the electoral rolls. It seems therefore that in this case the returning officer found no difficulty in tracing the names of the proposer and the candidate 409 in the electoral rolls and that is why no objection was raised before him as to the defect in columns 2 and 5. In the circumstances it must be hold that the defect was of an unsubstantial character and would not result in the rejection of the nomination paper. We may in this connection refer to Karnail Singh vs Election Tribunal, Hissar and Other8 (1), where this Court observed that it was quite clear on the evidence that there was no difficulty in identifying the candidate and the candidate himself pointed out to the returning officer his own name in the electoral rolls. Therefore the defect in columns 2 and 5 was in the circumstances held to be a technical one and not of a substantial character. The principle of that case in our opinion applies to the present case also, for there is no doubt here that the returning officer found no difficulty in identifying the proposer as well as the candidate and as a matter of fact the evidence is that the candidate himself pointed out the place in the electoral rolls where his name was entered. We therefore agree with the High Court that in the circumstances of this case the defects in columns 2 and 5 were of an unsubstantial character and the rejection of the nomination paper cannot be upheld on this further ground, which was not even urged before the returning officer. We therefore dismiss the appeal. In these circumstances we pass no order as to costs. Appeal dismissed.

The appellant was elected as a member of the Bihar Legis lative Assembly in a bye election from the Dhanbad constituency by a majority of votes while the nomination paper of the respondent was rejected by the Returning Officer on the ground that the respondent 's proposer had nominated him for election from the Bihar and not Dhanbad assembly constituency inasmuch as in the nomination paper he wrote the word "Bihar" before the words "assembly constituency" instead of the word "Dhanbad". This defect arose out of a mistake in the Hindi printed form of the nomination paper which did not exactly conform to the form prescribed by the Rules. In an election petition by the respondent the Election Tribunal held that his nomination paper was rightly rejected but on appeal the High Court held that it was improperly rejected. On appeal by special leave, Held, that in view of the mistake that occurred in the 402 printing of the form and in view of the fact that the name of the constituency for which the election was being held was already in the heading, the defect in the filling up of the form which resulted from a mistake of the proposer in putting the word "Bihar" instead of the word "Dhanbad" was not of a substantial character as contemplated under s 33 of the Representation of the People Act, 1951. Held, further, that the defect arising out of the fact that columns nos. 2 and 5 were not properly filled was not of a substantial character as the Returning Officer bad no difficulty in checking that the proposer and the candidate were voters on the electoral rolls. Karnail Singh vs Election Tribunal, Hissay, [1954] 10 E.L.R. 189, relied on.

The Code of Criminal Procedure, 1973, provides inter alia, by sub section (3) of section 3.8 that no appeal against an order of acquittal passed by a lower court shall be entertained under sub section (1) or sub s.(2) except with the leave of the High Court. A practice was prevalent in the Madhya Pradesh High Court, requiring the State Government or the Central Government, desirous of preferring an appeal under sub section (1) or sub section (2) of section 378 of the Code, to make an application for leave under sub section (3) thereof, and it was registered as a Miscellaneous Criminal Case and treated as a petition and as such placed before a Single Judge for hearing as per r. 1 (q), Chapter I, Part I, of the Madhya Pradesh High Court Rules. It was only when the Single Judge granted leave to appeal under sub section (3), that the petition for leave was registered as a Criminal Appeal and placed before a Division Bench for admission under sub section (1) of section 384. The State Government of Madhya Pradesh having decided to prefer an appeal under sub section (1) of section 378 filed an application for leave to appeal under sub section (3) setting out therein the grounds of appeal and the Single Judge who heard it refused to grant the leave. The State Government made an application for grant of certificate under Article 134 (1) (c) of the Constitution. The application was heard by a Division Bench. The contention was that there was inherent lack of jurisdiction on the part of the Single Judge to hear and decide an application for leave under sub section (3) of section 378 of the Code, inasmuch as under r. 1 (q) (ii) of the Madhya Pradesh High Court Rules, Chapter I, Part 1, the matter had to be dealt with by a Bench of two Judges. The High Court, following its earlier decision in State of Madhya Pradesh vs Narendrasingh, (1974) MPLJ (N) 102, rejected the contention, holding that the State had to obtain 'leave ' of the High Court under sub section (3) of section 378, before an appeal against acquittal was preferred under sub section (1) thereof and therefore the learned Single Judge had jurisdiction to deal with tho application for leave under sub section 82 In appeal to this Court the State Government contended that the making of an application for leave under sub section (3) of section 378 is tantamount to filing an appeal under sub section (1) thereof, that the High Court could grant leave and entertain the appeal at one and the same time inasmuch as an application under sub section (3) would be transmuted into an appeal under sub section (1) when leave is granted under sub section (3) and, therefore, the application for leave under sub section (3) must have been laid before a Bench of two Judges under r. 1 (q) (ii) of the High Court Rules. Allowing the appeal, ^ HELD: 1. An application for 'leave ' to appeal under sub section (3) of section 378 without which no appeal under sub section (I) or sub section (2) thereof can be entertained, being an integral part of the appeal, must be laid before a Bench of two Judges of the High Court under r. 1 (q) (ii), Chapter I, Part I of the Madhya Pradesh High Court Rules (as it stood before the amendment) and could not be heard and disposed of by a Single Judge of the High Court under r. 1 (q) of the Rules, as it stood prior to its amendment. [92 E F; 83 D] 2. Sub section (3) of section 378 was introduced by Parliament to create a statutory restriction against entertainment of an appeal filed by the State Government or the Central Government under sub section (1) or sub section (2) thereof from an order of acquittal passed in a case instituted otherwise than upon a complaint. T here is a difference in the procedure regulating entertainment of State appeals under sub section (1) or sub section (2) of section 378 and appeals against acquittals filed by a complainant under sub section (4) of section 378. On a comparison of the language employed in sub section (3) and sub section (4) of section 378, it is clear that in the case of an appeal by the State Government or the Central Government under sub section (1) or sub section (2), the Code does not contemplate the making of. an application for leave under sub section (3) while making of an application under sub section (4) is a condition precedent for the grant of special leave to a complainant under sub section The difference in language used in sub section (3) and sub section (4) of section 378 manifests the legislative intent to preserve a distinction between the two classes of appeals by prescribing two different procedures in the matter of entertainment of appeals against acquittals. While a period Of limitation has been prescribed in sub section (5) of section 378 for an application of the complainant under sub section (4), there is no period of limitation prescribed for an application for grant of Leave to appeal under sub section (3), obviously because the Code does not contemplate the making of an application for leave under sub section (3) of section 378. It, therefore, follows that the State Government or the Central Government may, while preferring an appeal under sub section (1) or sub section (2) of section 378 incorporate a prayer in the memorandum of appeal for grant of leave under sub section (3) thereof, or make a separate application for grant of leave under sub section (3) of section 378, but the making of such an application is not a condition precedent for a State appeal. [90 F H; 91 A C; 88 G H; 91 C D] State of Madhya Pradesh vs Narendra Singh, [1974] MPLJ (N) 102 over ruled. State of Rajasthan vs Ramdeen & ors. [1977] 3 S.C.R. 139 relied on. 83

The respondent was appointed on 15.7.1962 as a Chemistry lecturer in Kulohaskar Ashram Agriculture Intermediate College run by the appellant society. By a communication dated 20.6.1963, he was informed by the management that his services were no longer required after 15.7.1963. He filed a civil suit for permanent injunction restraining the manage ment from proceeding with the proposed action. But the management having withdrawn the letter, he withdrew the suit as having become infructuous. However on 28.8.1964, the respondent was placed under suspension whereupon he again filed a civil suit for a declaration that the order of suspension was illegal. The trial court dismissed the suit but the first appellate court allowed the appeal and decreed the suit as prayed for. On appeal the High Court affirmed that decision, on 9.4.69. During the pendency of the appeal before the High Court, the management appellant had passed a fresh order suspending the respondent pending enquiry on certain allegations. The respondent again filed a civil suit to challenge the competency of the managing committee to take action against him. In the said suit he also pleaded that the prior approval of the District Inspector of Schools having not been taken, the order placing him under suspen sion was bad. The Munsiff Court accepted the suit and de clared the suspension order as illegal and void. The first appellate court reversed that order and the respondent preferred second appeal to the High Court. During the pendency of the respondent 's second appeal, U.P. Secondary Educational Laws (Amendment) Act, 1976 came into force from 18.8.76 which inter alia provided that prior approval of the District Inspector of School was necessary before any action could be taken against teaching staff of a college. The respondent sought to amend the pleadings of second appeal in consonance with the Act but 451 the High Court declined but he succeeded on this question before this Court. Contemporaneously with the litigation set out above, the respondent filed a suit for recovery of arrears of salary, past pendente lite and future. It was claimed for the period between 21.2.1964 and 20.2.1967. The trial court decreed the suit for Rs.7812/92 p. being the arrears of salary for the period of three years. The management appealed to the Dis trict Court and the respondent filed cross objection. As stated earlier, the second appeal preferred by the respond ent was pending in the High Court. Hence the parties moved the High Court for withdrawing the appeal pending before the District Court for being disposed of alongwith the second appeal No. 2038/1970, which request was accepted and the said appeal came to be registered as First Appeal No. 460 of 1982. The High Court disposed of both the appeals by a common judgment whereby the second appeal was dismissed and the finding as to the validity of the suspension order was confirmed. However the First Appeal was allowed and the decree of the trial court was reversed and a suit for ar rears of salary filed by the respondent was dismissed. The respondent appealed to this Court and his appeal was allowed and his claim to salary between 20.2.1964 to 15.1.1966 was settled at Rs. 10,000 and the court further held that the order of suspension ceased to be operative w.e.f. 17.10.1975. Thereafter the respondent on May 18, 1986 moved the High Court under Article 227 of the Constitution for a writ of Mandamus against the State of U.P. and the management of the College for his reinstatement in service and for payment of entire arrears of salary. The High Court accepted the writ petition and granted him the relief asked for. Hence these appeals by the Management of the school and the State of U.P. Allowing the appeals, this Court, HELD: Indeed, the reinstatement would be an unwise move from any point of view. In educational institutions, the Court cannot focus only on the individual. The Court must have regard to varying circumstances in the academic atmos phere and radically changed position of the individual sought to be reinstated. The court must have regard to interests of students as well as the institution. [459E] In the instant case, during the gap of twenty five years, the respondent must have clearly lost touch with Chemistry as well as the 452 art of teaching. It must have been also deeply buried and disintegrated under the new acquisition of his legal knowl edge. Reinstatement of such a person seems to be unjustified and uncalled for. [459G] Legal profession may not be considered as an employment but the income from profession or avocation if not negligi ble, cannot be ignored while determining damages or back wages for payment. [463G] In a case like this. the Government cannot be saddled with the liability to make payment. There is no relationship of master and servant between Government and respondent and such relationship existed only between the management and respondent. So far as statutory liability to pay salary to teacher is concerned, the Government has been paying salary to Dr. Gopendra Kumar who has since been appointed as Lec turer in the place of the respondent. Therefore, the manage ment alone should pay the amount ordered. [464D E] Vaish Degree College vs Lakshmi Narain, ; G.R. Tiwari vs District Board, Agra and Anr., ; , 59; The Executive Committee of U.P. Warehousing Corpo ration Ltd. vs Chandra Kiran Tyagi, ; , 265; Bank of Baroda vs Jewan Lal Mehrotra, and Sirsi Municipality vs Kom Francis, ; ; Smt. J. Tiwari vs Smt. Jawala Devi Vidya Mandir & Ors., ; ; Deepak Kumar Biswas vs The Director of Public Instruc tions, ; Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvaran Jayanti Mahotsav Samarak Trust & Ors. V.R. Rudani & Ors., ; at 697; TrilokChand Modichand & Ors. vs H.B. Munshi & Anr., ; Maimoona Khatun & Anr. vs State of U. P. & Anr. , ; ; Managing Director U.P. Warehousing Corporation & Anr. vs Vinay Narain Vajpayee, ; ; Maharaja Sayajirao University of Baroda & Ors. vs R.S. Thakur, AIR 1968 SC 2112 and S.M. Saiyad vs Baroda Municipal Corpora tion, [1984] Supp. SCC 378, referred to.

Election for the office of Pramukh of a block was held under the provision of the Uttar Pradesh Kshettra Samitis and Zilla Parishads Adhinayam, 1961. On one of the ballot papers, the second respondent had a third preference recorded in his favour and a second preference in favour of another candidate who was eliminated at one stage. The Returning Officer did not count the third preference in favour of the second respondent and found at the final counting that the appellant and the second respondent had secured an equal number of votes. He therefore drew a lot as per the Instructions in Schedule II and declared the second respondent duly elected. The appellant then filed an election petition on various grounds before the District Judge who dismissed it, holding that the Returning Officer erred in not crediting the second respondent with the third preference and that if that was done there was no necessity for drawing lots at all and that the second respondent should have been declared elected as a result of the counting itself. The appellant 's writ petition challenging the District Judge 's order was dismissed. In appeal to this Court he contended that: (1) under rr. 37 and 39 the trial of an election petition takes place in two parts; first, to judge whether the returned candidate 's election is void and then to decide whether any other candidate should be declared to be duly elected, that it was only in the latter case the returned candidate had the right to claim that ballot papers not already counted in his favour should be so counted, and that therefore, the District Judge had no jurisdiction to count the ballot paper containing the third preference in favour of the second respondent; and (2) the ballot paper was an 'exhausted paper ' within Instruction 1(5) of Schedule II to the Rules, and that therefore the District Judge erred in law in counting it in favour of the second respondent. Held: (1) The District Judge was entitled, to go into the question whether the uncounted ' ballot paper should have been counted in favour of the second respondent. [249G] According to r. 37(a) read with r, 40 which generally applies the procedure in the Civil Procedure Code to the trial of election petitions under the Act, and r. 43 which deals with the findings of the trial Judge, the returned candidate can take any defence to show that he has been validly elected. He could therefore allege and prove that certain votes should have been counted in his favour. [249E G] Jabar Singh vs Genda Lal, ; , explained.243 244 (2) The fact that the Candidate with the second preference in the uncounted ballot Paper *as eliminated at one stage, did not make the ballot paper an 'exhausted paper ' within the definition in the Rules. The second respondent was a continuing candidate, as per the Rules, and,there was a preference recorded for him on the ballot paper arid the District fudge was right in holding that it should have been counted in his favour, by the Returning Officer. [250A C]

At the relevant time the appellant was in the service of the State of Bihar as officiating Inspector of police. After a departmental inquiry against him the report of the enquiry officer was submitted to the Inspector General of Police with the recommendation that the appellant should be given exemplary punishment. Under section 7 of the the Inspector General had power to impose in suitable cases penalty of dismissal, suspension and reduction. The Inspector General exonerated the appellant, from the charges laid against him but on the basis of certain adverse remarks in the confidential character roll of the appellant he passed an order reverting the appellant to the substantive rank of sub inspector of police for a period of one year. These adverse remarks had never been notified to the appellant nor was,any opportunity to explain them ever offered to him before the order of reversion was passed. In appeal the State Government set aside the order of reversion passed by the Inspector General on the ground that no opportunity had been given to the appellant to explain the adverse remarks, but the Government instead passed an order of dismissal disagreeing with the findings of the Inspector General and agreeing with the findings given by the enquiry officer by whom the appellant had been found guilty. On further appeal to the Governor having been dismissed by the Government the appellant filed a writ petition in the High Court. The High Court allowed the writ petition but directed that the appellant 's appeal should go back to the government for disposal according to law. The Government thereupon served notices on the appellant to show cause why he should not be dismissed from service. The notice was issued oh the strength of rr. 851(b) and 853 of the Bihar and Orissa Police Manual, 1930. The appellant thereupon gave his reply. About a year after the High Court 's order quashing the Government 's order of dismissal, the Government issued an order reinstating the appellant but at the same time suspending him from service. This was followed by an order dismissing the appellant from service. The appellant once more filed a petition in the High Court which was dismissed in liming. By special leave the present appeal, was filed. The question for consideration was, whether it was competent for the Government, in an appeal filed by the appellant against the order of reversion passed by the Inspect(* General of Police to set aside the findings of that officer by which he exonerated the appellant from charges against him, which findings were not appealed against by the department, and then pass an order of dismissal accepting the findings of the enquiry officer. HELD:(1) The Act itself confers on the Inspector General power to impose in suitable cases the penalty of dismissal, suspension and reduc L1100Sup. Cl/71 864 tion,subject to the provisions of article 311 and the rules made under the Act. The power of superintendence conferred, on the State Government by s.3 must, therefore, be read in the light of the provisions of section 7 under which the legislature has conferred specified powers to the officers mentioned therein. Further, an appeal before the Government having been provided for under r. 851 (b), presumably both by the delinquent police officer, as also the department, if aggrieved by an order passed by the Inspector General, there would also be no question of the Government exercising its general power of superintendence under section 3 of the Act. The exercise of such a power is ordinarily possible when there is no provision for an appeal unless there are other provisions providing for it. [867 D 869 A] (ii)Under r. 851(b) the only question before the Government was whether the order of revision should be sustained or not. There was no other matter by way of an appeal before the Government by the department or by anyone else being aggrieved against the order of the Inspector General by which he held that the charges against the appellant had not been established. That being so, the Government could pass in exercise of its appellate power, under r. 851 (b) such an order as it ' thought fit in the appeal filed by the appellant i.e., either upholding the order of reversion or setting it aside. In the absence of any other appeal, the Government could not sit in judgment over the findings of the Inspector General given by him under the power conferred on him by section 7 of the Act [868 E G] (iii)The order of the Govertunent could not also be defended under r. 853. Assuming that under r. 853 the Government could suo moto revise the order of the Inspector General, on appeal having been filed before it, it could not so act. The fact that the power of revision is conferred on the authority possessed of appellate power indicates that the power of revision is intended to be used when an appeal could not for some reason be filed and the appeuate authority felt that the order was so unjust or unreasonable that it should act under its revisional power. That wae not the case of the Government in the present case. [869 D E] [whether the order of the Government could be defended under r. 853A could not be considered because the existence of the rule was not proved.]

The appellant was an Overseer in the Public Works Department of the Central Provinces and Berar Government. In 1947 he was suspended from service and prosecuted under section 161 I.P.C. Ultimately, on orders from the High Court, the prosecution was dropped. In a departmental enquiry also the appellant was exonerated, By an order dated December 1960, the Government held that the suspension of the appellant and the ' departmental enquiry against him "were not wholly unjustified". The order then directed that the appellant should be reinstated in service with effect from the date of the order and retired from the date, he, having already attained superannuation age on September 5, 1952 and that the entire period of absence from duty should be treated as period spent on duty under F.R. 54(5) for purposes of pension only, but that he should not be allowed any pay beyond what he had actually received or what was allowed to him, by way of subsistence allowance during the period of his suspension. The appellant filed a petition under article 226 of the Constitution contending that F. Rule 54(2) governed his case and not F. Rule 54(5). The High Court decided against him but granted him certificate to appeal to this Court. It was contended on behalf of the appellant that before deciding which rule applied to his case the Government should have given him an opportunity to be heard. The respondent urged that in passing a consequential order a hearing is not necessary. Held: An order passed under F R. 54 is not always a consequential order nor is such order necessarily a continuation of the departmental proceeding taken against the employee. [359E F] Consideration under F.R. 54 depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the Government servant must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action proposed is not afforded, as admittedly it was not done in the pre sent case, the order is liable to be struck down as invalid on the ground that it was one in breach of the principles of natural justice. State of Orissa vs Dr. (Miss) Binapani Devi and Ors. ; , relied on. [359H; 360A B] V. R. Gokhale vs State of Maharashtra, I.L.R. [1963] Bom. 537, approved.

% This Criminal Appeal against the judgment and order of the Gujarat High Court and the connected Special Leave Petitions against the orders of the various Designated Courts in the State constituted under the Terrorist & Disruptive Activities (Prevention) Act, 1987, raised common questions for consideration. It was enough to set out the facts in the appeal. There was an armed clash involving the appellants, as a result whereof the police apprehended the appellants and produced them before the Designated Court. The appellants moved an application for bail which was rejected by the Designated Court. The appellants moved the High Court under section 439 read with section 482 of the Code. The High Court rejected the bail application on the ground that it had no jurisdiction to entertain such an application under section 439 of the Code or by recourse to its inherent powers under section 482. Aggrieved by the decision of the High Court, the appellants appealed to this Court for relief by special leave. On the view the Court took as to the nature of the function of the Designated Courts in dealing with the bail applications within the constraints of section 20(8), it was not necessary to deal with the facts of the connected special leave petitions directed against the orders of the different Designated Courts, rejecting the bail applications. Allowing, the appeal and the special leave petitions partly, the Court, ^ HELD: These cases mainly raised two questions of substantial 226 importance. The first was as to the jurisdiction and powers of the High Court to grant bail under section 439 of the Code of Criminal Procedure, 1973 or by recourse to its inherent powers under section 482 to a person held in custody for an offence under sections 3 and 4 of the Terrorist & Disruptive Activities (Prevention) Act, 1987, and secondly, as to the nature of the restraint placed on the power of the Designated Courts to grant bail to such a person in view of the limitations placed on such power under section 20(8) of the Act. [246G H] The Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under section 439 of the Code or by recourse to its inherent powers under section 482. Under the scheme of the Act, there is complete exclusion of the jurisdiction of the High Court in any case involving the arrest of any person for an offence punishable under the Act or any rule made thereunder. There is contrariety between the provisions of the Act and the Code. Under the Code, the High Court is invested with the various functions and duties in relation to any judgment or order passed by a criminal court subordinate to it. The Act creates a new class of offences called terrorist acts and disruptive activities and provides for a special procedure for the trial of such offences. The jurisdiction and power of a Designated Court are derived from the Act and it is the Act that must primarily be looked to in deciding the question before the Court. Where an enactment provides for a special procedure for the trial of certain offences, it is that procedure that must be followed and not the one prescribed by the Code. [239B C; 240A,D] No doubt, the legislature has, by the use of the words 'as if it were ' in section 14(3) of the Act, vested a Designated Court with the status of a Court of Session, but the legal fiction contained therein must be restricted to the procedure to be followed for the trial of an offence under the Act i.e. such trial must be in accordance with the procedure prescribed under the Code for the trial before a Court of Session, in so far as applicable. [240D F] Though there is no express provision excluding the applicability of section 439 of the Code similar to the one contained in section 20(7) of the Act in relation to a case involving the arrest of any person for an offence punishable under the Act or any rule thereunder, yet that result must, by necessary implication, follow. The source of power of a Designated Court to grant bail is not section 20(8) of the Act, as it only places limitations on such power, but it does not necessarily follow that the power of a Designated Court to grant bail is relatable to section 439 of the Code. The 227 Designated Court is a 'court other than the High Court or the Court of Session ' within the meaning of section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations placed by section 20(9) which in terms provides that the limitations on grant of bail specified in section 20(8) are in addition to the limitations under the Code or any other law for the time being in force on the grant of bail. It, therefore, follows that the power derived by a Designated Court to grant bail to a person for an offence under the Act is derived from the Code and not section 20(8) of the Act. The controversy as to the power of the High Court to grant bail under section 439 of the Code must also turn on the construction of section 20(8) of the Act. [241B E] In view of the explicit bar in section 19(2), there is exclusion of the jurisdiction of the High Court. It interdicts that no appeal or revision shall lie to any court, including the High Court, against any judgment, sentence or order, not being an inter locutory order, of a Designated Court. While it is true that Chapter XXXIII of the Code is still preserved, as otherwise the Designated Court would have no power to grant bail, still the source of power is not section 439 of the Code but section 437, being a court other than the High Court or the Court of Session. Any other view would lead to an anomalous situation. If it were to be held that the power of a Designated Court to grant bail was relatable to section 439, it would imply that not only the High Court but also the Court of Session would be entitled to grant bail. The power to grant bail under section 439 is unfettered by any conditions and limitations like section 437. It would run counter to the express prohibition contained in section 20(8) of the Act. The Court upheld the view of the High Court that it had no jurisdiction to entertain an application for bail under section 439 or under section 482 of the Code. [243G H; 244A B,D] As regards the approach which a Designated Court has to adopt while granting bail in view of the limitations placed on such power under section 20(8), the sub section in terms places fetters on the power of a Designated Court on the grant of bail and limitations specified therein are in addition to the limitations under the Code. In view of these more stringent conditions, a Designated Court should carefully examine every case before it for finding out whether the provisions of the Act apply or not. A prayer for bail ought not to be rejected in a mechanical manner. [244E G] The Designated Courts had not in these cases carefully considered the facts and circumstances and had rejected the bail applications mechanically. In the criminal appeal, the facts were already set out. In 228 the special leave petitions Nos. 2369 and 2469 of 1967, the prosecution had been started at the instance of the management of a textile mill. The other cases had arisen out of communal riots. Normally, such cases have to be dealt with under the ordinary procedure prescribed by the Code, unless offences under sections 3 and 4 of the Act are made out. The Designated Courts are under a duty to examine the circumstances closely from this angle. That had not been done. It was, therefore desirable to set aside the orders passed by the various Designated Courts and remit the cases for fresh consideration. [246D F] The appeal and the special leave petitions partly succeeded. While upholding the judgment and order of the High Court, dismissing the applications for bail under section 439 of the Code of Criminal Procedure, 1973, the Court granted leave and set aside the impugned orders passed by the various Designated Courts in the State, dismissing the applications for bail, and directed them to consider each particular case on merits as to whether it fell within the purview of section 3 and/or section 4 of the Act, and if so, whether the accused in the facts and circumstances of the case were entitled to bail while keeping in view the limitations on their powers under section 20(8) of the Act. Where the Designated Courts find that the acts alleged in the police report or complaint of facts under section 14(1) do not fall within the purview of section 3 and/or section 4 of the Act, they shall in exercise of the powers under section 10 of the Act transfer the cases for trial to the ordinary criminal courts. The accused persons, enlarged on bail by this Court, should continue to remain on bail until their applications for bail were dealt with by the Designated Courts with advertence to the observations made above. [246F H; 247A B] In Re the Special Courts Bill, 1978, [1979] 2 S.C.R. 476; Balchand Jain vs State of Madhya Pradesh, ; ; Ishwar Chand vs State of Himachal Pradesh, I.L.R. (1975) H.P. 569 and V.C. Shukla vs State through C.B.I., , referred to.

An industrial dispute was referred by the Government of Uttar Pradesh for adjudication to the Adjudicator, Kanpur. ,Me Adjudicator held that the Malis were workmen under the U.p. but they were not Industrial employees and hence were not entitled to claim dear food allowance under the Government order dated December 6, 1948. The claims of the Malis with regard to weekly holidays and leave with wages were also rejected by the Adjudicator. 725 Two crow appeals were filed against the order of the Adjudicator before the Labour Appellate Tribunal. The appeal of the appellant was dismissed. As regards the appeal of respondents, the Tribunal gave the Malis benefit of dear food allowance. Their claim for leave with wages was also allowed on the ground of social justice. However, their claim for weekly holiday was rejected. The appellant filed a writ petition in the Allahabad High Court but that was dismissed as in fructuous. The appellant came to this court by special leave. The contentions raised by the appellant in this court were that the Malis were not workers within the meaning of section 2 of the U.P. , that Malis were not industrial employees within the meaning of Government order dated December 6, 1948, and hence were not entitled to dear food allowance and that the Labour Appellate Tribunal should not have granted the demand of the respondents for leave on ground of fair play and social justice. Held that the Malis were workers within the meaning of section 2, of the U.P. They were employed by the appellant, were paid by it and were, subject, to its control and supervision and *discharged the function of looking after the properties of the appellant. Their conditions, of service were also determined by the appellant and the continuance of their service also depended upon the pleasure of the appellant. The bungalows and gardens on which they worked were a kind of amenity supplied by the appellant to its officers. Hence, the Malis were engaged in operations which were incidentally connected with the main industry carried on by the employers The case of the Malis was similar to that of the bus drivers. The relation of the work carried on by the Malis with the industry was not remote, indirect or far fetched. The employee who is engaged in any work or operation which is incidentally,connected with the main industry of the employer is a workman, provided the other requirements of section 2 (s) of the industrial Disputes Act are satisfied. Held also, that the Malis were industrial employees within the meaning of the Government order dated December 6, 1948, and hence were entitled to claim the benefit of dear food allowance. The Tribunal was in error in limiting the scope of the expression, " Industrial , employees" by reference to the definition of the word "worker" as given in the Factories Act, 726 Held also, that the Tribunal was justified in granting the demand of the respondents for leave on grounds of fair play and social justice. The concept of social justice has now become such an integral part of industrial law that it is idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, one sided or pedantic and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal of socioeconomic equality and its aim is to assist the removal of socioeconomic disparities and inequalities. In dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach. It endeavors to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capita i labour and relationship. Shri Bhikari, Kanpur vs Messrs. Cooper Allen & Co., Kanpur, ; The Upper India Chini Mills Mazdoor Union vs The Upper India Sugar Mills ; The Suti Mill Mazdoor Sabha, Kanpur vs Messrs. The British India Corporation Ltd., Kanpur, ; J.K. Iron& Steel Co. Lid, Kanpur vs The Iron and Steel Masdoor Union, Kanpur, ; Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur, ; ; Messrs. Crown Aluminium Works vs Their Workmen, ; and The State of Mysore vs The Workers of Gold Mines, [1959] S.C.R. 895, referred to.

Appeal No. 356 of 1959. Appeal by special leave from the judgment and order dated the November 18, 1957, of the Punjab 18 High Court at Chandigarh in Civil Miscellaneous Application No. 712 of 1956. B. D. Sharma, for appellant. Hardev Singh and A. G. Ratnaparkhi, for respondent No. 1. Y. Kumar, for respondent No. 2. 1961. April 17. The Judgment of the Court was delivered by SHAH, J. The Singer Sewing Machine Company hereinafter referred to as the company was, since the year 1934, the tenant for business purposes of a shop situate at Gurgaon in the State of Punjab and belonging to Pandit Kishan Lal hereinafter called the appellant. One Ganpat Ram Khosla hereinafter referred to as Khosla was the Sales Manager of the company. The Legislature of the State of East Punjab enacted Act III of 1949 called the East Punjab Urban Rent Restriction Act, 1949, to restrict the increase of rent of certain premises situated within the limits of urban areas and the eviction of tenants therefrom. The Act granted protection to tenants of premises used for residential and non residential purposes. By section 2, el. (1), the expression "tenant" was defined, in so far as the definition is material, as meaning any person by whom or on whose account rent was payable for a building or rented land and included a tenant continuing in possession after the termination of the tenancy in his favour, but did not include a person placed in occupation of a building or rented land by its tenant, unless with the consent of the landlord. By section 13, the right of the landlord to evict a tenant even in execution of a decree was restricted and the landlord could seek to evict his tenant by an application to the Controller in certain specified circumstances set out in that section. On August 30, 1954, the company addressed a letter to the appellant intimating that it desired to close down its office in Gurgaon with effect from September 1, 1954. The relevant part of the letter ran as follows: 19 "Now the Company has closed its agency busi ness at Gurgaon and Mr. Khosla will be carrying on Sewing Machine business in Gurgaon in your shop in his personal capacity and not as a Manager of Singer Company. In order that there may not be any misunderstanding about the payment of rent in future, you are informed that from September, 1954 onwards Mr. Khosla will be personally responsible for the payment of rent of your shop. " The appellant informed the company that unless vacant possession was delivered to him tenancy could not be validly determined, and that the company will be held responsible till such delivery for liability to pay rent and that in the event of possession being transferred to any other person, legal action will be taken against the company. But the company delivered possession of the shop to Khosla and allowed him to occupy the shop in his personal capacity from September 1, 1954. Thereafter, on October 31, 1954, the appellant applied under section 13 of the Act to the Controller for an order against Khosla and the company on three grounds, (1) that the company did not require the premises any longer while the appellant required the same for his own use, (2) that the company had neglected to pay rent since September 1, 1954, and (3) that the company had assigned or sublet the shop to Khosla without the written consent of the appellant. Khosla and the company resisted the application contending that Khosla was the tenant of the appellant and that in any event, on August 28, 1954, the company through its local Supervisor had delivered possession of the shop to the appellant and that the latter agreed to treat Khosla as his tenant with effect from September 1, 1954. The Controller rejected the pleas raised by Khosla and the company and ordered that possession be delivered by the com pany to the appellant. In appeal to the District Court at Rohtak, the order passed by the Controller was confirmed. In a petition under article 227 of the Constitution filed by Khosla in the High Court of Judicature for. Punjab at Chandigarh, the order passed by the District Court was quashed. The High Court was of the view that after August 31, 1954, the 20 company had no interest left in the tenancy and the tenancy being from month to month terminable at the will of the appellant, such tenancy could not be the subject matter of transfer or of sub letting. The High Court therefore held that the order passed was without jurisdiction. In the course of the judgment, the High Court observed that full rent had been paid even after September 1, 1954, and therefore the ground of non payment of rent "was not open to" the appellant. It is accepted at the bar that in making this observation, the High Court was under a mis apprehension. The rent accruing due was not paid to the appellant, but was deposited in court. Against the order passed by the High Court, this appeal is preferred with special leave. The Controller and the District Court found that the tenant of the shop in dispute was not Khosla but the company. These two tribunals also found that possession of the shop was handed over by the company to Khosla without the consent of the appellant. These findings were binding upon the High Court. The only question which fell to be determined by the High Court was whether by unilateral action on its part, the company could require the appellant to treat Khosla as his tenant. In our view, the High Court misconceived the nature of the tenancy. A tenancy except where it is at will, may be terminated only on the expiry of the period of notice of a specified duration under the contract, custom or statute governing the premises in question. A tenant does not absolve himself from the obligations of his tenancy by intimating that as from a particular date be will cease to be in occupation under the landlord and that some one else whom the landlord is not willing to accept will be the tenant. It is one of the obligations of a contract of tenancy that the tenant will, on determination of the tenancy, put the landlord in possession of the property demised (see section 108(q) of the Transfer of Property Act). Unless possession is delivered to the landlord before the expiry of the period of the requisite notice, the tenant continues to hold the premises during the period as tenant. Therefore, by merely assigning the rights, the tenancy of the 21 company did not come to an end. It was observed by this court in W. H. King vs Republic of India (1): "There is a clear distinction between an assignment of a tenancy on the one hand and a relinquishment or surrender on the other. In the case of an assignment, the assignor continues to be liable to the landlord for the performance of his obligations under the tenancy and this liability is contractual, while the assignee becomes liable by reason of privily of estate. The consent of the landlord to an assignment is not necessary, in the absence of a contract or local usage to the contrary. But in the case of relinquishment it cannot be a unilateral transaction; it can only be in favour of the lessor by mutual agreement between them. Relinquishment of possession must be to the lessor or one who holds his interest: and surrender or relinquishment terminates the lessee 's rights and lets in the lessor. " In the present case, the company did not surrender its rights to the appellant; it sought to transfer its rights to Khosla. The company admittedly did not serve the notice as required by law, nor did the appellant agree to accept the unilateral determination of the tenancy by the company. The true position was therefore that the company did not immediately on the service of the notice cease to be a tenant; and Khosla, because he was let into possession became an assignee of the rights of the company as a tenant, and he could not be regarded as a trespasser. The High Court was therefore in our view in error in holding that the proceedings were not maintainable in the court of the Controller for possession. Khosla being an assignee of the tenancy rights of the company was as much liable to be sued in the court of the Controller as the company for an order in ejectment. We therefore allow the appeal, set aside the order passed by the High Court and restore the order passed by the District Court, Rohtak. The appellant will be entitled to his costs in this court as well as in the High Court from Khosla. Appeal allowed.

The Singer Sewing Machine Company, respondent 2 in the appeal, was the tenant in respect of a shop under the appellant and informed him that the company had closed its premises, that respondent I will conduct his business in the shop, and that he will be personally responsible for payment of rent, and in spite of the appellant 's protest and without his consent delivered possession of the said shop room to respondent 1. Thereupon the appellant applied to the Controller under section 13 of the East Punjab Urban Rent Restriction Act, 1949, for eviction of the respondents and the Controller directed the company to deliver possession to the appellant. The District Court confirmed the Controller 's order but the High Court set aside the order, in a petition under article 227 of the Constitution, as having been made without jurisdiction, holding that the company had no interest in the tenancy after August 31, 1954, and nothing had passed to the respondent 1. Held, that the High Court was in error on both the points and its order must be set aside. One of the obligations of a tenant under section 108(q) of Transfer of Property Act, on the determination of the tenancy, is to put the landlord in possession. If the tenant fails to do so before the expiry of the period of notice, his tenancy continues and cannot be terminated by an assignment in favour of another. W. H. King vs Republic of India, , referred C.to. In the instant case, the company had not admittedly served the notice as required by law and, therefore, did not cease to be the tenant and since the respondent I was let into possession as assignee he was not a trespasser and, consequently, the proceeding before the Controller was maintainable against both.

A landlord can make an application for recovery of possession under . Clause (e) of the proviso to section 14(1) of the Delhi Rent Control Act, 1958, on the ground that the premises let for residential purposes are required by him bona fide for occupation as a residence for himself or for any member of his family dependent upon him, provided he has no other reasonably suitable residential accommodation. Sub section (S) of section 25B lays down that the Controller shall give to the tenant leave to contest the application, if the affidavit filed by the tenant "discloses such facts as would disentitle the landlord From obtaining on order for recovery possession" of the premises on the ground specified in Cl. (e) of the proviso to section 14(1). The respondent, a Hindu Undivided Family (HUF), filed a petition under Cl. (e) of proviso to section 14(1) through the constituted attorney of its karta for an order for recovery of possession of the premises in question alleging that the premises had initially been given to the appellant on leave and licence, that the landlord (the karta of the HUF) who had gone out of the country had since settled down in Delhi, that the landlord had called upon the appellant in May, 1974 to vacate the premises as he had no other suitable accommodation and that 499 the landlord bonafide required the same for his personal occupation. The appellant sought leave to contest the petition and filed an affidavit denying the allegation that it had entered the premises initially as a licensee and contending that according to cl. 6 of the lease agreement the premises were let for residential as well as commercial purpose, that the landlord had been residing in a house as spacious as the demised premises and equally spacious accommodation in an identical unit located at the back side of the demised premises was available to, him which had been let successively to three tenants during the period 1970 to 1976, each time raising the rent, and further that the landlord owned spacious accommodation at another place in Delhi. An affidavit in reply was filed on behalf of the landlord stating that the landlord had no interest in the building in which he was residing, that the identical unit located on the back side of the demised premises had been let to a tenant upto 1981 and that the accommodation located at another place in Delhi and referred to by the appellant was only a garage block. The Controller decided all questions of fact taking the affidavits as unquestioned evidence and refused to grant leave to the appellant to contest the petition and passed an order of eviction in favour of the landlord. The revision petition filed by the appellant against the order was rejected by the High Court. The question before the court was: What is the jurisdiction of the Controller under Sub section (S) of s.25B while dealing with an affidavit of the tenant seeking leave to contest an application for eviction filed by a landlord under cl. (e) of he proviso to section 14(1) ? Allowing the appeal. ^ HELD: (By the Full Court) Leave to contest the petition for eviction under cl. (e) of proviso to s.l4(1) must be granted to the appellant under sub s (S) of sub section 25B of the Delhi Rent Control Act, 1958. (per Desai and Baharul Islam JJ ) 1. (a) While examining the question whether leave to defend ought or ought not to be granted, the limited jurisdiction which the Controller enjoys is prescribed within well defined limits. The language of sub section (5) of section 25B casts a statutory v duty on the Controller to give to the tenant leave to contest the application, the only pre condition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground mentioned in B. 14(1)(e). The legislature has used the expression "the Controller shall give leave to the tenant to contest the application. " When the language of a statute is plain the principle that legislature speaks its mind in the plainest language has to be given full effect. The legislature has used the plainest language namely "facts disclosed in the affidavit of the tenant" and avoided the phraseology of the 500 analogous provision in order XXXVII, C.P.C., namely "substantial defence" and "vexatious and frivolous defence". E; 513 G: 514 B D] (b) Undoubtedly, the rules of natural justice, apart from the adversary system we follow must permit the landlord to contest the affidavit filed by the tenant and he can do so by Sling an affidavit in reply. If the averments made in the affidavit of the tenant are controverted by the landlord, that fact may be borne in mind but if the facts disclosed in the affidavit of the tenant are contested by way of proof or disproof or producing evidence in the form of other affidavits or documents that would not be permissible. The Controller has to confine himself to the affidavit filed by the tenant under sub section (4) of section 25B and the reply, if any and on perusing these, he has to pose to himself the only question: Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in section 14(1)(e) ? on browsing through the affidavit of the tenant, if there emerges averment of facts which, on a trial, if believed would non suit the landlord, leave ought to be granted. The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against other set of affidavits as it is clear from the language of sub section (S) of section 25B that he has to confine himself to the affidavit filed by the tenant disclosing such facts as would primafacie and not on contest disentitle the landlord from obtaining an order for recovery of possession. It is wholly impermissible for the Controller to proceed to examine the rival contentions on the basis of affidavits untested by cross examination and unproved documents. The regular trial required to be held by a Court of Small Causes as contemplated by sub section (6) read with sub section (7) of section 25B is not to be substituted by affidavits and counter affidavits. The scheme of section 25B does not introduce a trial for arriving at the truth at the stage of proceeding contemplated by sub section (4) of section 25B. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown. [524 B; 523 H; 524 A; SIS G H; 514 A; 516 A C; 517 E G; 518 B; 516 E] Santosh Kumar vs Bhai Mool Singh ; , relied on. section Kanjibhai & Ors. vs Mohanraj Rajendra Kumar A.I.R. 1970, Gujarat 32 and Kishan Singh vs Mohd. Shafi & Ors., A.I.R. 1964 J & K 39; approved. (c) Section 14(1) starts with a non obstante clause which would necessarily imply that the Controller is precluded from passing an order for recovery of possession in favour of the landlord unless the case is covered by any of the clauses of the proviso. Upon a true construction of cl. (e) of the proviso to section 14(1) it would appear that the burden is on the landlord to satisfy the Controller that the premises are let for residential purpose, that possession is required by him bonafide for occupation as residence for himself or for any member of his family and that he has no other reasonably suitable residential accommodation. This burden, the landlord is required to discharge before the Controller gets jurisdiction to make an order for eviction. On a combined reading of section 14(1)(e) and sub sections (1) and (4) of section 25B, the legal position that emerges is that on a proper application being made in the prescribed manner which is required to be 501 supported by an affidavit, unless the tenant obtains leave to defend as contemplated by sub sections (4) and (S) of section 25B, the tenant is deemed to have admitted all the averments made in the petition filed by the landlord and the Controller would act on the admission of the tenant presuming every averment in the petition of the landlord as unchallengeable and truthful. This consequence itself is sufficient to liberally approach the prayer for leave to contest the petition. [514 E H; 515 D E; 513 E] (d) The underlying thrust of all rent restriction legislation is to check profiteering by owners of property and to protect weaker sections. Their provisions are not to be so construed or interpreted as would make the protection conferred on the tenant illusory. [512 E F: 510 E F] Bahadur Singh & Anr. vs Muni Sabrat Das & Anr., p[1969] 2 S.C.R. 432, Kaushalya Devi & Ors. vs Shri R.L. Bansal, ; , Bega Begum & Ors. vs Abdul Ahad Rehman ; referred to. (e) A code of procedure is something designed to facilitate justice and further its ends. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard. Too technical construction that leaves no room for reasonable elasticity of interpretation should be guarded against lest the very means designed for the furtherance of justice be used to frustrate it. The procedure prescribed in Chap. IIIA is harsh and weighted against the tenant. The Controller is the final arbiter of facts. Once leave is refused no appeal is provided against the order refusing leave. No one should be in doubt about the narrow constricted jurisdiction of the High Court while interfering with findings of facts in exercise of revisional jurisdiction. Wisdom, sagacity and the consequence of refusal to grant leave coupled with limited scope of inquiry being confined to facts disclosed in the affidavit of the tenant should guide the approach of the Controller. [527 B C; 513 D; 527 F G H; 528 A] Sangram Singh vs Election Tribunal, Kotah & Anr., [1955 Z S.C.R. I and Maneka Gandhi vs Union of India, [1978] 2 S.C.R. 621, referred to. In the instant case, the Controller had overlooked disclosure of important facts which put the bona fides of the landlord in issue and necessitated grant of leave to the appellant: The leave and licence agreement had been renewed in 1972 and 1973 though the landlord had been in Delhi since 1972; the landlord had admitted that the identical unit at the back of the demised premises which had fallen vacant in 1973 had been let out to another tenant; no action had been taken till 1979 on the notice seeking eviction served in 1974; every time a fresh letting had been indulged into, it had been done after raising the rent; and the landlord who had sought possession for himself and was admittedly in Delhi had not stated a single word on oath about his requirements and as to in what right he was occupying the premises in which he was staying. [529 B H; 530 A E] The High Court had adopted an incorrect approach as to how the matter had to be examined at the stage of granting or refusing to grant leave under sub 502 section (S) of 8. 25B. It had failed to ascertain as to when the licence had been terminated and a contract of lease entered into and what were the terms of the lease as alleged by the landlord and whether the rules of the local authority permitted use of the premises for non residential purposes. The High Court had dismissed the contention that the landlord had other suitable accommodation by an observation that the Controller had rightly come to the conclusion that the premises in which the landlord was residing belonged not to the landlord but to his brother. This approach was unjustified because the question was not whether the landlord was the owner of the premises occupied by him but the substantial question was in what right he was occupying it for a period extending over 7 years and how it had become imperative for him to vacate the same. [530 F H; 531 A H] 2. The contention that the non obstante clause in sub section (7) of section 25B excludes the application of sub section (2) of section 37 but not of sub s.(l) of 8. 37 and therefore it was obligatory for the Controller to not only hear the landlord but examine evidence at the stage of granting or refusing to grant leave to contest cannot be accepted. Sub section (2) of section 37 provides that subject to any rules that may be made under the Act, the Controller shall, while holding an inquiry in any proceedings before him, follow as far as may be, the practice and procedure of a Court of Small Causes. including the recording of evidence. The very fact that sub section (7) of section 25B provides that while holding an inquiry in a proceeding to which Chap. IIIA applies, the Controller has to follow the practice and procedure of a Court of Small Causes including the recording of evidence indicates the legislative intention of treating Chap. IIIA and especially section 25B as a self contained code and this conclusion is buttressed by the provision in sub section (1) of section 25B which provides that every application by landlord for recovery of possession of any premises on the ground specified in cl. (e) of the proviso to section 14(1) shall be dealt with in accordance with the procedure specified in section 25B. That is why sub section (7) of section 25B opens with a non obstante clause. Any other section, including sub section (t) of s 37 prescribing procedure for disposal of an application covered by sub section (l) of section 25B is therefore excluded. The exclusion of section 37(1) also necessarily follows from the provision contained in sub section (10) of section 25B which makes it clear that the procedure prescribed for holding. an inquiry consequent upon the granting of leave to contest shall be the same as required to be followed by the Controller for disposal of applications. Sub section (10) of section 25B operates to bring ins 37(1) after leave to contest is granted. If sub section (1) of section 37 were to govern all proceedings including the application for leave to contest the proceedings, both sub section (7) and sub section (10) of section 25B would be rendered redundant. [525 C; 524 E F; 526 A B; 525 A B; 525 E F H] 3. Neither the argument that the scope and ambit of sub section (S) of section 25B of The Act in its comparison with O. XXXVII, r. 3 sub r. (S) C.P.C. is no more res integra in view of the decision in Busching Schmitz (P) Ltd. vs P.T. Menghani & Anr. nor the interpretation of the observations therein to the effect that the scope for granting leave under sub section (S) of section 25B is narrower than the one under o. XXXVII, r. 3 can be accepted. It is not clear from the decision whether the Court took note of the whole of the re structured r. 3 or it was keeping in view the unamended r. 3 of o. XXXVII. The provisoes to o. XXXVII, r. 3 make it clear that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is 503 frivolous or vexatious. On the other hand, sub section (S) of section 25B makes it obligatory upon the Controller, by use of mandatory language, to give leave if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for recovery of possession. Under o. XXXVII, r. 3, defence has to be substantial before leave can be obtained. Mere disclosure of facts is the sine qua non under sub section (S) of section 25B. Further, the Court can grant conditional leave or leave limited lo the issue under O. XXXVII, r. 3; no such power is conferred on the Controller under sub section (S) of section 25B. Assuming that o. XXXVII, r. 3 (S) confers wider discretion on the Court that, by mere comparison, cannot cut down or narrow or limit the powercoupled with the duty conferred on the Controller under sub section (S) of section 25B. [519 D H; 520 A G; 519 A B; 521 F] Busching Schmitz (PJ Ltd. vs P.T. Menghani & Anr., ; ; B.N. Mutta & Ant. vs T.R. Nandi, ; ; Charan Dass Duggal vs Brahma Nand (C.A. No. 179/82 decided on 11 1 1982) and Om Prakash Saluja vs Smt. Saraswati Devi (C.A. No. 527/82 decided on 8 2 1982), referred to. Sarwan Singh & Anr. vs Kasturilal, ; , distinguished. Mohanlal v Tirath Ram Chopra & Anr. 22 (1982)Delhi Law Times 1, disapproved. (per Sen, 1., dissenting) 1. (a) There is a definite public purpose behind enactment of Chap. IIIA and sub section (S) of section 25B must be construed in a sense which would carry out that purpose. section 14A was enacted to ensure that all government servants to whom residential accommodation had been allotted by the Government vacated such accommodation if they had any house of their own in the Union Territory of Delhi and the section conferred upon them the right to recover immediate possession of their own houses. Further, experience in the past had shown that landlords who were in bonafide requirement of their accommodation for residential purpose under cl. (e) of the proviso to sub section (1) of section 14 were being put to great hardship due to the dilatory procedure of the suit. The object behind enactment of Chap. IIIA was that these two classes of landlords should not be at the mercy of law 's delays but there should be a quick and expeditious remedy available to them against their own tenants. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under section 14A. Chap. IIIA seeks to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. The words "if the affidavit filed by the tenant discloses such facts" used in sub section (S) of section 25B must therefore take their colour from the context in which they appear. [533 A D E F H; 534 A; 536 D; 535 C D; 535 A B] Sarwan Singh vs Kasturi Lal, ; , referred to. (b) The Controller obviously cannot come to a decision as to whether or not leave to contest should be granted under sub section (S) of section 25B without 504 affording the parties an opportunity of hearing. The Controller must conform to the rules of natural justice. Once it is conceded that the landlord has a right to be heard, the Controller is bound to give him an opportunity to refute the facts alleged by the tenant in his affidavit filed under sub section (4) of section 25B. The Controller must apply his mind not only to the averments made by the landlord in his application for eviction, but also to the facts alleged by the tenant in his affidavit for leave to contest as well as the facts disclosed by the landlord in his affidavit in rejoinder, besides the other material on record i.e., the documents filed by the parties in support of their respective claims, in order to come to a conclusion whether the requirements of sub section (I) of section 25B are fulfilled. To ask Controller to confine himself only to the affidavit filed by the tenant is to ask him not to apply his mind in a judicial manner even if he feels that tho justice of the case so demands. The Controller must endeavour to resolve the competing claims of landlord and tenant to the grant or refusal of leave by finding a solution which is just and fair to both the parties. It is not that the proceedings initiated on an application by the landlord under section 14(1) (e), or under section 14A must undergo trial at two stages. Under sub section (S) of section 25B, the Controller must prima facie be satisfied that the facts alleged by the tenant are such as would disentitle the landlord from obtaining an order for recovery of possession. The word 'disentitle ' is a strong word, and the Controller must be satisfied that the tenant has such a defence as would defeat the claim of the landlord under section 14 (1) (e) or under section 14A. It cannot be that the Controller would set down the application for trial merely on perusal of the affidavit filed by the tenant without applying his mind to the pleadings of the parties and the material on record. If he finds that the pleadings are such as would entail a trial, then the Controller must grant the tenant leave to contest as the words "shall grant to the tenant leave to contest" in sub section (S) of section 25B make the grant of leave obligatory. [536 G; 537 B H; 538 A B] 2. The scope of sub section (S) of section 25B is restricted and the test of "triable issues" under O. XXXVII. r. 3 (5), C.P.C. is not applicable, as the language of the two provisions is different. The use of the word 'such ' in sub section (5) of 6. 25B implies that the Controller has the power to limit the grant of leave to a particular ground. A tenant may take all kinds of pleas in defence. The whole object of sub section (5) of section 25B was to prevent the taking of frivolous pleas by tenants to protract the trial. Where the tenant seeks leave to contest the application for eviction under section 14(1) (e), or under section 14A, he must file an affidavit under sub section (4) of section 25B raising his defence which must be clear, specific and positive. The defence must also be bonafide and if true, must result in the dismissal of landlord s application. Defences of negative character which are intended to put the landlord to proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in terms of sub section (5) of section 25B. The trial must be confined only to such grounds as would disentitle the landlord to any relief.

The appellants applied to the Rent Controller for fixation of fair and standard rent of certain shops and other premises alleging that the rent charged by the landlords was exorbitant. The questions arising for determination were (1) whether the Delhi and Ajmer Marwara Rent Control Act, 1947 in so far as it provided for the fixation of standard rent in respect of premises the construction of which was completed after March 24, 1947 by the Rent Controller violated the fundamental right guaranteed under article 14 of the Constitution; and (2) whether the procedure to be followed by the Rent Controller 'violated the principles of natural justice. Held, that section 7A and the relevant provision , of Sch. IV of the Act laying down the procedure for fixing standard rent by the Rent Controller are not unconstitutional and do not violate article 14 of the Constitution. The classification between premises the construction of which was completed before March 24, 1947 when the Act came into force and those which were completed thereafter, is reasonable, and the criteria for the fixation of standard rent for both old and new buildings under the Act were not substantially different. The procedure laid down under those provisions does not violate the principles of natural justice. The power given to the Rent Controller is not arbitraly and he has to exercise it on a judicial consideration of all the circumstances of the case. 948 G.D. Soni vs section N. Bhalla, A.I.R. 1959 Punj. 381 approved. New Prakash Transport, Co. Ltd. vs New Suwarna Transport Co. Ltd., , Union of India vs T.R. Verma (1958) S.C.R. 499 followed. In the instant case ample opportunity was given to the landlord for producing all relevant evidence in the case which he did not avail himself of. It was not necessary under para 2, Sch. TV, to have two enquiries one for ascertaining whether there were good reasons for believing that the rent charged was exorbitant and another for fixing the standard rent. The proceedings before the Rent Controller were not vitiated merely because standard rent of certain vacant shops was also. , fixed in the process of fixing the standard rent for the entire building in which those shops were situated; that would not affect the legality of the fixation of the rent for the shops which had been let out to tenants.

T.A. Jotindranath Mudaliar, the original lessor, let out his premises viz. two shops and a house adjoining the shops to M/s,Bhoolchand Chandiram, appellant on 4.10.1943 on the terms contained in the letter dated 4.10.1943 whereby the shops were let out on a monthly rent of Rs.430 for two years with the option of sub letting one of the shops and the house adjoining the shops was let out on a monthly rent of Rs.50 for eleven months with the option of sub letting the house also. The appellant sub let one of the two shops to one 'Arts Palace ' and later w.e.f. 1.4.1948, the appellant inducted another sub tenant M/s. Super Dry Cleaners, appel lant in the other appeal. Consequent upon a partition in the family of original lessor, the premises in dispute came to the share of Narendranath Mudaliar. The original lessor including Narendranath Mudaliar after partition continued to realise rent from the tenant of the entire premises till May 1974. On 28.6.1974, Narendranath Mudaliar sold the property in question to respondent No. 1. The appellanttenants at torned in favour of respondent No. 1 and paid rent for the premises @ Rs.335 (fair rent fixed) to respondent No. 1. Respondent No. 1 filed petition on 5.9.1975 for eviction of the appellant on the grounds of sub letting and bona fide need of the landlord under clauses (f) and (h) of the provi so to sub section (1) of Section 21 of the Karnataka Rent Act. The trial court dismissed the application, but the High Court set aside that order and passed a decree for eviction on both the grounds. Hence these appeals by the tenant and sub tenant have been filed after obtaining special leave of the Court. The appellants question the findings of the High Court on both the questions viz. bona fide requirement of the landlord as also sub letting. 252 Respondent No. 1 on the other hand urged that there is no infirmity in the High Court 's decision on both the questions so as to warrant any interference in these appeals. Dismissing the appeals, this Court, HELD: Landlord 's written consent for sub letting during the period of contractual tenancy cannot be construed as his consent subsisting after the expiry of the contractual tenancy. [265D] A sub letting by the tenant with the consent in writing of the landlord does not become unlawful on the expiry of the contractual tenancy of the tenant, unless there is any fresh sub letting by the tenant without the written consent of the landlord. Mere continuance in possession of a sub tenant lawfully inducted does not amount to any fresh or further sub letting. [265E F] The sub letting in the instant case was after expiry of the contractual tenancy and after the commencement of the Act prohibiting sub letting without the written consent of the landlord when it was made on 1.4.1948. [265B] Damadilal and Ors. vs Parashram and Others, [1976] supp. SCR 645; Dhanapal Chettiar vs Yesodai Ammal ; ; Smt. Gian Devi Anand vs Jeerart Kumar and Ors., [1985] Supp. 1 SCR 1; L. Mahabir Prasad Verma vs Dr. Surinder Kaur, ; ; M/s. Shalimar Tar Products Ltd. vs H.C. Sharma and Ors. , ; ; Shantilal Rampuria and Ors. vs M/s. Vega Trading Corpn. and Ors., ; ; M/s. Bajaj Auto Ltd. vs Behari Lal Kohli, ; ; Duli Chand (dead) by Lrs. & Ors. vs Jagmender Dass, ; and Tara Chand and Ant. vs Ram Prasad, , referred to.

In both Civil Appeal No.41 of 1979 and Civil Appeal No. 379 of 1980, the appellants are the unsuccessful house owners to get an eviction order against their tenants from the portions of their respective houses from the court 's below. In the first case, the questions arose whether the portion of the premises sought to be vacated by the landlady was one single unit or two separate units. In the second case, the point involved was whether the word " occupation" included actual residence of the landlord even though the may not have been residing there. Allowing the appeals, by special leave, the Court, ^ HELD: (C.A. No. 41/1979) In view of the Trial Court 's finding basing its decision on the report of the Commissioner appointed for the purpose, that the entire building constituted one single unit, the appellant being in occupation of a portion of the same, she is entitled to get release of the other portion occupied by the tenant. [323F G] In C.A. No. 379/1980. The case of the appellant is clearly covered by the provisions of Explanation (iv) to section 21(1)(b) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction), Act 1972. [323C] 1:2. The policy of the law was to give a facility to the landlord so to secure the entire building where he is in occupation of a part of the same and wants to occupy the whole house. [321D] 316 1:3. In Babu Singh Chauhan vs Rajkumari Jain & Ors. ; , the Supreme Court, while construing the word "occupation" occurring in section 21(1)(b) of the 1972 Act, used the word "possession", treating the word "possession" as synonym of "occupation" and since the word "possession" or "occupation" may take various forms held that even keeping the house hold effects by the owner is an act of occupation. [319H, 320D G] Therefore, even if a landlord is serving outside or living with his near relations but makes casual visits to his house and thus retains control of over the entire area or a portion of the property, he would in law be deemed to be in occupation of the same. To accept the contention that Explanation IV required actual physical occupation by the landlord of the portion retained by him would destory the very concept of constructive or actual possession or occupation. [320H; 321A B] 2:1. All the Rent Control Acts try to deprive and curtail the right of an owner of his property and have put constraints and restraints on his right by giving substantial protection to the tenants in public interest, otherwise if Rent Acts were to be abolished or were not there, the landlord could get a tenant evicted only by a notice after expiry of the tenancy in accordance with the provisions of the Transfer of Property Act.[321E F] 2:2. The words "shall be conclusive to prove" in Explanation (iv) clearly indicate that it is a substantive right which belongs to the landlord and which has been affirmed and recognised if a part of an accommodation is retained by the landlord. The words "conclusive to prove that the building is bona fide required by the landlord" does not constitute a rule of evidence. [321F G] 2:3. The right to ejectment having accrued to the appellant under Explanation (iv) was a vested right as an owner and could not be affected by the 1976 amendment unless it was couched in a language which was either expressly or by necessary intendment meant to be operative retrospectively. Explanation (iv) deals not merely with a particular procedure but with the substantive rights of the parties. The said Explanation has asserted and affirmed the substantive right of a landlord to get portion of a building vacated where he is in occupation of a part of it. Such a substantive right cannot be taken away merely by a procedural amendment nor does the language of the amendment introduced the 1976. Act envisage or contemplate such a position. Section 14 of the 1976 Act merely recites that Explanation (ii) and (iv) of s.21(1)(b) shall be omitted. There is nothing to show that the legislature intended to give any retrospective effect to the deletion of Explanation (iv). [321H, 322A D] 3. The argument that merely because the landlord was living with his son or his relation after retirement and, therefore, was not in occupation of the house cannot be accepted because it was not for the tenant to dictate to the landlord as to how he should use his own premises. A tenant to has got no right nor any business to interfere with the mode or manner in which a landlord may choose to use his property or live therein. [323 A B] 317

This is a tenant 's appeal filed after obtaining Special Leave from the Court. The Respondent landlord of tenanted premises (i.e. two sheds) filed a petition for ejectment of the appellant from the premises in question before the Rent Controller. According to the Respondent landlord the monthly rent payable by the appellant was Rs.950 p.m. which was liable to be enhanced under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 from Rs.950 to Rs.1142 p.m. Accordingly, the respondent caused a notice to be given to the appellant claiming rent @ Rs. 1142 w.e.f. 26.6.1974 till June 1977 and since the appellant defaulted in making payment of the rent, he was liable to be ejected from the demised premises. The tenant denied that the rent was liable to be enhanced as claimed by the landlord. He further asserted that he had already paid rent upto March 1975 by means of cheques and that he had tendered the ar rears of rent together with interest and costs as assessed by the Rent Controller on 5.12.1977. On this reasoning he urged that he was not liable to be evicted on the ground taken in the Petition. The landlord in the replication denied the receipt of rent for the period from May 1974 to November, 1977 @ Rs.1142 p.m. Alternatively he claimed that the rent to the extent of Rs.36,100 was due to him from the appellant @ Rs.950 p.m. from 1st May, 1974 to June 30, 1977. The Rent Controller held that the landlord respondent was not entitled to recover the rent @ Rs.1142 p.m. but only Rs.950 p.m. as agreed between the parties and the appellant has failed to pay the rent from 1.4.1975. Accordingly, the Rent Controller directed the ejectment of the appellant from the premises by granting him two months time. 987 The appellate authority having affirmed the order of the Rent Controller, the appellant filed a Civil Revision before the High Court under Sub section (6) of Sec. 15 of the Act. Before the High Court it was urged by the appellant that since in the application for ejectment no specific amount of arrears of rent due was mentioned as contemplated by CI. (c) of Rule 4 and Clause (1) of Rule 5 of the Haryana Urban (Control of Rent and Eviction) Rules he could not be evict ed. Finding no substance in the said contention, the High Court rejected the Civil Revision. Hence this appeal. The appellant raised two contention before this Court viz., that the High Court has ignored to note the statutory obligation cast on the Rent Controller as per the proviso attached to Sec. 13(2)(1) of the Act requiring him to calcu late and determine the quantum of arrears of rent; even at the first instance has not been complied with and (ii) that the application for ejectment was not in accordance with the mandatory provisions of Rule 4(c) 5(1) and 6 of the Rules framed under the Act. Dismissing the appeal, this Court, HELD: The proviso to Sec. 13(2)(i) requires the tenant to pay or tender the actual arrears of rent within 15 days of the first hearing of the application for ejectment after due service alongwith the interest to be calculated by the Controller at 8 per cent per annum on such arrears together with such costs of the application, if any, as may be al lowed by the Controller. [994B] When there is a statutory obligation on the tenant either to pay or tender the arrears of rent within a period of 15 days of the first hearing of the application for ejectment after due notice it is for him to calculate the exact arrears of rent due and to pay or tender the same and if the tenant fails to do so he is deemed to have not paid or made the valid tender of the rent. [994D] The non compliance of Rule 4(c) i.e. the non mentioning of the quantum of arrears of rent, does involve no invali dating consequence and also does not visit any penalty. [999B C] Rules 4(c), 5(1) and 6 are not mandatory but only directory. [999C] If the statute is mandatory, the things done not in the manner or form prescribed have no effect or validity. But if it is directory, the non compliance may not lead to any serious and adverse consequence. [995H; 996A] 988 The word "shall" in its ordinary import is obligatory. Nevertheless the word "Shall" need not be given that conno tation in each and every case and the provisions can be interpreted as directory instead of mandatory depending upon the purpose which the legislature intended to achieve as disclosed by the object, design, purpose and scope of the statute. [998H; 999A B] No prejudice is writ large in the present case because proof of prejudice is also one of the necessary criteria besides non compliance of the provision to invalidate the Act. [999G] Sheo Narain vs Sher Singh, ; , Not applicable. Sham Lal (dead) by Irs. vs Atme Nand Jain Sabha (Regd.) Dal Bazar, ; , Not applicable. Montreal St. Rly. Co. vs Normandin, ; , re ferred to. Seth BikhrajJaipuria vs Union of India, ; , referred to. Raza Buland Sugar Co. Ltd. vs Municipal Board, Rampur, ; , referred to. K. Kamraj Nadar vs Kunju Thevar and Others, , referred to. Subbarao vs Member, Election Tribunal, Hyderabad, ; , referred to. State of U.P. & Others vs Babu Ram Upadhya, ; , referred to. Ajit Singh vs State of Punjab, ; , referred to.

The appellant defendants fell in arrears of rent for the months of February and May to August 1974 for the demised premises. The respondent plaintiffs sought their eviction under section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 on the grounds of default. Decreeing the suit, the trial court found that rent for the said five months had not been paid. The decree was affirmed by the appellate court in part, that is, in respect of May and June, 1974. That finding was affirmed by the High Court. Allowing the appeal by special leave, the Court, HELD: The Supreme Court does not ordinarily interfere in proceedings under Article 136 of the Constitution particu larly when all the courts below had reached the same conclu sion. But where the finding of fact is based on no evidence or opposed to the totality of evidence and contrary to the rational conclusion to which the state of evidence must reasonably lead, then the Court will in the exercise of its discretion intervene to prevent miscarriage of justice. [154C D] In the instant case, there was no reliable oral evidence on the side of the plaintiffs to support the allegation that rents were in arrears. Nor was there any documentary evi dence in support of their case. Neither the first plaintiff, the widow nor the other two plaintiffs, her children, testi fied in support of the allegation PW 4, who verified the plaint on behalf of the plaintiffs admittedly had no person al knowledge that the defendants were in arrears of rent or whether the first plaintiff or anybody else had demanded rent from the defendants. [156F G] On the other hand, DW 8, one of the defendants, stated that for the months of May and June 1974 he had paid the rent in June 1974 by 153 handing over the amount to the first plaintiff 's daughter when she went to his shop tO collect the rent. Since she was a minor he accompanied her to her house to make sure that the amount was received by her mother, the first plaintiff. This evidence has been supported by DW 7. He was the Ac countant of the first defendant firm. DW 6 also spoke of the fact that in June 1974 the defendants had given Rs.200 as rent to the younger daughter of the plaintiff. These state ments of defence witnesses were categoric and clear. There was no contradiction in term for there was no evidence on the side of the plaintiffs to the contrary. The conclusion arrived at by the courts below that rents remained in ar rears was, therefore, perverse and totally unjustified. [155A B, E; 156D, F, G]

The appellant, a tenant, claimed protection of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. The courts below disallowed the claim, on the ground that clause (iii) of sub section (3) of Section 1, read with the Expla nation was attracted in respect of the appellant. The appellant challenged the validity of clause (iii) of sub section (3) of Section 1 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 before the High Court on the ground that it violated Article 14 of the Constitution. The High Court, following its earlier decision in the J & K Bank Lid. vs State of J & K & Another, AIR1987 J & K 18 upheld validity of the clause. In the appeal before this Court, the appellant tenant contended (i) that the clause was discriminatory and arbi trary, because it drew an artificial distinction between tenants on the basis of their income, in that while those tenants earning net income below Rs.40,000 per annum were protected by the beneficial provisions of the Act, those with annual net income in excess of the statutory limit of Rs.40,000 were unreasonably and unfairly denied the protec tion and this statutory discrimination placed them at the mercy of the landlords, who could easily evict them by recourse to the far less restrictive provisions of the Transfer of 219 Property Act, 1882 and on the strength of their agreements of lease, (ii) that the clause did not take into account the nature of the building, or the need and income of the land lord or any other factor and withheld or extended protection solely on the financial capacity of the tenant, which could vary from year to year, depending upon the nature of his business and other factors, thus exposing the tenant to eviction when the business was prosperous, but protecting him when the business declined and income fell, (iii) that "income" was not a clear and precise concept; limiting it to net income did not make it clearer, and the Act did not indicate the permissible deductions for arriving at the "net" and (iv) that the Section was invalid because it was too broad or vague and any classification based on such vague differentia was unintelligible and, therefore, viola tive of Article 14; and in any view, the classification sought to be made between persons falling on either side of the specified income had no reasonable relation to the object sought to be achieved by the statute. Dismissing the above appeal, and another similar appeal (Civil Appeal No. 1370 of 1987), this Court, HELD: 1.1 The object of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 is undoubtedly to protect the weaker section of tenants from unreasonable eviction and unfair rent. At the same time, the legislature did not desire to discourage persons from constructing buildings. Thus, while protection is afforded to deserving tenants, construction of new buildings is encouraged by exempting buildings occupied by richer classes of tenants from the provisions of the Act. While a building is covered by the Act when occupied by a tenant whose annual net income is less than the specified amount, the protection is withheld when the same building is occupied by a richer tenant whose annual net income is higher than the specified amount. Where a building is occupied by more than one tenant, the applica bility of the Act to each of them would depend upon his net income. It is the tenant that the legislature intends to protect and not the landlord or his building. The test adopted by the legislature for this purpose is with refer ence to the tenant 's net income, whether accruing inside or outside the State, as on the date of the landlord 's applica tion for eviction as well as on the date of the decree for eviction. [224B E] 1.2 The legislative object is, therefore, to protect tenants who are economically weaker in comparison to those affluent tenants falling outside the specified limit of income, and at the same time to encourage construction of new buildings which will result in better availability of 220 accommodation, employment opportunity and economic prosperi ty. This is a reasonable classification which does not suffer from the vice of being too vague or broad. [224E F] 1.3 Classification based on income is well known to law. Such classification has a reasonable relation to the twin legislative object of protecting economically weaker tenants and encouraging new constructions. There is nothing unrea sonable or irrational or unworkable or vague or unfair or unjust in the classification adopted by Section 1(3)(iii) of the Act. [224F; 22SD] 1.4 The legislature in its wisdom is presumed to under stand and appreciate correctly the problems of the State and the needs of the people made manifest by experience. Absent blatant disregard of constitutional provisions, legislative innovation by social and economic experimentation must be permitted to continue without judicial interference. [225B] The J & K Bank Ltd. vs State of J & K & Another, AIR 1987 J & K 18, approved. Rattan Arya & Others vs State of Tamil Nadu & Another, ; and Motor General Traders & Another vs State of Andhra Pradesh & Others, ; , distin guished. Kerala Hotel & Restaurant Association & Ors. vs State of Kerala & Ors., [1990] 1 JT SC 324, relied on. Krishna Dalmia vs Shri Justice S.R. Tendolkar & Others, ; , referred to. 2. There is no lack of clarity in the concept of "in come" or net income. Income is money or other benefit peri odically received. It is profit or revenue and not capital. It is a gain derived from capital or labour or both. Net income is income obtained after deducting all expenses incurred for the purpose of earning the income. It is income minus operating expenses. The concept of net income is what it is ordinarily understood to be in common parlance, and not necessarily limited by the technicalities of any fiscal enactment. [224G H] Banarasi Das vs Jagdish Raj Kohli, AIR 1960 J & K 5. re ferred to.

Appeal No. 27 of 1960 WITH Civil Appeals Nos. 574, 92 411 and 285 of 1960, 351 of 1959 and Petitions Nos. 20 and 106 of 1960. Appeal by special leave from the judgment and order dated August 6, 1957, of the Patna High Court in M. J. C. No. 57 of 1956. Lal Narayan Sinha and section P. Varma, for the appellants (in C. A. No. 27 of 1960). D. Goburdhan, for respondents Nos. 1 to 7. K. K. Sinha, for the appellant (in C. A. No. 574 of 1960). D. P. Singh, for the respondent. D. P. Singh, for the appellants (in C. A. No. 92 of 1960). D. Goburdhan, for the respondents. R. C. Prasad, for the appellants (in C. A. No. 411 of 1960). L. K. Jha, section K. Jha and K. K. Sinha, for the respondents. section P. Varma, for the appellants (in C. A. No. 285 of 1960). L. K. Jha, B. K. Garg and section C. Agarwal, for the respondent. section P. Varma, for the appellant (in C. A. No. 351 of 1959). R. K. Garg and section C. Agarwala, for the respondents. Tarkeshwar Dayal, K. K. Sinha and R. C. Prasad, for the petitioners (in Petition No. 20 of 1960). Lal Narayan Sinha and section P. Varma, for respondent No. 1. R. K. Garg and section C. Agarwala, for the petitioner (in Petition No. 106 of 1960). section P. Varma, for respondent No. 1. 384 1961. April 25. The judgment of the Court was delivered by DAS GUPTA, J. The common question which arises for decision in this group of cases is as regards the validity of the Bihar Act No. XVI of 1959 (Bihar Land Reforms Amendment Act, 1959), in so far as it amends with retrospective effect sections 4 and 6 of the Bihar Land Reforms Act, 1950, to be indicated later, and inserts the new sections, section 7B and section 7C in that Act. It appears that sometime after the Bihar Land Reforms Act became law and action was taken under section 3 thereof by the State Government issuing notifications, declaring that the estates or tenures of proprietors or tenure holders, specified in the noti fications had passed to and become vested in the State, the Revenue authorities started interfering with the rights of those ex proprietors and ex tenureholders to hold Melas on lands of which they were thereafter in occupation as occupancy raiyats under the State and started settling rights to realise tolls from such Melas on behalf of the State Government. Aggrieved by this action taken by the Revenue authorities on behalf of the State Government applications were made by several of these erstwhile intermediaries now occupancy raiyats to the High Court of Patna for writs restraining the Government and its officers from such interference with their rights. Five such applications have given rise to the five appeals which are numbered as C. A. No. 351 of 1959, C. A. No. 27 of 1960, C. A. No. 92 of 1960, C. A. No. 285 of 1960 and C. A. No. 411 of 1960. The High Court held that in view of the provisions of section 6 of the Bihar Land Reforms Act (before its amendment) and the fact that the provisions made in section 4(a) of the Act about the consequences that would ensue on the vesting of an estate or tenure in the State were "subject to" the provisions of section 6, the State had no right to hold Melas on the Bakasht lands of the ex intermediaries now occupancy raiyats. Accordingly the High Court allowed the applications and issued writs as prayed for. Against these orders of the High Court the State of Bihar and its officers have preferred the 385 five appeals mentioned above, after obtaining special leave from this Court. Some time after special leave was obtained by these appellants the Bihar Legislature enacted in 1959, the Bihar Land Reforms Amendment Act, 1959, (Bihar Act XVI of 1959). This Act amended inter alia section 4, cl. (b) of the Bihar Land Reforms Act, 1950, by adding the word "Mela" after the words "jalkars, hats, and bazars" and by omitting the words "subject to the subsequent provisions of this Chapter" in cl. (a) of section 4. It also amended section 6 of the 1950 Act by substituting for the words "Notwithstanding anything contained in this Act" the words "subject to the provisions of sections 7A and 7B". Of these section 7B provides that "Where on any land deemed to be settled with the intermediary under the provisions of section 5, section 6 or section 7, a Mela was being held by the intermediary at any time within 3 years of the date of vesting, the right to hold such Mela on such land shall, with effect from such date, vest in the State and notwithstanding anything contained in any law, the State shall have and the intermediary shall not, except with the consent of the State Government have the right to hold such Mela on such land or to do anything which may prejudicially affect such Mela". Section 7C contains provisions as regards settlement of hats, bazars or melas referred to in section 7A and section 7B and provides inter alia that settlements will be made with the outgoing intermediary or his heir after application is received from him and if there are several of them who apply for settlement, with the most suitable of them. The Amending Act made the amendments mentioned above, except the insertion of a. 7C, retrospective, with effect from the date of enactment of the parent Act. The Amending Act had already been passed, when several other applications under article 226 of the Constitution for similar relief against the interference by the Government with the intermediaries ' right to hold Melas came up for consideration before the High Court. The High Court rejected these applicants ' attack against the validity of the Amending Act and held that in view of the provisions 386 now made the applicants were not entitled to any relief. Civil Appeal No. 574 of 1960 has been preferred by one of such applicants on a certificate granted by the High Court. The two applications under article 32 of the Constitution were filed in this Court for writs of mandamus against the State of Bihar and its officers restraining them from interfering with the applicant 's right to hold melas on their lands. Both of these were filed after the Bihar Land Reforms Amendment Act, 1959, had become law. It is obvious that if the Amending Act is valid legislation, in so far as it amends with retrospective effect section 4 and section 6 of the 1950 Act as mentioned above and inserts section 7B, the ex intermediaries have not and the State has the right to hold melas on the Bakasht lands. The main question therefore is whether this is a valid legislation. To answer this question we have to examine in the first place whether the Bihar Legislature which enacted the Amending Act had on that date the legislative competence under article 246 of the Constitution to do so; and secondly, whether the law was void because of the provisions of article 13 of the Constitution. The Amending legislation was clearly within Item 42 of the Concurrent List, being a law as regards acquisition of property. Mr. Tarkeshwar Dayal, who appeared on behalf of one of the ex intermediaries submitted that this was really not a matter of land reform; the purpose of the Amending legislation being only to augment the revenue of the State. It is true that the law by taking the right to hold melas from certain persons and giving it to the State is likely to augment the revenues of the State. It may well be that this object of augmenting the revenues was one of the main purposes behind the Amending legislation. That however is no reason to think that this legislation is not also concerned with land reform. It is however unnecessary for us to consider this question further, for whether it is a law as regards land reform or not, it is clearly and entirely as regards acquisition of property. The question of the legislature having attempted legislation not within 387, its competence by putting it into the guise of legislation within its competence does not even arise. The conclusion that necessarily follows is that the amending legislation was within the legislative competence of the Bihar Legislature under article 246 of the Constitution. This brings us to the main question in controversy, viz., whether the amending legislation is void on the ground that it violates articles 31, 19 and 14 of the Constitution. A complete answer to this question is furnished in favour of the State if this is a law within the saving provisions of article 31A. article 31A was enacted in the Constitution by the Constitution (First Amendment Act) with retrospective effect from the commencement of the Constitution. It was further amended by the Constitution (Fourth Amendment) Act, also with retrospective effect from the date of the commencement of the Constitution. This Article provides inter alia, that notwithstanding anything contained in article 13, no law providing for the acquisition by the State of any estate or of any rights therein. . . shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by articles 19, 31 and 14 of the Constitution. Is the amending legislation a law "providing for the acquisition by the State of any estate or of any rights therein?" Two arguments have been advanced on behalf of the ex intermediaries to convince us that it is not such a law. The first argument is that what the amending legislation provides for is not "acquisition" at all within the meaning of article 31A as it is not "acquisition" for a public purpose. It has been urged that the purpose is a mere augmentation of revenue. It does not appear to us that when the right of holding the Mela is taken over by the State the only purpose is the augmentation of revenue. There is scope for thinking that the legislature believed that melas would be better run and be more in the interests of the general public when run by the State than when they are left without control in the hands of private individuals with whom the profit motive is 388 likely to be the sole guiding principle. It is unnecessary however to answer this question for, in our opinion, a law, may be a law providing for "acquisition" even though the purpose behind the acquisition is not a public purpose. It is important to notice that the Constitution (Fourth Amendment) Act made important alterations in article 31 also. One of the amendments of article 31 was that clause 2 now provides that no property shall be compulsorily acquired, (1) save for a public purpose and (2) save by authority of a law which contains provisions for compensation for the property acquired and either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given. Then, article 31 A provides inter alia that a law providing for "acquisition" will not be void on the ground that it is inconsistent with or takes away or abridges a right conferred by article 31. Reading the two articles together as they stand after the fourth amendment of the Constitution it becomes obvious that when article 31A speaks of a law of "acquisition" it contemplates a law which may be for acquisition, though not for a public purpose and lays down that even though this will be in violation of the fundamental right guaranteed by the first part of article 31(2) the law will not be void because of such violation. The question whether the validity of a law for compulsory acquisition of property by the State can be challenged on the ground that the "acquisition" is not for a public purpose bad to be considered by this Court even before the amendment of article 31(2) as mentioned above in The State of Bihar vs Sir Kameshwar Singh (1). article 31(2) as it then stood did not in so many words provide that no acquisition can be made save for a public purpose; but it was argued on behalf of the State that such a provision was implicit in the words of article 31(2). This argument was rejected by Mahajan and Chandrasekhara Aiyar, JJ., but it was accepted by Patanjali Sastri, C. J., and Das, J., both of whom held that the requirement of public (1) 389 purpose being a condition for compulsory acquisition laid down by article 31(2) the law was saved in spite of the violation of such condition by article 31(4) and also article 31A. Mukherjea, J., also said that the requirement of public purpose was a condition implied in the provisions of article 31(2). His Lordship then added: "For my part, I would be prepared to assume that cl. (4) of article 31 relates to everything that is provided for in clause (2) either in express terms or impliedly and consequently the question of the existence of a public purpose does not come within the purview of an inquiry in the present case. " It was in this state of judicial opinion that article 31(2) was amended by the Constitution (Fourth Amendment) Act as mentioned above and the requirement of public purpose was expressly made a condition for compulsory acquisition by the State. The basis for the argument that the question whether there was a public purpose or not is open to judicial review in spite of article 31A has therefore disappeared. It is worth noticing in this connection that in Sir Kameshwar Singh 's case(1) the argument that quite apart from anything in article 31(2) as it then stood no law of acquisition could be made except for a public purpose was sought to be reinforced by the words in Item 36 of the State List and Item 42 of the Concurrent List. These items read as follows: "36. Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List Ill." "42. 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. " The argument on the basis of these entries was that the State legislatures had no power to make a, law for acquisition of property without fulfilling ' the condition of public purpose. The Constitution (.Seventh Amendment) Act which came into force on the 1st (1) 50 390 day of November, 1956, deleted Entry 36 of the State List and substituted for the former phraseology of Item 42 of the Concurrent List the words "acquisition and requisition of property". It is quite clear that after its amendment the legislative list permits the State legislature to enact a law of acquisition even without a public purpose; and that the only obstacle to such a law being enacted without a public purpose is the provisions of article 31(2). That obstacle also disappears if the law in question is one within article 31 A. It was next contended that the acquisition of the right to hold the Mela, for which the amending Act provides is not acquisition, in any case, of "rights" "in any estate" within the meaning of article 31A as defined in cl. 2(b) of the same Article. It was argued that this definition includes only rights of persons who are intermediaries and unless the raiyat whose rights are being acquired is an intermediary, that is, a person between the State and the tiller of the soil, his rights are not rights within the definition of "rights in relation to an estate"; and consequently, a law providing for acquisition of the rights of such a raiyat is not a law within the saving provisions of article 31A. It is pointed out that on the date the Amending Act was passed the ex intermediaries had ceased to exist as intermediaries and had become occupancy raiyats under section 6 of the parent Act. What were being acquired therefore, it is argued, were not rights of intermediaries but rights of raiyats who had ceased to be intermediaries. It has to be noticed that the impugned provisions amending section 4 and section 6 and section 7(b) have been given retrospective effect so that the parent Act of 1950 has to be read as containing on the very date of its enactment provisions in these sections not as originally enacted but as they stood after the amendment of 1959. In deciding whether rights of raiyats were being acquired or not we have to forget what happened in consequence of the unmended section 6. Projecting ourselves to the date September 25, 1950, when the President 's assent to the Bihar Land Reforms Act, 1950, was published in the 391 Gazette and reading the Act as containing section 4 and section 6 as amended and also section 7(b) it cannot but be held that what were being acquired by means of these provisions of the amending legislation giving retrospective effect were certain rights of the intermediaries. These intermediaries had not on September 25, 1950, ceased to be intermediaries and the fact that under the unmended provisions of section 6 they later on became occupancy raiyats should not be allowed to confuse the fact that the acquisition of certain properties by the amending legislation being itself with effect from September 25, 1950, what was being provided for was acquisition of intermediaries ' rights. Even if it be assumed that what the amending legislation provided for was the acquisition of raiyats ' rights, there is no justification for holding that these rights were not "rights in any estate" within the definition of el. 2 of article 31A. Clause 2(b) is in these words: "the expression 'rights ' in relation to an estate, shall include any rights vesting in a proprietor, sub proprietor, under proprietor, tenure holder, ralyat, under raiyat or other intermediary and any rights or privileges in respect of land revenue. " The contention on behalf of the ex intermediaries is that the rights of raiyats who are not intermediaries, in the sense of being middlemen between the State and the tiller of the soil, are not within this definition. This contention does not however stand a moment 's scrutiny, for the simple reason, that it is well known that ordinarily at least, a raiyat or an under raiyat is not a person, who can be called an intermediary. It is reasonable to think that the word "raiyat"was used in its ordinary well accepted sense, of the person "who holds the land under the proprietor or a tenure holder "for the purpose of cultivation" and the word "under raiyat" used in the equally well accepted and ordinary sense of "a person who holds land under a raiyat for the purpose of cultivation. " It is necessary to remember in this 392 connection that article 31A as first enacted by the Con stitution (First Amendment) Act did not contain these words "raivat, under raiyat"; and that after the First Amendment the definition ran thus: "the expression rights ', in relation to an estate shall include any rights vesting in a proprietor, sub proprietor, under proprietor,, tenure holder or other intermediary and any rights or privileges in respect of land revenue. " It was the Fourth Amendment which in the year 1956 inserted the words "raiyat, under raiyat "immediately after the words "tenure holder". At that time laws bad already been passed in most of the States for the acquisition of the rights of intermediaries in the estates; rights of raiyats or under raiyats who might answer the description "intermediary" were also within the definition because of the use of the word "or other intermediary". The only reason for specifically including the rights of "raiyats" and "under raiyats" in the definition could therefore be to extend the protection of article 31A to laws providing for acquisition by the State Governments of rights of these "raiyats" or "under raiyats". In the circumstances and in the particular setting in which the words "raiyat" or "under raiyat" were introduced into the definition, it must be held that the words "or other intermediary" occurring at the end, do not qualify or colour the meaning to be attached to the tenures newly added. Another contention raised in support of the argument that the impugned law is not for acquisition of a right in an estate is that the right to hold a Mela is not a right in the lands at all. This contention is wholly unsound. Holding a hat, or bazar or mela is only a mode of user by the owner of his land. Just as he can enjoy the land belonging to him in other ways, he can use it for the purpose of having a concourse of people buyers and sellers and others for a hat, or bazar or mela subject, as in the case of other user to the requirement that no nuisance is created and the legal right of others are not infringed. Consequently, the right to hold a Mela has always been 393 considered in this country to be an interest in land, an interest which the owner of the land can transfer to another along with the land or without the land. There can be no doubt therefore that the right of the proprietor of an estate to hold a Mela on his own land is a right in the "estate, being appurtenant to his ownership of the land; so also the right of a tenureholder, who it has to be remembered is the owner of the land subject only to the payment of rent to the proprietor, to hold a mela on land forming part of the tenure. It is true that a licence to hold a Mela on another 's land in which no interest is transferred is not an interest in land; but there is no question here of the acquisition of any licence to hold a Mela at another person 's land. The argument that the impugned law was not a law for acquisition of a right in the "estate" because the right to hold a mela was not a right in the land must therefore be rejected. Lastly, it was contended that long before the date of the amending Act the "estates" had ceased to exist as a consequence of the notifications issued under section 3 of the Parent Act and consequently whatever was being acquired in 1959 could not be a right in an "estate". Here also we have to take note of the fact that the impugned provisions of the Amending Act were made retrospective with effect from the date of the original enactment so that we have to project ourselves to September 25, 1950, the date of the original enactment, and consider whether on that date the law provided for acquisition of a right in an "estate". Undoubtedly the "estates" did exist on that date and so the acquisition retrospectively provided for from that date was acquisition of a right in an estate. Even if we ignore the fact that the impugned provisions of the Amending Act were given retrospective effect there is no warrant for saying that what was being acquired was not a right in an "estate". "Estate" was defined in the Bihar Tenancy Act to mean "any land included under one entry in any of the general registers of revenue paying lands and revenue free lands, prepared and maintained under the law for the time being in force by the Collector of 394 a District". It is not disputed before us that in spite of the fact that in consequence of notifications under section 3 of the Act the "estates" had become vested in the State, these registers continued to be maintained at least up to the date of the Amending Act and even later. The position therefore is that the "estates" have become vested in the State but have still not ceased to be "estates". We have therefore come to the conclusion that the impugned provisions of the Amending Act is a law providing for the acquisition by the State of rights in an "estate" ". within the meaning of article 31A of the Constitution and consequently even if we assume that they are inconsistent with or take away or abridge any of the rights conferred by articles 14, 19 and 31 they are not void on that ground. The conclusion cannot therefore be escaped that the ex intermediaries have not and the State has the right to hold melas on the Bakasht lands of which they have be. come occupancy raiyats under the provisions of section 6. We therefore allow the appeals by the State and set aside the order of the High Court for the issue of writs and order that the applications under article 226 made before the High Court be dismissed. We also dismiss the two petitions under article 32 of the Constitution filed in this Court, and also Civil Appeal No. 574 of 1960. In the circumstances of the case, we make no order as to costs. Appeals by the State allowed. C. A. No. 574 of 1960 and Petitions under article 32 dismissed.

After the estates and tenures of proprietors or tenure holders had passed to and became vested in the State by virtue of the Bihar Land Reforms Act, 1950, the Revenue Authorities interfered with the rights of those ex proprietors and ex tenureholders to hold Melas on lands which were occupied by them thereafter as occupancy raiyats and collected tolls from such Melas on behalf of the Government whereupon those intermediaries made applications to the High Court for writs restraining the Government from such interference which were allowed by the High Court. During the pendency in this Court of these appeals preferred by the Officers of the State of Bihar against the order of the High Court the Bihar Land Reforms Amendment Act, 1959, was passed amending the Bihar Land Reforms Act of 1950 with retrospective effect by which the word Mela was added after the words jalkars, hats and bazars in section 4, cl. (b) of the amended Act. Further amendments provided inter alia that the State Government and not the intermediaries except with the consent of the State Government shall have the right to hold such Melas. The main question arising for decision in these appeals and certain other applications made to this Court under article 32 of the Constitution of India was whether the amending legislation violated articles 14, 19 and 31 of the Constitution. Held, that the Bihar Land Reforms Amendment Act, 1959, is a law providing for the acquisition by the State of rights in an "estate" within the meaning of article 31A of the Constitution and even if it is assumed that it abridges the rights conferred by articles 14, 19 and 31 of the Constitution its provisions are not void on that ground. The amending legislation was within the legislative com petence of the Legislature under article 246 of the Constitution and after its amendment the legislative list permitted the State 383 Legislature to enact a law of acquisition even without a public purpose. The State of Bihar vs Sir Kameshwar Singh, [1952] S.C.R. 889, considered.

N owned agricultural lands in Bahawalpur State now forming part of Pakistan and also owned some property in Punjab in India. He died in June 1947 while on a visit to India in the normal course of business, leaving behind three sons, the respondents in the appeal. On the partition of India, the land in Pakistan originally owned by N and after his death by his sons, had to be abandoned. After migrating to India, the three respondents filed separate claims as displaced persons and were allotted an area of land in Punjab. Thereafter a complaint was filed before the Managing Officer that these respondents had received double allotments. The Managing Officer, held this allegation was not substantiated but came to the conclusion that N, although he had died before the partition, must be treated as a displaced land holder for the purpose of allotment of land as his name continued to be shown in the Jamabandi as the owner of the abandoned land in Pakistan. In consequence of this finding a large portion of the land allotted to the three respondents was cancelled by an order of the Managing Officer dated September 18, 1961. Appeals made by the respondents to the Assistant Settlement Commissioner as well as revision petitions before the Chief Settlement Commissioner Punjab, were dismissed. In dismissing the revision petitions, the Chief Settlement Commissioner relied on para. 17 of "Tarlok Singh 's Land Resettlement Manual" 1952 edition Page 180, to the effect that "Even where a displaced land holder in whose name the land stands in the records received from West Punjab has died, the allotment is made in the name of the deceased". He therefore upheld the view 4 at the land could only be allotted in the name of N. The respondents then filed a writ petition against the orders of the Chief Settlement Commissioner which was allowed. On appeal to this Court, HELD:Dismissing the appeal, The definition of a "displaced person" in para 2(e) of the Notification of July 8, 1949, issued by the Custodian in accordance with provisions of the East Punjab Evacuees (Administration of Property) Act 1947, and the Rules made thereunder, or of a "Refugee" in Section 2(d) of the East Punjab Refugees (Registration of Land Claims) Act 12 of 656 1948, show that these expressions have been used in the relevant enactments with reference to a person who has migrated to India as a result of disturbances or fear of disturbances or the partition of the country. Therefore if a person had died before the disturbances took place or he had never migrated to India as a result of the disturbances and he died before such migration, he could not come within the meaning of the expression "displaced person" or the word "refugee" under the relevant statutory enactments. N died in June, 1947, long before the partition of the country and he did not abandon or was not made to abandon his land in Bahawalpur on account of the civil disturbances or the fear of such disturbances or the partition of the country. [660 A D] There was no force in the contention that even though N never became a refugee or a displaced land holder, the allotment had to be made in his name because he was shown in the revenue records received from West Punjab as the owner of the land and there had been no mutation of the names of the respondents in the revenue records. The rule in para 17 of "Tarlok Singh 's Manual" consistently with the statutory enactments, would be applicable only to such persons who were land holders 'it the time of their becoming displaced persons or refugees and who died afterwards before allotment could be made in their favour. It does not apply to a person like N who was not a displaced land holder at the time of his death. [661 D F]

The appellant brought a suit for possession of land against respondent Birdhi Lal, under Ss. 180 and 183 of the Rajasthan Tenancy Act, 1955. The Assistant Collector, Baran, dismissed the suit, but the Revenue Appellate Authority allowed his appeal and held that Birdhi Lal was a trespasser. A further appeal by Birdhi Lal was dismissed by the Board of Revenue, Rajasthan. Thereafter, his application made under article 226 was allowed by the High Court. The High Court held Birdhi Lal to be a tenant within the meaning of section 5(43), and not a trespasser as conceived by section 5(44). On appeal by special leave, the appellants contended before this Court that the High Court was not justified in exercising appellate jurisdiction and interfering with the concurrent opinions of the Revenue authorities. It was further contended that even if Birdhi Lal was held to be a tenant. he was liable to be ejected, as the original suit had been framed alternatively under section 180 of the Act. Dismissing the appeal, the court ^ HELD: (1) The material on record does not establish that Birdhi Lal took or retained possession of the land without authority. The essential conditions for holding Birdhi Lal to be a trespasser under section 5(44) were manifestly not satisfied. The High Court was right in rectifying the error of law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue. [589F H & 590A] (2) The alternative case under section 180 required necessary averments and proof of facts which were absent in the case. The plea therefore, cannot be entertained. [590 C D]

Where at the hearing of an appeal filed by special leave from a decision of the High Court in a Writ Petition filed there under article 226 of the Constitution of India against an order of the Payment of Wages Authority, the Court considered that there was some force in the contention relating to the jurisdiction of the Authority concerned but did not decide that question on the view that as there had been no failure of justice the Court would not interfere under its powers under article 136, and the appellant applied for a review of the judgment 15 114 Held, that wide as are the powers of the Supreme Court under article 136 of the Constitution, its powers are discretionary and though special leave had been granted the Court was not bound to decide the question of jurisdiction of the inferior tribunal or court where the decision of the inferior tribunal or court had been taken to a higher tribunal which undoubtedly had jurisdiction and from the decision of which the special leave was granted if on the facts and circumstances of the case it came to the conclusion in dealing with the appeal under that Article that there was no failure of justice. A. M. Allison vs B. L. Sen, ; , relied on.

The appellant, an officer of the Forest Department challenged the provisional integrated gradation list of Forest Officers of the former Andhra and Hyderabad States published under the provisions of the States Reorganisation Act, 1947, in his writ petition, contending that (a) the inter se seniority between the appellant and the 6th respondent, both of whom originally belonged to the Andhra Cadre, had been wrongly fixed by showing the 6th respondent as senior to the appellant whereas the appellant was legally entitled to seniority over the 6th respondent, and (b) that respondent nos. 3, 4, 5, 7 and 8 officers allotted to the State of Andhra Pradesh from the Telengana region of the former Hyderabad State, had been erroneously assigned ranks above the appellant in violation of the principles laid down by the Government of India for equation of posts and fixation of inter se seniority. During the pendency of the writ petition the Central Government set right the appellant 's grievance concerning his ranking and seniority in relation to respondents 3, 4, 5, 7 and 8. When the writ petition came up for hearing the appellant pressed only his claim for seniority over the 6th respondent and as the contention was well founded, the learned Single Judge, allowed the writ petition and issued a writ of mandamus directing the Government of India to modify the gradation list by showing the appellant as senior to the 6th respondent. In the appeal to the Division Bench by the 6th respondent, the Division Bench took the view that since the prayer contained in the writ the petition was for the issue of a writ of mandamus directing respondents nos. 1 and 2 to forbear from implementing the provisional gradation list published alongwith the Government Order dated January 27, 1962 and as the appellant had not pressed the prayer for quashing of the list in so far as it related to the officers of Telengana region viz. respondents 3, 4, 5, 7 and 8, the writ petition should have been dismissed on that short ground and the question relating to the inter se seniority between the appellant and the 6th respondent ought not to have been decided. The Division Bench allowed the writ appeal, set aside the order passed by the single Judge and dismissed the writ petition. Allowing the appeal to this Court, 160 ^ HELD: In an action where a party has prayed for a larger relief it is always open to the Court to grant him any smaller relief that he may be found to be entitled to in law and thereby render substantial justice. The Court can take note of changed circumstances and suitably mould the relief to be granted to the party concerned in order to mete out justice. As far as possible the anxiety and endeavour of the Court should be to remedy an in justice when it is brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow procedural grounds. [162 G 163 A] In the instant case the writ petition contained the prayer for the quashing of the gradation list in so far as it related to the inter se ranking of the appellant vis a vis respondents nos. 3 to 8 and the appellant had also sought the issuance of a writ of mandamus directing respondents nos. 1 and 2 to forbear from implementing or acting upon the said gradation list. Subsequent to the institution of the writ petition the Central Government had refixed the ranks of respondents nos. 3, 4, 5, 7 and 8 and placed them below the appellant thereby redressing the grievance of the appellant in so far as it pertained to the ranking of the said respondents. It, therefore, became unnecessary for the appellant to pursue his claim for relief with respect to the ranks assigned to those five respondents. It was under those circumstances that the appellant submitted before the single Judge at the time of final hearing of the writ petition that he was pressing the writ petition only in so far as it related to his claim for seniority over the 6th respondent. This will not operate to preclude him from seeking a lesser relief namely the quashing of the list only in so far as it pertains to the fixation of the inter se seniority between himself and the 6th respondent. [162 B F]

C was the lessee of a plot which consisted of agricultural land as well as a homestead. The homestead was later leased to the appellants. The respondents purchased the rights of C and brought a suit against the appellants for possession of the homestead. The contention of the appellants in defence was that the suit had not been brought according to the provisions of the Bihar Tenancy Act and hence was not maintainable. The contention of the respondents was that the lease of the homestead was not an agricultural lease within the meaning of section 117 of the Transfer of Property Act and was invalid under the provisions of the latter Act. The trial court decreed the suit. The first appellate court however dismissed it. In doing so it relied on earlier rulings of the Patna and Calcutta High Courts which had held the field for over 55 years, to the effect that if the main lease is a lease for agricultural purposes all sub leases of portions of that leasehold should also be considered as agricultural leases despite the fact that a particular lease may he that of a homestead only. The High Court in further appeal departed from the view taken in the earlier cases and decided against the appellants, who came to this Court. The main question for consideration was whether the High Court was justified in departing from the settled view. HELD: The rule laid down in the earlier decisions was never departed from in the past. The Tenancy Act was amended a number of times but yet the legislature did not think it necessary to alter or modify the said rule. In law finality is of the utmost importance. Unless so required in public interest questions of law firmly 'settled by a long course of decisions should not ordinarily be disturbed and it is all the more so in the ease of an interpretation affecting property rights. [471 C E] The rule that where the terms of a statute or ordinance are clear then even a long and uniform course of judicial interpretation of it may be overruled, if it is ' contrary to the clear meaning of the enactment is inapplicable to decisions on the basis of which titles and transactions must have been rounded [477 D] Case law referred to.

The appellants belonging to the Revenue Department of Gujarat State were allocated to the Panchayat Service when the Gujarat Panchayats Act, 1961 came into force and their allocation became final under section 206A(2) of the Act. Thereafter they went on deputation as Circle Inspectors in the State service but were later reverted back to their parent cadre in the Panchayat Service. The appellants challenged their reversion before the High Court which dismissed the petition. Hence this appeal. Dismissing the appeal, this Court, HELD: 1. It is clear from section 206A(2) of the Gujarat Panchayats Act, 1961 that a Panchayat servant who is not reallocated within a period of four years from the coming into force of the Act would be deemed to be finally allocat ed to the Panchayat Service. The High Court has held that the appellants have not been able to show that they made any such options before the specified date. Even if the appel lant gave some sort of option the same having not been accepted before the expiry of specified date, the appellants stood finally allocated to the Panchayat Service. [416B C] 2. The appellants being on deputation they could be reverted to their parent cadre at any time and they do not get any right to be absorbed on the deputation post. There is no infirmity In the judgment of the High Court. [416D]

The respondent, a company incorporated in the former State of Bhopal, presented a petition in August 1960 under article 226 of the Constitution in the High Court of Madhya Pradesh for a writ restraining the State of Madhya Pradesh from enforcing the Bhopal State Agricultural Income tax Act, 1953, claiming that the Act contravened the respondent 's right under article 14 of the Constitution. By the the territory of the State of Bhopal was 847 incorporated from November 1, 1956 into the newly formed State of Madhya Pradesh. The by section 119 continued the operation of the laws in force in the territories in which they were previously in force until the competent legislature or authority amended, altered or modified these laws. Shortly after the reorganisation. the Madhya Pradesh Adaptation of Laws Order, 1956 was issued so as to make certain laws applicable uniformly to the entire State and later the Legislature by the Madhya Pradesh Extension of Laws Act, 1958 made other alterations in the laws applicable to the State. But Bhopal Act 11 of 1953 remained unamended or unaltered: nor was its operation extended to the other areas or regions in the State with the result that Agricultural Income tax was levied within the territory of the former State of Bhopal and not in the rest of the territory of the State of Madhya Pradesh. The High Court held that the provisions of Bhopal Act 11 of 1953 contravened article 14 of the Constitution and observed that though the State had removed diversity in some of the laws of the component regions, no attempt was made to remove discrimination between the territory of the former Bhopal State and the rest of the territories of the State of Madhya Pradesh with respect to this law. Held: (i) Where application of unequal laws is reasonably justified for historical reasons, a geographical classification founded on those historical reasons would be upheld. The legislature has always the power to make special laws to attain particular objects and for that purpose has authority to select or classify persons, objects or transactions upon which the law is intended to operate. Differential treatment becomes unlawful only when it is arbitrary or not supported by a rational relation with the object of the statute. Bhaiyalal Shukla vs State of Madhya Pradesh, [1962] Supp. 2 S.C.R. 257, The State of Madhya Pradesh vs The Gwalior Sugar Co., , Maharaj Kumar Prithivi Rai vs State of Rajasthan, C.A. Nos. 327 328, dated 2 11 1960 and Anand Prasad Lakshminivas Ganeriwal vs State of Andhra Pradesh, A.I.R. 1953 S.C. 853. relied on. State of Rajasthan vs Rao Manohar Singhji, [1954] S.C.R. 996, explained. (ii) It would be impossible to lay down any definite time limit within which the State had to make necessary adjustments so as to effectuate the equality clause of the Constitution. It cannot be said that because a certain number of years have elapsed or that the State has made other laws uniform, the State has acted improperly in con tinuing an impost which operates upon a class of citizens more harshly than upon others. (iii) To make out a case of denial of the equal protection of laws under article 14, a plea of differential treatment is by itself not sufficient. An applicant pleading such denial must make out that not only he 848 had been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is Unjustifiably made.

Appeals Nos. 33 and 34 of 1959. Appeal by special leave from the order dated May 29,1957, of the Central Government Ministry of Finance, New Delhi in Appeal Cases Nos. 24 and 33 of 1957. A. V. Viswanatha Sastri and Ganpat Rai, for the appellants. B. P. Maheshwari, for the respondents. M. C. Setalvad, Attorney General for India, B. B. L. Iyengar and T. M. Sen, for Union of India. April 25. The Judgment of section K. Das, Kapur, Shah and Venkatarama Ayyar, JJ., was delivered by Shah, J. Hidayatullah, J. delivered a separate Judgment. SHAH, J. M/s.Harinagar Sugar Mills Ltd. is a public limited company incorporated under the Indian Companies Act, 1913 (7 of 1913). Article 47B of the Articles of Association of the company invests the 44 342 directors of the company with absolute discretion to refuse to register any transfer of shares. That Article is in the following terms: "The directors may in their absolute discretion and without giving any reason refuse to register any transfer of any shares whether such shares be fully paid or not. If the directors refuse to register the transfer of any shares, they shall within two months, after the date on which the transfer was lodged with the company, send to the transferees and the transferor notice of the refusal. " One Banarasi Prasad Jhunjhunwala is the holder of a block of 9500 fully paid up shares of the company. In January, 1953, he executed transfers in respect of 2500 out of those shares in favour of his son Shyam Sunder and in respect of 2100 shares in favour of his daughter in law Savitadevi and lodged the transfers with the company for registration of the shares in the names of the transferees. The directors of the company by resolution dated August 1, 1953, in purported exercise of the powers under Article 47B of the Articles of Association, declined to register the shares in the names of the transferees. Petitions were then filed by Banarasi Prasad and the transferees in the High Court of Judicature at Bombay for orders under section 38 of the Indian Companies Act, 1913 for rectification of the register of the company maintaining that the refusal by the board of directors to register the transfer of the shares was "mala fide, arbitrary and capricious" and that the directors had acted with improper and ulterior motives. The High Court rejected these petitions holding that in summary proceedings under section 38, controversial questions of law and fact could not be tried and that the proper remedy of the transferees, if so advised, was to file suits for relief in the civil court. Requests were again made by the transferees to the company by letters dated February 29, 1956 to register the transfers made by Banarasi Prasad in 1953. The directors of the company in their meeting of March 15, 1956 reiterated their earlier resolution not to register the shares trans ferred in the names of the transferees. Against this 343 action of the company, appeals were preferred to the Central Government under section 111 el.(3) of the Indian , which had since been brought into operation on April 1, 1956. K. R. P. Ayyangar, Joint Secretary, Ministry of Finance, who heard the appeals declined to order registration of transfers, because in his view, the questions raised in the appeals could, as suggested by the High Court of Bombay, be decided only in a civil suit. Thereafter, Banarasi Prasad transferred a block of 100 shares to his son Shyam Sunder and another block of 100 shares to his daughter in law Savitadevi, and the transferees requested the company by letters dated November 21, 1956, to register the transfers. In the meeting dated January 12, 1957, the directors of the company resolved not to register the transfers and informed the transferees accordingly. Against this resolution, separate appeals were preferred by Shyam Sunder and Savitadevi under section 111 el.(3) of the Indian to the Central Government. It was submitted in para 4 of the petitions of appeal that the refusal to register the transfer of shares was without "any reason, arbitrary and untenable". The company filed representations submitting that the refusal was bona fide and was not "without any reason, arbitrary and untenable" as alleged. Shyam Sunder and Savitadevi filed rejoinders to the representations submitting that they had never alleged that refusal to transfer the shares "was capricious or mala fide" and that all they had alleged was that the "refusal was without any reason, arbitrary and untenable". By separate orders dated May 29, 1957, the Deputy Secretary to the Government of India, Ministry of Finance set aside the resolution passed by the board of directors in exercise of the powers conferred by sub sections(5) and (6) of section Ill of the Indian , and directed that the company do register the transfers. In so directing, the Deputy Secretary gave no reasons. Against the orders passed by the Deputy Secretary, with special leave under article 136 of the Constitution, these two appeals are preferred by the company. Two questions fall to be determined in these appeals, (1) whether the Central Government exercising appellate powers under section 111 of the before its amendment by Act 65 of 1960 is a tribunal exercising judicial functions and is subject to the appellate jurisdiction of this court under article 136 of the Constitution, and (2) whether the Central Government acted in excess of its jurisdiction or otherwise acted illegally in directing the company to register the transfer of shares in favour of Shyam Sunder and Savitadevi. Article 136 of the Constitution, by the first clause provides: "Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India". The Central Government exercising powers under section Ill of the is not a court; that is common ground. The Attorney General intervening on behalf of the Union of India submits that the Central Government merely exercises administrative authority in dealing with an appeal under section 111 of the Indian and is not required to act judicially. He submits that the authority of the directors of the company which is in terms absolute, and is not required to be exercised judicially, when exercised by the Central Government under section 111 does not become judicial, and subject to appeal to this court. But the mere fact that the directors of the company are invested with absolute discretion to refuse to register the shares will not make the jurisdiction of the appellate authority administrative. In a recent case decided by this court Shivji Nathu bhai vs The, Union of India (1), it was held that the Central Government exercising power of review under r. 54 of the Mineral Concession Rules, 1949 against an (1) ; 345 administrative order of the State Government granting a mining lease was subject to the appellate jurisdiction of this court, because the power to review was judicial and not administrative. In that case, the action of the State Government granting the mining lease was undoubtedly an administrative act, but r. 54 of the Mineral Concession Rules, 1949 granted a right of review at the instance of an aggrieved party to the Central Government, and authorised it to cancel the order of the State Government or to revise it in such manner as it deemed just and proper. The exercise of this power was held by this court to be quasi judicial. Before it was amended by section 27 of Act 65 of 1960, section III of the Indian Companies Act, 1956 omitting parts not material provided: (1) Nothing in sections 108, 109 and 110 shall prejudice any power of the company under its articles to refuse to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of, the company. (2) If, in pursuance of any such power, a company refuses to register any such transfer or transmission of right, it shall, within two months from the date on which the instrument or transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be. (3) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may, where the company is a public company or a private company which is a subsidiary of a public company, appeal to the Central Government against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in sub section (2) either to register the transfer or transmission or to send notice of its refusal to register the same. (4). . . . . . . . . (5) The Central Government shall, after causing reasonable notice to be given to the company and 346 also to the transferor and the transferee or as the case may require, to the person giving intimation of the transmission by operation of law and the previous owner, if any, and giving them a reasonable opportunity to make their representations, if any, in writing by order, direct either that the transfer or transmission shall be registered by the company or that it need not be registered by it: and in the former case, the company shall give effect to the decision forthwith. (6) The Central Government may, in its order aforesaid give such incidental and consequential directions as to the payments of costs or otherwise as it thinks fit. (7) All proceedings in appeals under sub section (3) or in relation thereto shall be confidential and no suit, pro secution or other legal proceeding shall lie in respect of any allegation made in such proceedings, whether orally or otherwise. (8) In the case of a private company which is not a subsidiary of a public company, where the right to any shares or interest of a member in, or debentures of, the company, is transmitted by a sale thereof held by a court or other public authority, the provisions of sub sections (3) to (7) shall apply as if the company were a public company: Provided that the Central Government may, in lieu of an order under sub section (5) pass an order directing the company to register the transmission of the right unless any member or members of the company specified in the order acquire the right aforesaid within such time as may be allowed for the purpose by the order, on payment to the purchaser of the price paid by him therefor or such other sum as the Central Government may determine to be a reasonable compensation for the right in all the circumstances of the case. Against the refusal by a company to register the transfer or transmission of a right to the shares, an appeal lies to the Central Government. The Government, after giving notice of the appeal and hearing the parties concerned may order that the shares be registered if it thinks that course is in the circumstances proper. The Central Government may 347 by the proviso to sub section (8) in lieu of an order under sub section (5), directing a private company to register,, transmission of shares sold by a court or public authority, order that any member or members of the company specified in the order do acquire the right on payment to the purchaser of the price paid by him, or such other sum as the Central Government determine to be reasonable compensation. In exercise of the powers under section 642, rules called "The Companies (Appeals to the Central Government) Rules, 1957" have been framed by the Central Government. By cl. (3) of the rules, the form of the petition of appeal is prescribed. Clause (4) provides that the memorandum of appeal shall be accompanied by an affidavit and documentary evidence if any in support of the statements made therein including a copy of the letter written by the appellant to the company for the purpose of registration of the shares. Clause (5) pres cribes the mode of service of notice of appeal to the company and el.(6) authorises the Central Government before considering the appeal to require the appellant or the company to produce within a specified period such further documentary or other evidence as it considers necessary. Clause (7) enables the parties to make representations if any in writing accompanied by affidavits and documentary evidence. Clause (8) authorises the Central Government after considering the representations made and after making such further enquiries as it considers necessary to pass such orders as it thinks fit under sub section(5) of section 111 of the Act. By the appendix to the rules, the form in which notice is to be given to the company is prescribed. Paragraph 2 of the form states that the company shall be called upon to make its representations in writing against, the appeal and be informed that if no representation is received, the appeal will be determined according to law. There was no provision similar to section Ill of the Indian , in the Act of 1913, nor is our attention invited to any provision in the English on which our Act is largely based, to a similar provision. Prior to 1956, if transfer of 348 shares was not registered by the directors of a company, action under the of 1913 could only be taken under section 38 of the Indian Companies Act, 1913 by petition for rectification of the share register. As we will presently point out, the power to refuse to register a transfer granted by the Articles of Association, if challenged in a petition for rectification of register was to be presumed to have been exercised reasonably, bona fide and for the benefit of the company, and unless otherwise provided by the Articles, the directors were not obliged to disclose reasons on which they acted. The power had to be exercised for the benefit of the company and bona fide, but a heavy onus lay upon those challenging the resolution of the directors to displace the presumption of bona fide exercise of the power. The discretion to refuse to register transfers was not liable to be controlled unless the directors "acted oppressively, capriciously or corruptly, or in some way mala fide" (Re Bell Brothers Ltd. ex parte Hodgson) (1). Power to refuse to register transfer of shares, without assigning any reasons, or in their absolute and uncontrolled discretion, is often found in the Articles of Association, and exercising jurisdiction under section 38 of the Indian Companies Act, 1913, the court may not draw unfavourable inferences from the refusal to disclose reasons in support of their resolution. The power given to the court under section 38 is now confirmed with slight modification by section 155 of the Indian . Under that section, the court may rectify the register of shareholders if the name of any person is without sufficient cause entered in or omitted from the register of members of a company, or default is made, or unnecessary delay has taken place in entering on the register the fact of any person having ceased to be a member. The court is in exercising this jurisdiction competent to decide any question relating to the title of the person claiming to have his name registered and generally to decide all questions which may be necessary or expedient to decide for the rectification. A person aggrieved by the refusal to (1) 349 register transfer of shares has, since the enactment of the , therefore two remedies for seeking relief under the , (1) to apply to the court for rectification of the register under section 155, and (2) to appeal against the resolution refusing to register the transfers under section 111. It is common ground that in the exercise of the power under section 155, the court has to act judicially: to adjudicate upon the right exercised by the directors in the light of the powers conferred upon them by the Articles of Association. The respondents however submit and they are supported by the Union of India that the authority of the Central Government under section Ill is nevertheless purely administrative. But in an appeal under section 111 el.(3) there is a lis or dispute between the contesting parties relating to their civil rights, and the Central Government is invested with the power to determine that dispute according to law, i.e., it has to consider and decide the proposal and the objections in the light of the evidence, and not on grounds of policy or expediency. The extent of the power which may be exercised by the Central Government is not delimited by express enactment, but the power is not on that account unrestricted. The power in appeal to order registration of transfers has to be exercised subject to the limitations similar to those imposed upon the exercise of the power of the court in a petition for that relief under section 155: the restrictions which inhere the exercise of the power of the court also apply to the exercise of the appellate power by the Central Government, i.e., the Central Government has to decide whether in exercising their power, the directors are acting oppressively, capriciously or corruptly, or in some way mala fide. The decision has manifestly to stand those objective tests, and has not merely to be founded on the subjective satisfaction of the authority deciding the question. The authority cannot proceed to decide the question posed for its determination on grounds of expediency: the statute empowers the Central Government to decide the disputes arising out of the claims made by the transferor or transferee which claim is opposed by the company, 45 350 and by rendering a decision upon the respective con tentions, the rights of the contesting parties are directly affected. Prima facie, the exercise of such authority would be judicial. It is immaterial that the statute which confers the power upon the Central Government does not expressly set out the extent of the power: but the very nature of the jurisdiction requires that it is to be exercised subject to the limitations which apply to the court under section 155. The proviso to sub section(8) of section III clearly indicates that in circumstances specified therein reasonable compensation may be awarded in lieu of the shares. This compensation which is to be reasonable has to be ascertained by the Central Government; and reasonable compensation cannot be ascertained except by the application of some objective standards of what is just having regard to all the circumstances of the case. In The Province of Bombay vs Kusaldas section Advani(1), this court considered the distinction between decisions quasi judicial and administrative or ministerial for the purpose of ascertaining whether they are subject to the jurisdiction to issue a writ of certiorari. Fazl Ali, J. at p. 642 observed: "The word "decision" in common parlance is more or less a neutral expression and it can be used with reference to purely executive acts as well as judicial orders. The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference, and the real test is: Is there any duty to decide judicially?" The court also approved of the following test suggested in The King vs London County Council (2) by Scrutton L.J.: "It is not necessary that it should be a court in the sense in which this court is a court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a court; if it is a tribunal which has to (1) T. (2) , 233.351 decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari. " In The Bharat Bank Ltd., Delhi vs Employees of the Bharat Bank Ltd., Delhi (1), the question whether an adjudication by an industrial tribunal functioning under the Industrial Disputes Act was subject to the jurisdiction of this court under article 136 of the Constitution fell to be determined:, Mahajan J. in that case observed: "There can be no doubt that varieties of administrative tribunals and domestic tribunals are known to exist in this country as well as in other countries of the world but the real question to decide in each case is as to the extent of judicial power of the State exercised by them. Tribunals which do not derive authority from the sovereign power cannot fall within the ambit of article 136. The condition precedent for bringing a tribunal within the ambit of article 136 is that it should be constituted by the State. Again a tribunal would be outside the ambit of article 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties. Tribunals however which are found invested with certain functions of a Court of Justice and have some of its trappings also would fall within the ambit of article 136 and would be subject to the appellate control of this Court whenever it is found necessary to exercise that control in the interests of justice. " It was also observed by Fazl Ali J. at p. 463 that a body which is required to act judicially and which exercises judicial power of the State does not cease to be one exercising judicial or quasi judicial functions merely because it is not expressly required to be guided by any recognised substantive law in deciding the disputes which come before it. The authority of the Central Government entertaining an appeal under section 111(3) being an alternative remedy to an aggrieved party to a petition under section 155 the investiture of authority is in the exercise of the judicial power of the State. Clause (7) of section III (1) ; 352 declares the proceedings in appeal to be confidential, but that does not dispense with a judicial approach to the evidence. Under section 54 of the Indian Income tax Act, (which is analogous) all particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of the Act or in any evidence given, or affidavit or deposition made, in the course of any proceedings under the Act are to be treated as confidential; but that does not make the decision of the taxing authorities merely executive. As the dispute between the parties relates to the civil rights and the Act provides for a right of appeal and makes detailed provisions about hearing and disposal according to law, it is impossible to avoid the inference that a duty is imposed upon the Central Government in deciding the appeal to act judicially. The Attorney General contended that even if the Central Government was required by the provisions of the Act and the rules to act judicially, the Central Government still not being a tribunal, this court has no power to entertain an appeal against its order or decision. But the proceedings before the Central Government have all the trappings of a judicial tribunal. Pleadings have to be filed, evidence in support of the case of each party has to be furnished and the disputes have to be decided according to law after con sidering the representations made by the parties. If it be granted that the Central Government exercises judicial power of the State to adjudicate upon rights of the parties in civil matters when there is a lis between the contesting parties, the conclusion is inevitable that it acts as a tribunal and not as an executive body. We therefore over rule the preliminary objection raised on behalf of the Union of India and by the respondents as to the maintainability of the appeals. The Memorandum and Articles of Association of a company when registered bind the company and the members of the company to the same extent as if they respectively had been signed by the company and each member, and contained covenants on its and 353 his part to observe all the provisions of the Memorandum and of the Articles. Clause 47B of the Articles of Association which invests the director with discretion to refuse to register shares is therefore an incident of the contract binding upon the transferor, and registration of transfer or transmission cannot therefore be insisted upon as a matter of right. The conditions subject to which a party can maintain a petition for an order for rectification of the register of shareholders have been settled by a long course of decisions. Two of those may be noticed. In In re Gresham Life Assurance Society Ex parte Penney (1), the deed of settlement of a life insurance company provided that any shareholder shall be at liberty to transfer his shares to any other person who was already a shareholder, or who should be approved by the board of directors, and that no person not being already a shareholder or the executor of a shareholder, should be entitled to become the transferee of any share unless approved by the board. One J. R. De Paiva who was the holder of ten shares of the company sold them to W. J. Penney and lodged the transfer with the shares for registration at the company 's office. The directors in exercise of the powers conferred upon them by the deed of settlement refused to register the shares. In a joint summons taken out by Paiva and Penney under section 35 of the Companies Act, 1862, the Master of the Rolls directed the transfer to be registered, the directors of the company having failed to submit any reasonable ground or objection to the purchaser. In the view of the Master of the Rolls, it was for the court to judge whether the objection was reasonable and that objection must be disclosed to the court. Against this order, the company approached the Court of Appeal. James L. J. in dealing with the contention raised by the appellant observed that the directors were in a fiduciary position both towards the company and towards every shareholder and that it was easy to conceive of cases in which the court may interfere with any violation of the fiduciary duty so (1) (1872) Law Rep. 8 Ch. 354 reposed in the directors. It was observed by James L. J.: "But in order to interfere upon that ground it must be made out that the directors have been acting from some improper motive, or arbitrarily and capriciously. That must be alleged and proved, and the person who has a right to allege and prove it is the shareholder who seeks to be removed from the list of shareholders and to substitute another person for himself . this Court would have jurisdiction to deal with it as a corrupt breach of trust; but if there is no such corrupt or arbitrary conduct as between the directors and the person who is seeking to transfer his shares, it does not appear to me that this court has any jurisdiction whatever to sit as a Court of Appeal from the deliberate decision of the board of directors, to whom, by the constitution of the company, the question of determining the eligibility or non eligibility of new members is committed. If the directors had been minded, and the Court was satisfied that they were minded, whether they expressed it or not, positively to prevent a shareholder from parting with his shares, unless upon complying with some condition which they chose to impose, the Court would probably, in exercise of its duty as between the cestui que trust and the trustees, interfere to redress the mischief, either by compelling the transfer or giving damages, or in some mode or other to redress the mischief which the shareholder would have had a just right to complain of. " It was also observed by James L.J.: " I am of opinion that we cannot sit as a Court of Appeal from the conclusion which the directors have arrived at if we are satisfied that the directors have done that which alone they could be compelled by mandamus to do, to take the matter into their consideration". Mellish L.J. observed: "But it is further contended that in order to secure the existing shareholder against being deprived of the right to sell his shares, the directors are 355 bound to give their reason why they reject the transferee, and if they reject him without giving a reason that is a ground from which the Court ought to infer that they were acting arbitrarily. I cannot agree with that. It appears to me that it is very important that directors should be able to exercise the power in a perfectly uncontrollable manner for the benefit of the shareholders; but it is impossible that they could fairly and properly exercise it if they were compelled to give the reason why they rejected a particular individual. I am therefore of opinion that in order to preserve to the company the right which is given by the articles a shareholder is not to be put upon the register if the board of directors do not assent to him, and it is absolutely necessary that they should not be bound to give their reasons although I perfectly agree that if it can be shown affirmatively that they are exercising their power capriciously and wantonly, that may be a ground for the Court interfering". A similar view was also expressed in In re, Smith and Fawcett Ltd. (1) where the Court of Appeal held that where the directors of the company had uncontrolled and absolute discretion to refuse to register any transfer of shares, while such powers are of a fiduciary nature and must be, exercised in the interest of the company, the petition for registration of transfer should be dismissed unless there is something to show that they had been otherwise exercised. Rectification of the register under section 155 can therefore be granted only if the transferor establishes that the directors had, in refusing to register the shares in the names of a transferee, acted oppressively, capriciously or corruptly, or in some way mala fide and not in the interest of the company. Such a plea has, in a petition for rectification, to be expressly raised and affirmatively proved by evidence. Normally, the court would presume that where the directors have refused to register the transfer of shares when they have been invested with absolute discretion to refuse registration, that the exercise of the power was bona fide. When (1) 356 the new Companies Act was enacted, it was well settled that the discretionary power conferred by the articles of association to refuse to register would be presumed to be properly exercised and it was for the aggrieved transferor to show affirmatively that it had been exercised mala fide and not in the interest of the company. Before the Committee appointed by the Government of India under the Chairmanship of Mr. C. H. Bhabha representation was made by several bodies that this power which was intended to be exercised for the benefit of the company was being misused and the Committee with a view to afford some reasonable safeguards against such misuse of the power recommended that a right of appeal should be provided against refusal to register transfer of shares. The Legislature, it appears, ,accepted this suggestion and provided a right of appeal. But the power to entertain the appeal is not unrestricted: being an alternative to the right to approach the civil court, it must be subject to the same limitations which are implicit in the exercise of the power by the civil court under section 155. The Central Government may therefore exercise the power to order that the transfer which the directors have in their discretion refused, be registered if it is satisfied that the exercise of the discretion is mala fide, arbitrary or capricious and that it is in the interest of the company that the transfer should be registered. Relying upon el.(7) of section 111 which provided that the proceedings in appeals under sub section(3) or in relation thereto shall be confidential, it was urged that the authority hearing the appeal is not obliged to set out reasons in support of its conclusion and it must be assumed that in disposing of the appeal, the authority acted properly and directed registration of shares. But the provision that the proceedings are to be treated as confidential is made with a view to facilitate a free disclosure of evidence before the Central Government which disclosure may not, in the light of publicity which attaches to proceedings in the ordinary courts, be possible in a petition under section 155 of the 357 Companies Act. The mere fact that the proceedings are to be treated as confidential does not dispense with a judicial approach nor does it obviate the disclosure of sufficient grounds and evidence in support of the order. In the present case, the position is somewhat un satisfactory. The directors passed a resolution declining to register the shares and informed the transferor and the transferees of that resolution. The transferees in their petition stated that the refusal to register transfer was without any reason, arbitrary and untenable and in the grounds of appeal they stated that they did not know of any reasons in sup port of the refusal and reserved liberty to reply thereto if any such reasons were given. The company in reply merely asserted that the refusal was not without any reason or arbitrary or untenable. The transferees in their rejoinder made a curious statement of which it is difficult to appreciate the import that they had "nowhere stated in the memoranda of appeals that the refusal to transfer shares was capricious or mala fide" and all that they "had stated was that the refusal was without any reason, arbitrary or untenable". The Deputy Secretary who decided the appeals chose to give no reasons in support of his orders. There is nothing on the record to show that he was satisfied that the action of the directors in refusing to register the shares "was arbitrary and untenable" as alleged. If the Central Government acts as a tribunal exercising judicial powers and the exercise of that power is subject to the jurisdiction of this court under article 136 of the Constitution, we fail to see how the power of this court can be effectively exercised if reasons are not given by the Central Government in support of its order. In the petition under section 38 of the Indian Companies Act, 1913, the Bombay High Court declined to order rectification on a summary proceeding and relegated the parties to a suit and a similar order was passed by the Joint Secretary, Ministry of Finance. These proceedings were brought to the notice of the Deputy Secretary who heard the appeals. Whether 46 358 in spite of the opinion recorded by the High Court and by the Joint Secretary, Ministry of Finance in respect of another block out of shares previously attempted to be transferred, there were adequate grounds for directing registration, is a matter on which we are unable to express any opinion. All the documents which were produced before the Deputy Secretary are not printed in the record before us and we were told at the bar that there were several other documents which the Deputy Secretary took into con sideration. In the absence of anything to show that the Central Government exercised its restricted power in hearing an appeal under section 111(3) and passed the orders under appeal in the light of the restrictions imposed by article 47B of the articles of association and in the interest of the company, we are unable to decide whether the Central Government did not transgress the limits of their power. We are however of the view that there has been no proper trial of the appeals, no reasons having been given in support of the orders by the Deputy Secretary who heard the appeals. In the circumstances, we quash the orders passed by the Central Government and direct that the appeals be re heard and disposed of according to law. Costs of these appeals will be costs in the appeals before the Central Government. HIDAYATULLAH, J. I have had the advantage of reading the judgment just delivered by my brother, Shah, J. In view of the strong objection to the competence of the appeals under article 136 by the respondents, to whom liberty was reserved by the order granting special leave, I have found it necessary to express my views. The facts have been stated in detail by my learned brother, and I shall not repeat them in full. Very shortly stated, the facts are that the second respondent, Banarsi Prasad Jhunjhunwala, transferred 2500 shares to his son, and 2100 shares to his daughter in law, in the appellant Company in 1953. The appellant Company declined to register these transfers. Proceedings for rectification of the Register under section 38 of the Indian Companies Act, 1913, followed 359 in the High Court of Bombay, but the High Court referred the disputants to the Civil Court. In the petition before the High Court, the respondents had charged the Directors of the appellant Company with bad faith and arbitrary dealing. The respondents renewed their requests for registration, but they were again declined, and appeals were filed before the Central, Government under section 111(3) of the , which had come into force from April 1, 1956. These appeals were heard by Mr. K. R. P. Aiyengar, Joint Secretary, Ministry of Finance, who dismissed them, holding that only a suit was the appropriate remedy. Banarsidas Prasad then made a fresh transfer of 100 shares each to his son and daughter in law, and requests for registration of these shares were made. The appellant Company again declined to register the shares, but gave no reaons. Under cl. 47 B of the Articles of Association of the appellant Company, it is provided: "The Directors may in their absolute discretion and without giving any reason refuse to register any transfer of any shares whether such shares be fully paid or not. If the Directors refuse to register the transfer of any shares, they shall, within two months after the date on which the transfer was lodged with the company, send to the trans feree and the transferor notice of the refusal. " The appellant Company was prima facie within its rights when it did not state any reasons for declining to register the shares in question. Appeals were again taken to the Central Government under section 111(3). It was alleged that the refusal to register the shares without giving any reasons was "arbitrary and untenable". In accordance with the provisions of the section, representations were filed by the appellant Company and rejoinders by the opposite party. The transferees made it clear that they did not charge the appellant Company with "capricious or mala flee conduct" but only with arbitrary any reasons. The appeals 360 succeeded, and the shares were ordered to be registered. The Deputy Secretary, who heard and decided the appeals, gave no reasons for his decision. Against his order, the present appeals have been filed with special leave. The preliminary objection is that the appeals are incompetent, because the Central Government, which heard them, is not a tribunal muchless a Court, and the action of the Central Government is purely administrative. It is, therefore, submitted that article 136 does not apply, because special leave can only be granted in respect of a determination by a Court or a tribunal, which the Central Government is not. This is not the only provision of law, under which the Central or State Governments have been empowered to hear appeals, revisions or reviews, and it is thus necessary to find out the exact status of the Central Government when it hears and decides appeals, etc., for the application of article 136. Article 136(1) reads as follows: "Notwithstanding anything in this Chapter, the Supreme Court may in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India. " The orders which the Central Government passes, certainly fall within the words "determination" and "order". The proceeding before the Central Government also falls within the wide words "any cause or matter". The only question is whether the Central Government, when it hears and decides an appeal, can be said to be acting as a Court or tribunal. That the Central Government is not a Court was assumed at the hearing. But to ascertain what falls within the expression "Court or tribunal", one has to begin with "Courts". The word "Court" is not defined in the . It is not defined in the Civil Procedure Code. The definition in the Indian Evidence Act is not exhaustive, and is for the purposes of that Act. In the Now English Dictionary (Vol. II, pp. 1090, 1091), the meaning given is: 361 "an assembly of judges or other persons legally appointed and acting as a tribunal to hear and determine any cause, civil, ecclesiastical, military or naval. " All tribunals are not Courts, though all Courts are tribunals. The word "Courts" is used to designate those tribunals which are set up in an organised State for the administration of justice. By administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed. Judicial power, according to Griffith, C. J. in Huddart, Parker & Co. Proprietary Ltd. vs Moorehead (1) means: "the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. " When rights are infringed or invaded, the aggrieved party can go and commence a querela before the ordinary Civil Courts. These Courts which are instrumentalities of Government, are invested with the judicial power of the State, and their authority is derived from the Constitution or some Act of legislature constituting them. Their number is ordinarily fixed and they are ordinarily permanent, and can try any suit or cause within their jurisdiction. Their numbers may be increased or decreased, but they are almost always permanent and go under the compendious name of "Courts of Civil Judicature". There can thus be no doubt that the Central Government does not come within this class. With the growth of civilisation and the problems of modern life, a large number of administrative tribunals have come into existence. These tribunals have the authority of law to pronounce upon valuable (1) ; , 357.362 rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary Courts of Civil Judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to Courts, but are not Courts. When the Constitution speaks of 'Courts ' in article 136, 227 or 228 or in Art,% 233 to 237 or in the Lists, it contemplates Courts of Civil Judicature but not tribunals other than such Courts. This is the reason for using both the expressions in articles 136 and 227. By "Courts" is meant Courts of Civil Judicature and by "tribunals", those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary Courts of Civil Judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been success fully established. Lord Stamp said that the real distinction is that Courts have "an air of detachment". But this is more a matter of age and tradition and is not of the essence. Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test insufficient. Lord Sankey, L.C. in Shell Company of Australia vs Federal Commissioner of Taxation (1) observed: "The authorities are clear to show that there are tribunals with many of the trappings of a Court, which, nevertheless, are not Courts in the strict sense of exercising judicial power. In that connection it may be useful to enumerate some negative propositions on this subject: 1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision. Nor because it hears (1) [1931] A.C.275.363 witnesses on oath. 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 vs Electricity Commissioners In my opinion, a Court in 'the strict sense is a tribunal which is a part of the ordinary hierarchy of Courts of Civil Judicature maintained by the State under its constitution to exercise the judicial power of the State. These Courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction. The word "judicial", be it noted, is itself capable of two meanings. They were admirably stated by Lopes, L.J. in Royal Aquarium and Summer and Winter Garden Society vs Parkinson (2), in these words: "The word 'judicial ' has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind that is, a mind to determine what is fair and just in respect of the matters under con sideration. " That an officer is required to decide matters before him "judicially" in the second sense does not make him a Court or even a tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest. Courts and tribunals act "judicially" in both senses, and in the term "Court" are included the ordinary and permanent tribunals and in the term "tribunal" are included all others, which are not so included. Now, the matter would have been simple, if the had designated a person or persons whether by name or by office for the purpose of hearing an appeal under section 111. It would then have been clear that though such person or persons were not "Courts" in the sense explained, they were clearly (1) (2) , 452, 364 "tribunals". The Act says that an appeal shall lie to the Central Government. We are, therefore, faced with the question whether the Central Government can be said to be a tribunal. Reliance is placed upon a recent decision of this Court in Shivji Nathubai vs The Union of India (1), where it was held that the Central Government in exercising power of review under the Mineral Concession Rules, 1949, was subject to the appellate jurisdiction conferred by article 136. In that case which came to this Court on appeal from the High Court 's order under article 226, it was held on the authority of Province of Bombay vs Kushaldas section Advani (1) and Rex vs Electricity Commissioners (3) that the action of the Central Government was quasi judicial and not administrative. It was then observed: "It is in the circumstances apparent that as soon as r. 52 gives a right to an aggrieved party to apply for review a lis is created between him and the party in whose favour the grant has been made. Unless therefore there is anything in the statute to the contrary it will be the duty of the authority to act judicially and its decision would be a quasi judicial act. " This observation only establishes that the decision is a quasi judicial one, but it does not say that the Central Government can be regarded as a tribunal. In my opinion, these are very different matters, and now that the question has been raised, it should be decided. The function that the Central Government performs under the Act and the Rules is to hear an appeal against the action of the Directors. For that purpose, a memorandum of appeal setting out the grounds has to be filed, and the Company, on notice, is required to make representations, if any, and so also the other side, and both sides are allowed to tender evidence to support their representations. The Central Government by its order then directs that the shares be registered or need not be registered. The Central Government is also empowered to include in its orders, directions as to payment of costs or otherwise. The (1) ; (2) ; (3) 365 function of the Central Government is curial and not executive. There is provision for a hearing and a decision on evidence, and that is indubitably a curial function. Now, in its functions Government often reaches decisions, but all decisions of Government cannot be regarded as those of a tribunal. Resolutions of Government may affect rights of parties, and yet, they may not be in the exercise of judicial power. Resolutions of Government may be amenable to writs under articles 32 and 226 in appropriate cases, but may not be subject to a direct appeal under article 136 as the decisions of a tribunal. The position, however, changes when Government embarks upon curial functions, and proceeds to exercise judicial power and decide disputes. In these circumstances, it is legitimate to regard the officer who deals with the matter and even Government itself as a tribunal. The officer who decides, may even be anonymous; but the decision is one of a tribunal, whether expressed in his name or in the name of ' the Central Government. The word "tribunal" is a word of wide import, and the words "Court" and "tribunal" embrace within them the exercise of judicial power in all its forms. The decision of Government thus falls within the powers of this Court under article 136. It is next argued by the learned Attorney General that there is no law to interpret or to apply in these cases. He argues that since there are no legal standards for judging the correctness or otherwise of the order of the Central Government and the decision being purely discretionary, it is neither judicial nor quasi judicial but merely administrative, and that no appeal can arise from the nature of things. Such a line was taken before the Committee on Ministers ' Powers by Lord Hewart, and the argument reminds one of what he then said that such decisions are purely discretionary and the exercise of such arbitrary power is "neither law nor justice or at all". Sir Maurice Gwyer also was of the opinion that an appeal could not be taken to Court against a Minister 's 47 366 decision even on the ground of miscarriage of justice, because that, in his opinion, was "putting a duty on the Court" which was "not the concern of the Court". This argument takes me to the heart of the controversy, and before I give my decision, I wish to say a few preliminary things. Article 47 B gives to the Directors a right to refuse to register shares in their absolute discretion, without giving reasons. In In re Gresham Life Assurance Society, Ex Parte Penney James, L.J. observed: "No doubt the directors are in a fiduciary position both towards the company and towards every shareholder in it. It is very easy to conceive cases such as those cases to which we have been referred, in which this Court would interfere with any violation of the fiduciary duty so reposed in the directors. But in order to interfere upon that ground it must be made out that the directors have been acting from some improper motive, or arbitrarily and capriciously. That must be alleged and proved, and the person who has a right to allege and prove it is the shareholder who seeks to be removed from the list of shareholders and to substitute another person for himself. But if it is said that wherever any shareholder has proposed to transfer his shares to some new member, the Court has a right to say to the directors, 'We will presume that your motives are arbitrary and capricious, or that your conduct is corrupt, unless you choose to tell us what your reasons were, and submit those reasons to our decision ', it would appear to me entirely altering the whole constitution of the company as provided by the articles." That shows that the Directors are presumed to have acted honestly in the interests of the company and a case has to be made out against them. I shall only quote from another case, which summarises the position very aptly. In In re Hannan 's King (Browning) Gold Mining Company (Limited) (2), Lindley, M.R. is reported to have decided the case thus: "Their Lordships did not sit there as a Court of (1) (1872) Law Rep. 8 Ch.(2) , 367 honour; the question was whether the applicants had made out that the transferee was being improperly kept off the register. There was no evidence of that . The Court ought, as a matter of honesty between man to man., to presume that the directors were acting within their powers unless the contrary was proved; but that was not proved by casting unfounded aspersions upon them." Thus, the matter comes to this that the Directors have a presumption in their favour and the opposite party must prove that there was want of good faith. The right of appeal which is given under the , allows the Central Government to judge this issue. For that purpose, parties are required, if they desire, to make representations and to put in evidence. But to enable the parties to have a free say, the proceedings are made confidential by law, and there is protection against action, both civil and criminal. The appeal is disposed of on the basis of the representations and the evidence. A decision of a tribunal on a dispute inter partes, in the light of pleadings and evidence, is essentially a judicial one, and this Court ought to be able, on the same material, to decide in an appeal whether the decision given was correct. If no substantive law is applicable, there are questions of evidence, of burden and adequacy of proof and of the application of the principles of justice, equity and good conscience to guide the Court. Once it is held that the decision is that of a tribunal and subject to appeal, it is manifest that an appeal may lie, unless there be some other reason. The difficulty which arises in these cases is whether it was not the intention of the law that the decision of the Central Government was to be final. The law makes all allegations and counter allegations confidential. If Courts cannot compel disclosure of these allegations and the veil of secrecy drawn by law is not rent, then it appears to me that a further appeal can hardly be efficacious. In this view, in my opinion, this Court should not grant special leave in such cases. The situation which arises is not very different from what arose before the Judicial Committee in Moses vs 368 Parker, Ex Parte Moses (1). The headnote adequately gives the facts, and may be quoted: "By Tasmanian Act No. 10 of 1858, section 5, disputes concerning lands yet ungranted by the Crown are referred to the Supreme Court, whose decision is to be final; and by section 8 the Court is directed to be guided by equity and good conscience only, and by the best evidence procurable, even if not required or admissible in ordinary cases, and not to be bound by strict rules of law or equity or by any legal forms: Held: that the Crown 's prerogative to grant special leave to appeal is inapplicable to a decision so authorised." In dealing with the case, Lord Hobhouse observed at p. 248: "The Supreme Court has rightly observed that Her Majesty 's prerogative is not taken away by the Act of 1858, but intimates a doubt whether it ever came into existence. Their Lordships think that this doubt is well founded. They cannot look upon the decision of the Supreme Court as a judicial decision admitting of appeal. The Court has been substituted for the commissioners to report to the governor. The difference is that their report is to be binding on him. Probably it was thought that the status and training of the judges made them the most proper depositaries of that power. But that does not make their action a judicial action in the sense that it can be tested and altered by appeal. It is no more judicial than was the action of the commissioners and the governor. The Court is to be guided by equity and good conscience and the best evidence. So were the commissioners. So every public officer ought to be. But they are expressly exonerated from all rules of law and equity, and all legal forms. How then can the propriety of their decision be tested on appeal? What are the canons by which this Board is to be guided in advising Her Majesty whether the Supreme Court is right or wrong? It seems almost (1) 369 impossible that decisions can be varied except by reference to some rule; whereas the Court making them is free from rules. If appeals were allowed, the certain result would be to establish some system of rules; and that is the very thing from which the Tasmanian Legislature has desired to leave the Supreme Court free and unfettered in each case. If it were clear that appeals ought to be allowed, such difficulties would doubtless be met somehow. But there are strong arguments to show that the matter is not of an appealable nature." See also The ' berge vs Laudry (1). The exercise of the powers under article 136 is a counterpart of the royal prerogative to hear appeals in any cause or matter decided by Courts or tribunals. But where the Articles of Association of a company give absolute discretion to the Directors and empower them to withhold their reasons, the appeal taken to the Central Government would involve decision on such material, which the parties place before it. If the allegations are made confidential by law and the Central Government in giving its decision cannot make them public, it is manifest that the decision, to borrow Lord Hobhouse 's language, "is not of an appealable nature". Whether the right to hear appeals generally against decisions of the Central Government acting as a tribunal be within article 136, in my opinion and I say it with great respect special leave to appeal should not be granted in such cases, unless this Court is able to rend the veil of secrecy cast by the law without rending the law itself. The argument is that the allegations are confidential only so far as the public are concerned but not confidential where Courts are concerned. The question is not that but one of practice of this Court. This Court should intervene only when practicable, and that can only arise if the parties agree not to treat the allegations as confidential. That, however, does not end the present appeals. Special leave has been granted, and I have held that the appeals are competent, even though such cases (1) 370 often may not be fit for appeal. In this case, there is no claim that any allegation was confidential. In fact, the appellants before the Central Government made it clear that they did not charge the Directors with "capricious or mala fide conduct" but only with arbitrary refusal, without stating any reasons. The appellant Company in its representation set out the history of previous refusals and the decisions of the High Court of Bombay and the Central Government, and made it clear that the action was taken in the interest of the Company. There are indications in the representation to show that on the previous occasion when these claimants were referred by the High Court and by Mr. K. R. P. Aiyengar, Joint Secretary, to the Civil Court, they did not go to Court to establish that the action was mala fide and capricious. Before the Central Government, they dropped that allegation, and confined the case to one of refusal without giving any reasons, and that was the plain issue before the Central Government. There was no evidence for the Central Government to consider, and the Articles of Association give the Directors an absolute discretion to refuse to register shares without giving any reasons, and, on the authorities quoted earlier, the Directors must be presumed to have acted honestly. There was thus no reason for the Central Government to reverse the decision of the Directors, and the fact that no reasons have been given when nothing was confidential, leads to the only inference that there was none to give. In my opinion, these appeals must succeed. I would, therefore, set aside the order of the Central Government, and allow the appeals with costs here and before the Central Government, if an order to that effect was passed by the Central Government. Before parting with the case, I may say that the Report of the Amendment Committee had recommended amendment of section 111, and it has been amended, inter alia, by the addition of sub section (5A), which reads: "Before making an order under sub section (5) on an appeal against any refusal of the company to 371 register any transfer or transmission, the Central Government may require the company to disclose to it the reasons for such refusal, and on the failure or refusal of the company to disclose such reasons, that Government may, notwithstanding anything contained in the articles of the company, presume that the disclosure, if made, would be unfavourable to the company." That would stop the blind man 's buff under the unamended law! By COURT. In view of the majority judgment of the Court, we quash the orders passed by the Central Government and direct that the appeals be reheard and disposed of according to law. Costs of these appeals will be costs in the appeals before the Central Government.

One B who held a large number of shares in the appellant company, transferred two blocks of 100 shares each to his son and daughter in law. The transferees applied to the company to register the transfers. Purporting to act under article 47B of the Articles of Association of the company the directors of the company resolved not to register the transfers. Against this resolution the transferees preferred appeals to the Central Government under section III(3) of the . The Central Government, without giving any reasons for its decision, set aside the resolution of the directors and directed the company to register the transfers. The company obtained special leave to appeal against the decision of the Central Government under article 136 of the Constitution and appealed to the Supreme Court on the ground that the Central Government acted in excess of its jurisdiction or otherwise acted illegally in directing the company to register the transfers. The respondents raised a preliminary objection that the Central Government exercising appellate powers under section III of the Act (before its amendment in 1960) was not a tribunal exercising judicial functions and was not subject to the appellate jurisdiction of the Supreme Court under article 136. Held, that the appeal was competent to the Supreme Court by special leave against the decision of the Central Government under section III (3) Of the . The Central Government, when exercising powers under section III was a tribunal within the meaning of article 136 and was required to act judicially. A person aggrieved by the refusal to register transfer of shares had two remedies under the Act, viz., (1) to apply to the court for rectification of the register under section 155 or (2) to prefer an appeal under section III. The power of the Court under section 155, which has necessarily to be exercised judicially, and the power of the Central Government under section III have to be exercised subject to the same restrictions. In both cases it has to be 340 decided whether the directors have acted oppressively, capriciously corruptly or malafide. The decision has manifestly to stand those objective tests and has not merely to be founded on the subjective satisfaction of the authority. In an appeal under section III(3) there is a lis or dispute between the contesting parties relating to their civil rights, and the Central Government has to determine the dispute according to law in the light of the evidence and not on grounds of policy or expediency. There was thus a duty imposed on the Central Government to act judicially. The proviso to sub section (8) of section III which provided for the award of reasonable compensation in lieu of the shares in certain circumstances also fortifies that view. Shivji Nathubhai vs The Union of India, ; , Re Bell Brothers Ltd. Ex Parte Hodgson, , The Province of Bombay vs Kusaldas section Advani, [1950] S.C.R. 621, The King vs London County Council, and The Bharat Bank Ltd., Delhi vs Employees of the Bharat Bank Ltd., Delhi, ; , referred to. In an appeal under section 111(3) of the Act the Central Govern ment has to determine whether the exercise of the discretion by the directors refusing to register the transfer is malafide, arbitrary or capricious and whether it is in the interest of the company. The decision of the Central Government is subject to appeal to the Supreme Court under article 136; the Supreme Court cannot effectively exercise its power if the Central Government gives no reasons in support of its order. The mere fact that the proceedings before the Central Government are to be treated as confidential does not dispense with a judicial approach, nor does it obviate the disclosure of sufficient grounds and evidence in support of the order. In the present case no reasons have been given in Support of the orders and the appeals have to be remanded to the Central Government for rehearing. In re Gresham Life Assurance Society, Ex Parte Penney, (1 872) Law Rep. 8 Ch. 446 and In re Smith and Fawcett, Ltd., L. R. , referred to. Per Hidayatullah, J. The appeal to the Supreme Court under article 136 was competent. The Act and the Rules showed that the function of the Central Government under section 11(3) was curial and not executive; there was provision for filing a memorandum of appeal setting out the grounds, for the company making representations against the appeal, for tendering evidence and award of costs. There was provision for a hearing and a decision on evidence. The Central Government acted as a tribunal within the meaning of article 136. Huddart, Parker & Co. Pyoprietar Ltd. vs Moorehead, (108) ; , Shell Company of Australia vs Federal Commissioner of Taxation, , Rex vs Electricity Commissioners, Royal Aquarium and Summer and Winter Garden 341 Society vs Parkinson, , Shivji Nathubai vs The Union of India; , and Province of Bombay vs Kushaldas section Advani, ; , referred to. But special leave should not ordinarily be granted in such cases. The directors were not required to give reasons for their decision and there was a presumption that they had acted properly and in the interest of the company. In the appeal under section 111 of the Act all allegations and counter allegations were confidential and the Central Government could not make them public in its decision. An appeal against such a decision could rarely be effective. In the present case the appeal under section III(3) was confined to the ground that the refusal to register was without giving any reasons; there was no question of confidential allegations and there was no evidence to consider. The Articles of Association gave the directors absolute discretion to refuse to register the transfers without giving any reasons and there was a presumption that the directors had acted honestly. There was thus no reason for the Central Government to reverse the decision of the directors. In re Gresham Life Assurance Society; Ex Parte Penney, (1872) Law Rep. 8 Ch. 446, In re Hannan 's King (Browning) Gold Mining Company Limited, and Moses vs Parkar Ex parte Moses, , referred to.

Each of these appeals by special leave was directed against the award made by the Labour Court. The appellant in Civil Appeal No. 5415 of 1985, a foreman in the Mechanical Construction Division under the Irrigation Department, had filed an application under Section 33C 2 of the ( 'the ') before the Labour Court for the recovery of arrears of annual increments. The appellant in Civil Appeal No. 2168 of 1987 was a T. Mate in the P.W.D. Drainage Division. When his services were terminated without complying with the requirements of the law, he challenged the termination before the Labour Court. The appellant in the remaining appeal was an operator in the Mechanical Division, under the Irrigation Department of Haryana State. His services were terminated and thereupon he approached the Labour Court challenging the order of termination. In each of these cases, challenge was advanced by the Governmental authority to the maintainability of the application before the Labour Court on the ground that the employer was not an 'industry ' and the did not apply. The Labour Court upheld the objection and declined relief to the appellants. Allowing the appeals with observations, the Court, ^ HELD: The common question in these appeals was whether the Irrigation Department was an 'industry '. The definition of 'industry ' is given in Section 2(j) of the . By Section 2(c) of the Amending (46 of 1982) this definition had been amended but the amendment has not 617 yet been brought into force. Since the amended statutory definition was not yet in force, the parent definition and the judicial pronouncements thereon had to be referred to for finding the law. The field is covered by pronouncements of this Court and is not necessary to go beyond the precedents such as decisions in D.N. Banerji vs P.R. Mukherjee & Ors., ; ; State of Bombay and Ors. vs The Hospital Mazdoor Sabha & Ors ; ; Corporation of the City of Nagpur vs Its Employees, ; ; Management of Safdarjang Hospital vs Kuldip Singh Sethi, ; ; and the decision of a seven Judge Bench in Bangalore Water Supply and Sewerage Board vs A. Rajappa & Ors., ; [621F G] In case the Irrigation Department was accepted to be an "industry", there was no dispute that each of the appellants would be a 'workman ' and each of the claims would constitute an "industrial dispute" as defined in Section 2(s) and (k) of the , respectively . [621G] Judicial notice could be taken of the position that Haryana and Punjab originally constituted one State and Haryana became separate from 1966. The Irrigation Department of the erstwhile Punjab State was discharging the State 's obligations created under the . The Administration Report of the year 1981 82 of the Public Works Department, Irrigation Branch, which really deals with the Irrigation Department, was produced before the Court. [634B C] Counsel for the appellants placed before the Court some cases of different High Courts in support of his stand that the Irrigation Department should be considered as an industry, i.e. Madhya Pradesh Irrigation Karamchari Sangh vs State of Madhya Pradesh & Anr., ; State of Rajasthan vs The Industrial Tribunal, Rajasthan, ; Dinesh Sharma & Ors. vs State of Bihar & Ors. , [1983] Bihar L.J.R. 207 and Chief Engineer, Irrigations Orissa vs Harihar Patra & Anr., [638E F] On the tests, as already laid down in the judgments, the Court did not think the facts found in this case could take the Irrigation Department outside the purview of the definition of 'Industry '. The main functions of the Irrigation Department where subjected to the Dominant Nature test evolved by Krishna Iyer J. in Bangalore Water Supply and Sewerage Board vs A. Rajappa & Ors., ; , decided by a seven Judges Bench, clearly come within the ambit of industry. 618 Perhaps keeping in view the observations of the learned Judges of the seven Judges Bench, the definition of industry as occurring in section 2(j) of the was amended by 46 of 1982. However, the Court could not gather as to why even six years after the amendment to the definition of industry in section 2(j) of the came on the statute book, the same had not been brought into force. The court on more than one occasion had indicated that the position should be clarified by an appropriate amendment, and, when keeping in view the opinion of this Court, the law was sought to be amended, it was appropriate that the same should be brought into force as such or with such further alterations as might be considered necessary and the legislative view of the matter, made known and the confusion in the field, cleared up. Bare Acts and Commentaries on the had brought in the new definition, deleting the old one with a note that the new provision had yet to come into force. This situation had further added to the confusion. [639F H; 640A B] The appeals succeeded. It was made clear that in the event of the definition of industry being changed either by enforcement of the new definition of industry or by any other legislative change, it would always be open to the aggrieved Irrigation Department to raise the issue again and the present decision would not stand in the way of such an attempt in view of the altered situation. [640B C] D.N. Banerji vs P.R. Mukherjee & Ors., ; ; State of Bombay & Ors. vs The Hospital Mazdoor Sabha & Ors., ; Corporation of the City of Nagpur vs Its Employees, ; ; Management of Safdarjang Hospital vs Kuldip Singh Sethi, ; ; Bangalore Water Supply and Sewerage Board vs A. Rajappa & Ors. , ; ; om Prakash vs M/s Executive Engineer, SYL, Kurukshetra & Ors. [1984] Current L.J. 349; State of Punjab vs Kuldip Singh & Anr., ; Madhya Pradesh Irrigation Karamchari Sangh vs State of Madhya Pradesh & Anr., ; State of Rajasthan vs The Industrial Tribunal, Rajasthan, ; Dinesh Sharrna & Ors. vs State of Bihar & Ors. , [1983] Bihar L.J.R. 207 and Chief Engineer, lrrigation, Orissa vs Harihar Patra & Anr., , referred to.

Respondent No. 1 acquired tenancy rights in five plots in the villages of Biknaur and Samahuta situated in the area known as Lower Murli Hill in District Shahabad, Bihar. In 1949 he filed a plaint in the Court of the Subordinate Judge Sasaram, against the State of Bihar and others, claiming inter alia that as a tenant he had a customary right to quarry limestone for trade purposes from the Lower Murli Hill. The claim was based mainly on certain entries in the Custom sheets prepared at the time of the Cadastral Survey in 1913 under section 102 of the Bihar Tenancy Act, 1885. The trial court rejected the claim but the High Court held the custom to be established by the evidence of the Customs sheets. The defendants appealed. Held The High Court was in error in holding that the plain tiff had established the custom pleaded by him or that it was reasonable. (i) There was nothing to show that the practices and privileges recorded in the Custom Sheets were exercised as a matter of right. The record has presumptive value. But the revenue authorities were concerned to ascertain the existing state of affairs and not to determine whether the practices and privileges were ancient, certain, reasonable and continuous. As evidence of local custom, the custom sheets had therefore not much value. On the other hand there were indications that the exercise of the privileges recorded therein was permissive. Even on the most liberal interpretation they did not provide evidence of the exercise of the privilege of commercial exploitation of limestone from the area in question. [317D; 319G] (ii) Even granting that the Custom sheets recorded a local custom that the tenants in the villages of Baknaur and Samahuta excavated stones from the hills near the villages for purposes of trade, a claim of right founded on that custom must be held unreasonable and incapable of enforcement by the sanction of a court 's verdict, [320B] A claim in the nature of a profit a prendre operating in favour of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid custom. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality. To the extent to which it is inconsistent with the general law undoubtedly the custom prevails. But to be valid a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. A right in the nature of a profit a prendre in the exercise of which the residents of a locality are entitled to excavate stone for trade purposes would ex facie 313 314 be unreasonable, because the exercise of such a right ordinarily tends to the complete destruction of the subject matter of the profit. The custom, if exercised in its amplitude as claimed, may also lead to breaches of the peace, for it would be open to all tenants to work any quarry simultaneously for trade purposes. [321B D; 324D] Lord Rivers vs Adams, L.R.3 exhibit Div. 361, Harris & Anr. vs Earl of Chesterfield and Anr. , , Alfred F. Beckett Ltd. vs Lyons , referred to Lutchhmeeput Singh vs Sadaulla Nushyo & Ors., I.L.R. 9 Cal. 698 and Arjun Kaibarta vs Manoranjan De Bhoumick, I.L.R. , approved. Henry Goodman vs The Mayor and Free Burgesses of the Borough of Saltash. 7 A.C. 633 and Mercer vs Denne, , 557 distinguished.

The Managing Agents of the appellant company withdrew certain sums of money from its a count with the respondent (1) Mad. 871. (2) Lah. (3) (4) I.L.R. (5) (6) Pat. 106 (7) (1953) I.L.R. K. All. 64. (8) Pat. 653 Bank, which the company had by a resolution authorised the Managing Agents to operate on. The Managing Agents had no other account with the said Bank. The company brought the suit, out of which the present appeal arises, against the Bank for recovery of the said amounts on the ground that the cheques issued by the Managing Agents had been wrongfully honoured by the Bank in that they were signed by them without describing themselves as Directors of the Managing Agents firm and on behalf of the company, as required by the resolution. The trial judge decreed the suit except with regard to a part of the claim which he found to have actually been received by the company. The appeal court dismissed the suit holding that the Bank had paid in good faith and that the company was not entitled to rely on section 89 of the Indian Companies Act. Held, that the court of appeal was right in holding that section 89 of the Indian Companies Act could not be invoked by the appellant in the present case. There can be no doubt that before a negotiable instrument can be enforced against a company under section 89 of the Indian Companies Act, it must on the face of it show that it was drawn, made, accepted or endorsed by the company, and this may be done either by showing the name of the company itself on the instrument, or by statement of the person making the instrument that he was doing so on behalf of the company. Sadasuk janki Das vs Sir Kishan Pershad, Cal. 663, applied. The Bank of Bombay vs H. R. Cormack, Born, 275 and Miles ' claim, , referred to. But the said principle is applicable only to the claim made against a company on a negotiable instrument and cannot be extended to a dispute between a bank and its constituent where the claim is not so based and proceeds on the basis that in honouring the cheques wrongfully drawn the bank acted improperly. Mahony vs East Holiford Mining Co., (1875) 7 Eng. & Irish Reports 869, referred to. Held, further, that the object of the resolution as well as its effect was merely to conform to the requirements of section 89 of the Indian Companies Act, 1913, and not to prescribe any condition precedent independently of that section.

The appellant was a shareholder of a company known as Mafatlal Gagalbhai and Co., Ltd. The Company with its registered office at Bombay was at all material times resident in British India. It was also doing business in the former Baroda State and used to keep its profits derived in that State with Mafatlal Gagalbhai Investment Corporation, Navsari. In the year 1949 Mafatlal Gagalbhai and Co. Ltd. declared dividends out of profits which had accrued partly in British India and partly in the Indian State. The appellant was assessed to income tax on the dividends earned by her. She did not bring those dividends into British India and claimed the benefit of para. 4 of the Merged States (Taxation Concessions) Order. The Tribunal held that the income did not accrue to the appellant in the Baroda State but it did not decide the question whether she was entitled to the benefits of the Taxation Concessions Order. The High Court on a reference to it held that para. 4 of the Taxation Concessions Order. did not apply to the assessee but it did not decide the other question as to where the income had accrued to the assessee. On appeal by special leave the appellant contended, inter alia, that since the Tribunal had not gone into the question of the applicability to the assessee of the Concessions Order and had not expressed any opinion thereon, the High Court could not raise the question on its own and decide it: Held, that the High Court exceeded its jurisdiction in going outside the point of law decided by the Tribunal and deciding a different point of law. 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. New Jehangir Vakil Mills Ltd. vs Commissioner of Income tax, , Scindia Steam Navigation Co. Ltd. vs Commissioner of Income tax, , Commissioner of Incometax vs Breach Candy Swimming Bath Trust, and Ismailia Grain Merchants Association vs Commissioner of Incometax, [1957] 31 I.T.R. 433, distinguished. Mash Trading Co. vs Commissioner of Income tax, , considered.

The appellant, a company, set up a fertilizer factory at Kota in Rajasthan. The factory manufactures urea for which the main raw material is Naptha, which has to be transported from the Koyali Refinery of the Indian oil Corporation. Before the actual setting up of the factory, the appellant requested the Railway Board by letter for a concessional frieght rate for the carriage of Naptha to the factory. The Railway Board by its letter EX 5 dated November 5, 1966, quoted station to station rate equal to 85 B (special) as against the rate equivalent to classification 62.5 B requested for by the appellant, and also stated that as the special rate was being quoted ahead of the actual setting up of the factory, the frieght rate would be reviewed when the traffic actually began to move. When the factory was almost ready for operation, the appellant again requested the Railway Board by letter for charging the rate under classification 62 5 B instead of 85 B (special) quoted by it. The Railway Board refused to oblige. The appellant wrote another letter to the Board, requesting it to permit charging the rate equivalent to 85 B (special) pending its final decision, as the movement of naptha was to commence from June/July, 1968. The Railway Board refused to grant that request also, saying that it could reconsider the question if on the basis of the facts and figures of the cost of production vis a vis the sale price of the fertilizers, it could be established that the production of the fertilisers at Kota was uneconomical unless freight concession on the movement of naptha was granted. The appellant filed a complaint under section 41(1)(a) and (b) of the Railways Act, 1890, before the Railway Rates Tribunal. The Tri 384 bunal decided against the appellant. Aggrieved, the appellant appealed to this Court by special leave for relief against the order and judgment of the Tribunal. Dismissing the appeal, the Court ^ HELD: Three questions arise for consideration of the Court: (1) whether the Railway Board was bound to allow the concessional rate offered to the appellant, that is, 85 B (special) quoted in its letter exhibit C 5 dt. November 5, 1966, to the appellant, (2) whether the rate charged for the carriage of the naptha between the stations concerned was unreasonable, and (3) whether the Railways were showing undue preference or advantage in respect of other traffic in contravention of the provisions of section 28 of the Railways Act. [389E F ] Dealing with the third question first, which relates to the contravention of section 28 of the Railways Act, the scope of the section was considered by this Court in Rajgarh Jute Mills Ltd vs Eastern Railway and another; , at 241, and the Railway Rates Tribunal, considering the material on record in the light of the decision of the Court in case, held that there was no evidence produced by the appellant to justify any grievance under section 28. This conclusions is perfectly justified. [390E; 391C] The second question above said relates to the rate charged by the Railway Administration being per se unreasonable. Even assuming, as argued by appellant 's counsel, that the Railways are earning some surplus income, that by itself is no ground to hold that the frieght charged is per se unreasonable. In the case of commodities of national needs such as foodgrains, crude oil etc., it may be necessary for the Railways to charge below the operation cost, and to offset the loss, the Railways may charge higher freight for some other classified commodities. The cost of operation cannot by itself be the basis for judging the reasonableness of the rate charged. Counsel for the appellant also argued that crude oil and naptha were comparable commodities for the purpose of carriage but there was disparity in the rates charged in respect of the two, naptha being charged at a much higher rate. The Tribunal rejected the demand of the appellant for parity in frieghts, and the Court cannot interfere with the finding to the Tribunal in this appeal under Article 136 of the Constitution. On merits also, there is no justification to demand that neptha should take the same freight rate as that of the crude oil. [391D, F H; 392B. D E] 385 Lastly, the first question: It relates to the correctness of the view taken by the Tribunal on doctrine of promissory estoppel consequent upon the letter exhibit 5 of the Railway Board. The Tribunal rejected this claim of the appellant. Considering the conclusion of the Tribunal on this question, it appears the Tribunal has not correctly understood the doctrine of promissory estoppel: The party asserting the estoppel must have relied and acted upon the assurance given to him. It means the party has changed or altered the position by relying on the assurance or representation. The alteration of position by the party is the only indispensable requirement of the doctrine. It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel. "A promise intended to be binding, intended to be acted upon, and in fact acted upon, is binding", said Lord Denning, sitting as a trial judge in Central London Properties Ltd vs High trees House Ltd., If the promisee has acted upon the promise, the promisor is precluded from receding from his promise. The concept of detriment as it is understood now is whether it appears unjust, unreasonable or inequitable that the promisor should be allowed to resile from his assurance or representation, having regard to what the promisee has done or refrained from doing in reliance on the assurance or representation. It is, however quite fundamental that the doctrine of promissory estoppel cannot be used to compel the public bodies or The Government to carry out the representation or promise which is contrary to law or which is outside their authority or power. Secondly, the estoppel stems from equitable doctrine. it requires that he who seeks equity must do equity. The doctrine, therefore, cannot also be invoked if it is found to be inequitable or unjust in its enforcement. or the purpose of invoking the doctrine, it is not necessary for the appellant to show that the insurance contained in exhibit (I S was mainly responsible for the establishing of the factory at Kota. There may be several representation to one party from different authorities in regard to different matters. Or there may be several representations from the same party in regard to different matters; In the instant case, there was one representation by the Rajasthan government to supply power to the appellant 's factory at concessional rate. There is another representation from the same government to exempt the appellant from payment of tax for a certain period. If those representations have been relied upon by the appellant, the Court would compel the authorities to adhere to their representations. What is required is the fact that the appellant was induced to act on the representations. The assurance given by the Railway Board in the letter exhibit S was not clear and unqualified. it was subject to review to be undertaken 386 when the appellant started moving the raw material. Accordingly, A appellant was put to notice that it has to approach the Railway administration again when it would review the whole matter. From the tenor of exhibit 5, the railways are entitled to say that they have reviewed the matter and found no justification for a concessional frieght rate for naptha; that does not amount to resiling from the earlier assurance. No question of estoppel arises in favour of the appellant in the case out of the representation made in Ex 5. The Court agreed with the conclusion of the Tribunal but not for all the reasons stated. Rajgarh Jute Mills Ltd vs Eastern Railway & Anr, at 241; Central London Properties Ltd vs High Trees House Ltd, ; Central Newbury Car Auctions Ltd vs Unity Finance Ltd, at 909; Article "Recent Development in the Doctrine of Consideration" Modern Law Review, Vol. , Grundt vs The Great Boulder Ptv Gold, Mines Ltd, ; ; Mohlal Padampet Sugar Mills Co Ltd vs State of UP and ors; , at 695= ; ; Union of India and ors vs Godfrey Philips Ltd, ; [1985] Supp. 3 SCR 123 and Halsbury 's Laws of England 4th Edn., Vol. , para 1595, referred to.

The appellants contended that the Forward Market Commis sion under the Forward Contract (Regulation) Act 1952 cannot impose conditions under sections 14A and 14B on the commodities in respect of which business can be carried out by persons who apply for registration. Secondly, the provisions. contained in section 4 of the Act do not confer power on the Commission to impose conditions. Thirdly, in respect of recognised associations, the Commission had no power to impose conditions with regard to commodities in which they deal. Dismissing the appeal, HELD: All the 3 conditions raised in the present appeal are covered against the appellant by the decision of this Court in the case of Union India vs M/s Rajdhani Grain and Jaggery Exchange Ltd. reported in [1975], Supp, SCR 1. [605 B F]

At the sale held by the Official Liquidator under the orders of the Bombay High Court, the appellant a public limited company, purchased the "Hirji Textile Mills" minus its goodwill and its workmen who were discharged earlier. The appellant invested some fresh capital in the business, renovated the machinery and employed workmen on fresh contracts which included 70% of the workmen formerly working in that factory and commenced to produce certain never types of things at the factory w.e.f. November 12, 1955, after obtaining a new licence to run it. When by the end of February, 1956 the Regional Provident Fund Commissioner made certain enquiries about the working of the factory in order to enforce the provisions Provident Fund Act against the appellant, the appellant wrote to him stating that The factory was an infant factory having been established on November 12,1955 and the period of three years had not elapsed from that date within the meaning of Section 16(1) (b) of the Act. When the Regional Provident Fund Commissioner was not convinced about its explanation, the appellant first filed a writ petition under Article 226 of the Constitution before High Court of Bombay in Miscellaneous Application No. 76 of 1957 challenging the applicability of the Act to the factory and after withdrawing it, filed Short Cause Suit No. 2088 of 1958 before the City Civil Court at Bombay for a declaration that the Act and the scheme framed thereunder could not be enforced against the factory until the expiry of three years from November 12, 1955 and that the appellant was not liable to make any contributions under the Act. The trial Court dismissed the suit holding, that in view of the several facts established in the case it could not be presumed that a new factory was established by the 517 appellant on November 12, 1955, that the continuity of the old factory had A not been broken and as such the appellant was liable to make contributions under the Act. The judgment of the trial Court was affirmed by the Bombay High Court in Appeal No.406/64. Hence the appeal by special leave. Dismissing the appeal, the Court, ^ HELD: 1.1. Every statute should be construed so as to advance the object with which it is passed and as far as possible, avoiding any construction which would facilitate evasion of the Act. [521 C] 1.2. In consonance with the directions enshrined in Article 43 of the Constitution, Employees ' Provident Fund Scheme is intended to encourage the habit of thrift amongst the employees and to make available to them either at the time of their retirement or earlier, if necessary, substantial amounts for their use from out of the provident fund amount standing to their credit which is made up of the contributions made by the employers as well as the employees concerned. The Act being a beneficent statue and section 16 of the Act being a clause granting exemption to the employer from the liability to make contributions, section 16 should receive a strict construction [521A B, 522A] 2.1. The criterion for earning exemption under section 16(1)(b) of the Act is that a period of three years has not yet elapsed from the date of establishment of the factory in question. It has no reference to the date on which the employer who is liable to make contributions acquired title to the factory which once established may be interrupted on account of factory holidays, strikes, lock outs, temporary breakdown of machinery, periodic repairs to be effected to the machinery in the factory, non availability of raw materials, paucity of finance etc., and also on account of an order of court as in the present case. Interruptions in the running of factory which is governed by the Act brought about by any of these reasons without more cannot be construed as resulting in the factory ceasing to the factory governed by the Act and on its restarting it cannot be said that a new factory is or has been established. On the resumption of the manufacturing work in the factory it would continue to be governed by the Act which does not state that any kind of stoppage in the working of the factory would give rise to a fresh period of exemption. In other words the period of three years should be counted from the date on which the factory was first established and the fact that there had been a change in the owners p makes no difference to the counting of period. [522A D, 524D E] Lakshmi Rattan Engineering Work vs Regional Provident Fund Commissioner, Punjab & Ors. SC, reiterated. Chaganlal Textile Mills Pvt. Ltd. Y.P.A. Bhaskar Misc. Appln. No. 289 of 1956 disposed of on November 5, 1956: M/s. Bharat Board Mills Ltd. vs The Regional Provident Fund Commissioner & Ors. Vegetable Products Ltd. vs Regional Provident Fund Commissioner W. Bengal & Ors. ; Jamnadas Agarwala & Anr. vs The Regional Provident Fund Commissioner West Bengal & Ors. ; 518 Robindra Textile Mills vs Secretary Ministry of Labour Govt. of India New Delhi & Anr A.I.R. 1936 Punjab 55. Hindustan Electric Co. Ltd. vs Regional Provident Fund Commissioner Punjub & Anr. A I.R 1959 Punjab 27 Regional Provident Fund Commissioner Punjab & Anr. v Lakshmi Rattan Engineering Works Ltd M/s. R.L. Sahni & Co vs Union of India represented by the Regional Provident Commissioner Madras & Anr. A.l.R. ; Kunnath Textile vs Regional Provident Fund Commisioner ; The New Ahmedabad v Bansidar Mills Pvt Ltd. Ahmedabad vs Union of India & Ors. A I R. 1968 Gujarat 71; approved. Provident Fund Inspector Trivendrum vs Secretary N.S. section Co operative Society Changanacherry ; Vithaldas Jagnnathdas & Anr. vs The Regional Provident Fund Commissioner Madras & Anr. ; distinguished.

minal Appeal No. 146 of 1959. Appeal by special leave from the judgment and order dated January 5, 1959, of the Punjab High Court in Criminal Appeal No. 238 of 1958. J. N. Kaushal and Naunit Lal, for the appellant. B. K. Khanna, R. H. Dhebar and D. Gupta, for respondent. April 26. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is against the judgment of the Punjab High Court dismissing the appellant 's appeal and confirming his conviction under section 302 and section 307 read with section 149, Indian Penal Code. The case for the prosecution was that the appellant and twelve other persons who were tried with him, had, on account of a dispute about the possession of a plot of land, assaulted Darshan, deceased, and his companions, when they were returning from their fields and that Darshan Singh and his companions also struck the appellant 's party in self defence. In the incident, Darshan and Nand Lal received injuries on the one side while Daya Ram, Hamela and Kartar Singh the appellant, received injuries on the appellant 's side. Darshan Singh died on account of the injuries received. Daya Ram stated that when be, Kartar Singh, Hamela and a few other persons were going near about their field, Darshan, Nand Lal and others, who happened to be sitting on a well, challenged them and Nand Lal remarked that he would not let him (Daya Ram) escape. At this fight ensued between both the parties in which injuries were inflicted on each, other. Daya Ram said that he did not know who speared Darshan, deceased. 397 Kartar Singh stated that a member of Nand Lal 's party caused a spear blow in his abdomen and that he then ran away. He states that he did not cause any injury to anybody. Hamela stated that Darshan and others assaulted his party when they were going to plough the land in dispute and that they caused them, injuries in selfdefence. The learned Sessions Judge, after noting the allegations of the parties and the admitted facts about the dispute with respect to the plot of land, said: "It is also not denied that the parties in this case instead of taking resort to law wanted to force the issue by the force of arms and for that purpose both the parties collected number of persons from Seel and other villages who were armed with deadly weapons such as spears, gandasis and sticks and in order to decide the issue had a pitched fight which was pre concerted. The Public Prosecutor therefore maintained that under these circumstances the question of right of self defence to any party does not arise. " The learned Sessions Judge also said: "This proposition of law has not been challenged by the defence. As observed above, in this case, both the parties, in order to assert their rights, had a free fight which was pre concerted with the set purpose of forcing the issue mentioned above. " He further said: "The only point therefore which requires determination in this case is whether all or only some of the accused did participate in this assault," and came to the conclusion that three accused, viz., Daya Ram, Hamela and Kartar Singh, who had admitted their presence in the incident and had received injuries, were proved to have taken part in that free fight, and that the participation of the other ten accused in the case was not established beyond doubt. He, however, said: "Although I feel that Daya Ram, Hamela and Kartara accused were accompanied by at least 9 or 51 398 10 persons, but it is difficult to say who those 9 or 10 persons were." He therefore acquitted those ten persons giving them the benefit of doubt. The three convicted persons preferred an appeal to the High Court. Two questions were urged at the hearing. One was that when there was no evidence that there were more than five persons in the fight on the side of the appellants, the learned Sessions Judge could not, in law, record a conviction under section 302 read with section 149, he having acquitted the other ten persons specifically named by the P. Ws., as being the companions of the appellants. The other point was that the other party was the aggressor. The High Court, on the first point, said. : "The circumstances of this case leave no manner of doubt in our mind that there were a large number of persons on the side of the appellants and this number must have exceeded five, and was more or less near the number of persons who were actually accused in the case. " On the second point, it said: "We have no manner of doubt in our mind that there is no question of right of private defence and it is a clear case of a free fight between both the parties. It would not therefore be of any importance as to who gave the first lalkara and who started the fight. " It further held that the appellant 's party formed an unlawful assembly and its common object was to cause injuries to the opposite side which could result in the ordinary course of nature in death and, consequently, the conviction of the three appellants, whose participation could not be doubted, under sections 302 and 307 read with section 149, Indian Penal Code, was well based and must be upheld. Two points have been urged in this Court: (i) When ten out of the thirteen persons charged with the offence have been acquitted, the remaining three persons cannot constitute an unlawful assembly; (ii) in a case of free fight, each participant is liable for his own 399 individual act and as the appellant is not proved to have actually caused any injury to Darshan or Nand Lal, he could not be convicted of the offences under sections 302 and 307. If the Courts below could legally find that the actual number of members in the appellant 's party were more than five, the appellant 's party will constitute an unlawful assembly even when only three persons have been convicted. It is only when the number of the alleged assailants is definite and all of them are named, and the number of persons found to be proved to have taken part in the incident is less than five, that it cannot be held that the assailants ' party must have consisted of five or more persons. The acquittal of the remaining named persons must mean that they were not in the incident. The fact that they were named, excludes the possibility of other persons to be in the appellant 's party and especially when there be no occasion to think that the witnesses naming all the accused could have committed mistakes in recognizing them. This is clear from the observations in Dalip Singh vs State of Punjab (1) of this Court: "Now mistaken identity has never been suggest ed. The accused are ail men of the same village and the eye witnesses know them by name. The murder took place in daylight and within a few feet of the two eye witnesses. " The same cannot be said in this case. The witnesses are from village Seel. A good number of the accused are from other villages. Only Nand Lal and Chetan Singh, P. Ws. 22 and 23, named all the thirteen accused. The other prosecution witnesses, viz., Prem Singh, P.W. 15, Puran, P. W. 16, Jethu, P. W. 17 and Norata, P. W. 18, did not name all the thirteen accused. None of them named more than seven accused and all of them said that there were thirteen persons in the appellant 's party. In this state of evidence, it is not possible to say that the Courts below could not have come to the conclusion that there were more than five persons in the appellant 's party. (1) [1954].C.R. 145,150. 400 It follows therefore that the finding of the Courts below that the appellant 's party formed an unlawful assembly and that the appellant is constructively liable for the offences under section 302 and section 307, Indian Penal Code, in view of section 149, is correct. The second contention that in a free fight each is liable for an individual act cannot be accepted in view of the decision of this Court in Gore Lal vs State of U. P. (1). This Court said in that case "In any event, on the finding of the Court of first instance and of the High Court that both the parties had prepared themselves for a free fight and had armed themselves for that purpose, the question as to who attacks and who defends is wholly immaterial," and confirmed the conviction under section 307 read with section 149, Indian Penal Code. It may, however, be noted that it does not appear to have been urged in that case that each appellant could be convicted for the individual act committed by him. When it is held that the appellant 's party was prepared for a fight and to have had no right of private defence, it must follow that their intention to fight and cause injuries to the other party amounted to their having a common object to commit an offence and therefore constituted them into an unlawful assembly. The injuries they caused to the other party are caused in furtherance of their common object. There is then no good reason why they be not held liable, constructively, for the acts of the other persons of the unlawful assembly in circumstances which makes section 149, Indian Penal Code, applicable to them. Even if the finding that there were more than five persons in the appellant 's party be wrong, we are of opinion that the facts found that the appellant and his companions who were convicted had gone from the village armed and determined to fight, amply justified the conclusion that they had the common intention to attack the other party and to cause such injuries which may result in death. Darshan had two incised wounds and one punctured wound. Nand Lal (1) Criminal Appeal No. 29 of 1950, decided on December 15, 1960. 401 had two incised wounds and one punctured wound and two abrasions. The mere fact that Kartar Singh was not connected with the dispute about the plot of land is not sufficient to hold that he could not have formed a common intention with the others, when he went with them armed. The conviction under section 302 and section 307 read with section 149 can be converted into one under section 302 and section 307 read with section 34, Indian Penal Code. We therefore see no force in this appeal and accordingly dismiss it. Appeal dismissed.

The appellant was tried along with two others under sections 302 and 307 read with section 149 of the Indian Penal Code. The prosecution case against them was that they along with ten others had taken part in a free fight resulting in the death of one belonging to the other side. The Sessions judge held that the accused were accompanied by nine or ten others but that it was not proved who they were. He, therefore, gave them the benefit of the doubt and acquitted them. The High Court on appeal affirmed that decision. It was urged on behalf of the appellant in this Court that (1) the offence of unlawful assembly had not been made out and (2) that in a free fight each participant is liable for his own act and the conviction of the appellant, who had caused no injury to the deceased, was untenable under sections 302 and 307 of the Indian Penal Code. Held, that the contentions must fail. It is only when the number of the alleged assailants is definite and all of them are named and the number of persons proved to have taken part in the incident is less than five that it can be said that there was no unlawful assembly. The acquittal of the remaining named persons must mean that they were not in the incident. The fact that they were named, excludes the possibility of other persons to be in the appellant 's party and especially when there can be no occasion to think that the witnesses naming all the accused could have committed mistakes in recognising them. Since this was not the position in the instant case, it could not be said that the courts below were wrong in holding that there was unlawful assembly. Dalip Singh vs State of Punjab, ; , referred to. It is not correct to say that in a premeditated free fight each is liable for his individual act. Where the accused party prepare for a free fight and can, therefore, have no right of private defence, their intention to fight and cause injuries to the other party amounts to a common object so as to constitute unlawful assembly. Gore Lal vs State of U. P., Cr. A. No. 129 of 1959 dated 15 12 1960, referred to. 396 Even assuming that in the instant case the finding that there were more than five persons in the appeLlant 's party was wrong, the conviction of the appellant would be maintainable under section 302 and section 307 read with section 34 of the Indian Penal Code.

The appellants were charged with offences under section 143/402, 186 and 353, Indian Penal Code for having obstructed and assaulted two public servant in the discharge of their public duty of executing the decree of a Civil Court. They were acquitted by the trial Court, but on appeal, the High Court convicted them under section 353, acquitted them under sections 143/402 and held that the prosecution under section 186 was barred by a. 195, Criminal Procedure Code, which requires a complaint in writing by the public servant before a court could take cognizance of the offence. In appeal to this Court, it was contended that the prosecution under section 353, Indian Penal Code, was also barred by section 195 Criminal Procedure Code. HELD : Sections 186 and 353, Indian Penal Code, relate to two distinct offences and section 353 is not referred to in section 195 Cr. P.C. Section 195, Criminal Procedure Code, does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts, but which is not within the ambit of that section, when there is no camouflage or evasion to circumvent the Section. Therefore the trial of the appellants for the distinct offence under section 353 was not barred though it was based practically on the same facts as for the prosecution under section 186, and the High Court was justified, on the evidence, in interfering with the order of acquittal passed by the trial Court in regard to that charge. [640 E, G; 641 E] Sanwat Singh vs State of Rajasthan ; and Agarwal and Kulkarni vs State of Maharashtra, ; , followed. Basir ul Huk V. State of West Bengal ; and Hori Ram Singh vs The Crown, , referred to.

The appellant No.1 Maharani was married to a Maharaja in 1960 and the daughter appellant no.2 was born of the wedlock in 1964. The relationship between the husband and the wife thereafter ceased to be cordial and the appellant started living in Bombay and the Maharaja within his estate in Madhya Pradesh. It is the case of the respondent No.1 that the Maharaja decided to remarry without legally separating from the appellant. The respondent who is a relation of the Maharaja 's mother, respondent No.2,was misled both by the Maharaja and his mother, respondent No.2 was misled both by the Maharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under that belief she married the Maharaja had been dissolved and under that belief she married the Maharaja and several issues were born of this wedlock. In 1974 when the Maharaja died, on application for grant of Letters of Administration was filed by the appellant Maharani, and the respondent No.1 applied for probate on the basis of an alleged will. This will was denied by the appellants. These proceedings are still pending. Respondent No.1 filed an application under Section 11 of the for declaring her marriage as nullity, and the Maharaja 's mother was impleaded as the sole respondent. The appellants intervened and were impleaded as parties. The maintainability of the aforesaid application was challenged by the appellants on the ground that the marriage could not be declared 194 a nullity after the death of the Maharaja but both the trial court and the High Court have rejected this plea. In the appeal to this Court it was contended on behalf of the appellants that having regard to the very special relationship between husband and wife,a marriage cannot be dissolved or declared to be a nullity unless both of them are parties thereto. The martial status of a person sands on a much higher footing than other positions one may hold in the society and cannot be allowed to be challenged lightly,and that the marriage of a person, therefore, cannot be declared as nullity after his death when he does no have an opportunity to contest. Reliance was placed upon the language of Section 11 of the . On behalf of the respondent, it was pointed out that having regard to the language of Section 16 of the as it it stood before its amendment in 1976,he children born of the respondent would not have been entitled to the benefit of the section in absence of a decree declaring the marriage of their parents as nullity, and this was precisely the reason that the respondent had to commence the present litigation On the question: whether a petition under Section 11 of the for declaring the marriage of the petitioner as a nullity is maintainable after the death of the petitioner 's spouse. Dismissing the appeal, this Court, HELD: 1 .An application under Section11 of the before its amendment in 1976, was maintainable at the instance of a party to the marriage even after the death of the other spouse.[201B]. In the instant case, the proceeding was started in 1974 that is, before the amendment was made in the Hindu Marriage Act,1955. Section II did not contain the words "against the other party". At that time all that was required was that the application had to be filed by a party to the marriage under challenge. On the plain language of the section as it stood then,it could not be claimed that in absence of the other spouse as a party to the proceedings, the same would not be maintainable.[197F] 3.Under the general law a child for being legitimate has to be 195 born in lawful wedlock and if the marriage is void or declared to be so by the Court, it will necessarily have the effect ofbastardising the child born of the parties to such a marriage.[199F] 4. By enacting Section 5(i) of the the legislature abolished polygamy, which had always remained permissible and prevalent among the Hindus in the past. The Act was bringing about a very significant departure in this regard; and taking into account the possibility of violation of the law in numerous cases at least for sometime to come special provisions were included under Section 16 of the Act with the object of protecting the legitimacy of the children.[199G] 5. The benefit of Section 16 was confined to only such cases where a decree of nullity was granted under Section 11 or section 12. It did not extend to other cases. in 1976 section 11 was amended by inserting the words "against the otherparty" and alongwith the same section 16 was amended.[200D] 6. By the amendment in section 11, in so far the cases where marriage can be declared as nullity, the application of the rule protectingthe legitimacy was widened. If that had notbeen,the children born of such marriages would have been deprived of the advantage on the death of either of the parents. By the simultaneous amendment of the two sections it can safely be deducted that the Parliament did not hold identical views as expressed by the law Commission in its59th Report.[200F G] 7. The intention of the legislature in enacting section 16 was to protect the legitimacy of the children who would have been legitimate if the Act had not been passed in 1955.[200H] 8. There is no reason to interpret section 11 in a manner which would narrow down its field. With respect to the nature of the proceedings, what the court has to do in an application under section 11 is not to bring about any change in the marital status of the parties. The effectof granting a decree of nullity is to discover the flow in the marriage at the time of its performance and accordingly to grant a decree declaring it tobe void. [201A B] Butterfield vs Butterfield; I.L.R.(Vol.50) Calcutta 153 and Stanhope vs Stanhope, , and Law Commission of India 59th Report Chapter 6, para 6.1A referred to. 196 9.It is not correct to suggest that one uniform rule shall apply for deciding the maintainability of all proceedings involving issues relating to marital status. The question will be dependent upon on the nature of the action and law governing the same. The provisions of the relevant statue relating to a question will be very material.[198H 199A] Rayden and Jackson 's Law and Practice in Divorce and Family Matters, (15th Edn.). p.650, referred to.

The father of the appellant owned considerable agricultural property in Pakistan and he with the members of his family moved over to India on partition. The appellant 's father had some unsatisfied claim for allotment and on December 29. 1955 he was allotted some plots in Urban area within a certain municipality. The appellant 's father died in 1952 and the allotment made was actually to the appellant in lieu of the claim of his father. On the allotment being made, a sanad was issued to the appellant by the Managing Officer. When the appellant tried to take possession of these lands, disputes were raised by respondents Nos. 4 and 5. These respondents moved the Assistant Settlement Commissioner for cancellation of the allotment on the ground that these disputed plots were within an "urban area" within the meaning of r. 2(h) of the Displaced Persons, Compensation and Rehabilitation Rules, 1955 and, therefore, the allotment to the appellant was contrary to law. The Assistant Settlement Commissioner accepted the contention of the res pondents and allowed the appeal and cancelled the allotment. The appellant then applied to the Chief Settlement Com missioner in revision. He rejected the petition. Then the appellant moved a petition under articles 226 and 227 of the Constitution before the High Court. This petition was also dismissed. the High Court granted certificate of fitness under article 133 of the Constitution and hence the appeal. Held:(i) Where an order making an allotment was set aside by the Assistant Commissioner or Settlement Commissioner the title which was obtained on the basis of the continuance of that sanad or order also fell with it. Shri Mithoo Shahani vs Union of India, ; , relied on. (ii)The contention of the appellant that r. 2(h) of the Displaced Persons Compensation and Rehabilitation Rules, 1955, was unconstitutional as contravening article 14 of the Constitution must fail. This contention is based on the basis of the proviso to Rule 2(h). Rule 2(h) was framed under section 40 of the Act. This rule along with other rules came into force on May 21, 1955. The allotment was made to the appellant on December 29, 1955 and the Sanad was issued two days later. In other words the allotment in favour of the appellant was after the rule came into force and was not one "already made" as stated in the proviso to r. 2(h). Therefore, if on the date of the allotment the land was in an urban area, the allotment would be governed by the main para of the definition and the proviso, had no application. 193 The discrimination is said to consist in the rule having drawn a dividing line at the date when it came into force, for determining whether the allotment was valid or not. Such a contention is patently self contradictory. Every law must have a beginning or time from which it operates, and no rule which seeks to change the law can be held invalid for the mere reason that it effects an alternation in the law. It is sometimes possible to plead injustice in a rule which is made to operate with retrospective effect, but to say that a rule which operates prospectively is invalid because thereby a difference is made between the past and the future, is one which cannot be accepted.

Upon the death of the last Mahant of a Dera of Sanyasi Sadhus in Punjab, the respondent, claiming to be the Chela of the deceased and therefore having a preferential title, entered into possession of certain properties basing his title thereto on an appointment made to the office by the Bhekh and the people of the village. The appellant also claimed the same properties as the successor of the deceased Mahant and brought a suit for a decree for possession of the properties belonging to the Dera, he claimed title on the basis that as Gurbhal of the last Mahant, he was entitled to the Gadi and that he, and not the respondent, had been appointed to it by the people of the village and the Bhekh; he further claimed in the alternative, that even if it was found that he was not so appointed, according to the custom regarding succession of the Dera and Rewaj i am of Deras, he was in any event entitled to become Mahant as he was the Gurbhai of the deceased Mahant. The trial court found that the respondent was not the Chela of the deceased Mahant and that there was no evidence that be was appointed Mahant, on the other hand the appellant was also held not to have been appointed. However, without recording a finding on the custom set up by the appellant, the trial court held that under the law in Punjab, in the absence of a Chela, a Gurbhai was entitled to succeed to the Gadi apart from any question of appointment by the Bhekh, and on this reasoning, decreed the appellant 's suit. The respondent 's first appeal to the Additional Sessions Judge was allowed but a Single Bench of the High Court reversed that decision. Thereafter, in the respondent 's Letters Patent Appeal, although the Division Bench concurred with the single Bench on the other issues, the appeal was allowed on the ground that the custom set up in the plaint that a Gurbhai could succeed without an appointment of the Bhekh had not been made out. HELD : (i) There is no general law applicable to religious institutions in the Punjab and each institution must be deemed to be regulated by its own custom and practice. Therefore, the appellant could not succeed as Mahant without reference to an appointment by the Bhekh or the fraternity unless he could establish a custom which entitled him to succeed by virtue of being a Gurbhai. [238 D E; 239 C] Rattigans ' Digest of Customary law: Jiwan Das vs Hira Das, A.I.R. 1937 Lah. 311 and Sital Das vs Sant Ram, A.I.R. 1954 S.C. 606, referred to. On the basis of the evidence before the trial court the appellant had not established the custom put forward by him. [240 G] Sup./65 16 234 (ii)The appellant 's suit being one of ejectment he had to succeed or fail on the title that he established; if he could not succeed on the strength of his title, his suit must fail notwithstanding that the defendant in possession had no title to the property. [236 HI Mukherjea 's Hindu Law of Religious and Charitable Trust, 2nd Edition,p. 317, referred.

This appeal was directed against the judgment of the Madhya Pradesh High Court, setting aside the order of the trial court acquitting the appellants, and convicting them under section 302 read with section 34 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life. The prosecution case was that on 4.1.1982 Ram Pratap Singh deceased had gone to Collectorate, Panna where he noticed that Om Prakash and Raghvendra, who were inimical to him, were shadowing him in the Collectorate. He requested Rajendra Singh PW 14, Chhotey Bhaiya. PW 5, and Mohd. Tohid, PW 16, to accompany him on his return journey as he sensed danger to his life, and sent Tohid to purchase bus tickets with a direction that he should meet him at the octroi toll barrier on the Ajaigarh Road from where he proposed to take the bus. Thereafter, he alongwith Rajendra Singh, PW 14 and Chhotey Bhaiya. PW 15, proceeded to Chungi Chowki (octroi Post) on the Ajaigarh Road. While they were waiting for Tohid, Ram Pratap Singh went for drinking water from a well nearby. When he was just in the process of drinking water, gun shots were fired towards him, causing injuries to him. Upon this, he ran towards his associates and fell down near Rajendra Singh and Chhotey Bhaiya. The prosecution further alleged that on hearing the gun shots, Rajendra Singh and Chhotey Bhaiya saw the appellant Brajendra armed with a.315 rifle and Awadesh armed with a 12 bore gun running away. Rajendra Singh and Chhotey Bhaiya, armed with a rifle and a gun respectively, fired shots towards the assailants and the assailants also fired towards them. On hearing gun fire, V.P. Pathak, Sub lnspector of Police, PW 20, rushed to the spot with Constable Lakhan Singh, PW 12. Rajendra Singh, PW 14 gave him information about the incident, which was recorded by him (Dehati Nalishi exhibit P. 12 at 3.10 P.M.) V.P. Pathak, 514 sent the Dehati Nalishi to Kotwali Panna through Lakhan Singh, Constable, for recording the first information report. Pathak, sub inspector then prepared the panchnama and spot map Ex P. 17 on the same day. A charge sheet was submitted against five accused persons, including the two appellants Brajendra and Awadesh for trial for offences under section 312 read with section 34 and section 307 read with section 34 of the Indian Penal Code. The Trial Court disbelieved the testimony of the two eye witnesses, Rajendra Singh, PW 14 and Chhotey Bhaiya, PW IS, and referring to a number of circumstances which made the prosecution story doubtful, acquitted the accused. On appeal by the State Government, the High Court disagreed with the reasons recorded by the Trial Court, and placing reliance on the testimony of the eye witnesses, i.e. Rajendra Singh and Chhotey Bhaiya, allowed the State appeal, set aside the acquittal of the appellants and convicted them under section 302 read with section 34 of the Indian Penal Code and awarded a sentence of life imprisonment to each of them. The appellants appealed to this court against the decision of the High Court. Allowing the appeal, the Court, ^ HELD: The High Court on an appraisal of the evidence came to the conclusion that the prosecution had proved its case beyond all reasonable doubt. It referred to a number of decisions of this Court in considering the scope of its jurisdiction in interfering with an order of acquittal passed by the trial court, but while applying the principles, it failed to appreciate that the view taken by the trial court was reasonable and plausible. While considering an appeal against acquittal, the High Court must, in appreciating the evidence, keep in mind that if on appraisal of evidence and considering relevant attending circumstances it is found that two views are possible, one held by the trial court for acquitting the accused, and the other, for convicting the accused, in such a situation, the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial court. Unless the conclusions of the trial court drawn on the evidence on record are found to be unreasonable, perverse of unsustainable, the High Court should not interfere with the order of acquittal. The High Court in this case made an attempt to explain away the infirmities in the testimony of the eye witnesses in setting aside the order of acquittal. The High Court disregarded the rule of judicial prudence in converting the order of acquittal to conviction, and committed error in interfering with the order of acquittal. [519G H; 520A B] 515 The first information report, exhibit P. 12, showed that the occurrence took place at 14.15 hours while the report was lodged at 15.10 hours. The evidence on record and the attending circumstances indicated that the first information report was not lodged at 15.10 hours; instead it was lodged at about 17.00 hours. The testimony of Rajendra Singh, PW 14, regarding the lodging of the first information report was contradictory. The statement of V.P. Pathak, PW 20, the investigating officer, clearly indicated that the first information report was written after 17.00 hours and it was not recorded at the time it purported to have been lodged. There were material contradictions in the testimony of Rajendra Singh PW 14 and the investigating officer. Since the Sub Inspector, the District Magistrate and the Superintendent of Police had reached the place of occurrence within a few minutes of the incident, the delay in lodging the first information report was highly suspicious. Why this delay when all officers and the eye witnesses were present at the spot, and the police station was at a distance of two furlongs? The obvious reason appeared to be that the names of the assailants were not known, as most likely, the eye witnesses had not seen the assailants and they were not present at the scene of the occurrence. In all likelihood, they arrived at the scene after the incident, and since the names of the assailants were not known, the F.l. R. was lodged with delay after deliberation. This view finds support from the testimony of Tohid PW 16 and other circumstances. There were material contradictions in the statements of the three witnesses Rajendra Singh PW 14, Chhotey Bhaiya, PW 15 and Tohid, PW 16, and in view of the same and, further in view of the discrepancy regarding the delay in the lodging of the first information report, it was apparent that till the first information report was lodged, nobody knew who the assailants were and that was why Rajendra Singh could not disclose the names of the assailants to Tohid on his arrival at the scene of occurrence after he had been sent to bring the bus tickets. [520H; 521A C. E; 522H; 523A] The prosecution relied upon the recovery of the two empty cartridges to connect the appellants with the commission of the crime. The recovery of these empty cartridges was not made on 4.1.1982; instead, these cartridges were recovered on 5.1.82, although the spot map of the scene of occurrence was prepared on 4.1.82 itself. It was interesting to note that the spot where these cartridges were recovered was shown in the spot map prepared on 4.1.82 although the recovery was made on S.1.82. The witnesses in whose presence the recovery of the cartridges was made had not supported the prosecution. Moreover, it was the admitted case of the prosecution that there was an exchange of fire from both sides by the assailants and by Rajendra Singh and 516 Chhotey Bhaiya but no other cartridges were recovered by the Investigating officer. The investigating officer did not take into possession the licensed rifle and gun of Raghavendra Singh and Awadesh, nor was any effort made to secure the evidence of the ballistic expert to prove that the empty cartridges had been fired from the respective weapons. These circumstances indicated that the empty cartridges were not recovered; instead, the investigating officer had planted those cartridges to support the prosecution case. [523B E] On the evidence on record, it was apparent that the Chungi Chowki (octroi toll barrier) was manned by the employees of the Municipal Board, who were present at the spot, and in addition to them, there was Home Guard office adjacent to the toll barrier and there were residential houses near the barrier and the place of occurrence was a busy public place. It came into evidence that large number of persons had gathered at the scene of occurrence, but no employee of the toll barrier or Home Guard once or local resident came forward to support the prosecution case. The District Magistrate, the superintendent of Police and other officers had also reached the spot within minutes of the incident, but none of them entered the witness box to support the prosecution case. The prosecution produced Udai Singh PW 17 and Kali Charan PW 19, who were residents of Uttar Pradesh and close relatives of the deceased. Their presence at the scene of occurrence as highly doubtful and their testimony was not free from doubt as they were highly interested persons. The trial court rightly discarded their testimony as their statements had been recorded by the police after two months of the occurrence. without there being an explanation for the delay. [523F H; 524A B] The injuries mentioned in the testimony of Dr. Jain who had carried out the post mortem examination of the dead body of Ram Pratap Singh, could not be caused in the manner and from the place where the assailants were alleged to be present at the time of firing, and the same were inconsistent with the testimony of the eye witnesses and the site plan. The trial court had discussed this question at length and the Court agreed with the findings of the trial Court. In the opinion of the doctor, the person who caused injuries to the deceased was at a higher level than the deceased; this was wholly inconsistent with the testimony of the eye witnesses. Though medical expert 's opinion is not always final and binding, in this case, it corroborated the other circumstances which indicated that the eye witnesses had not seen the actual occurrence. [524B; 525E H] 517 The prosecution had failed to prove its case beyond all reasonable doubt and the High Court committed error in interfering with the trial court 's order of acquittal. Order of the High Court and the appellant 's conviction were set aside and order of the trial court was restored and the appellants were acquitted. [526A B] G.B. Patel & Anr. vs State of Maharashtra, ; and Sheo Swarup vs King. Emperor, A.l.R.

The appellant was convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life by the High Court for the offence of the murder of his wife. He was granted special leave to appeal by this Court. During the pendency of the hearing of this appeal the appellant died. After his death his sons and daughter applied to this Court for permission to continue to prosecute the appeal. It was pleaded by the legal representatives of the appellant that though that sentence of imprisonment could no longer be executed, it still affected the property of the deceased and the legal representatives were, therefore, interested in the appeal and should be permitted to continue it. The appellant, who held a high office in the Government of Andhra Pradesh had been suspended during the investigation of the charge against him and he was dismissed from service under certain service rules on his conviction. During this time the appellant had only been given a small allowance. On these facts it was pleaded that if the conviction was set aside, the estate of the deceased would be entitled to receive the full salary from the Government. Held (Per Sarkar, J.): (i) Neither section 431 nor the cases men tioned can be said to apply to the present case proprio vigore, for the present is not an appeal under the code of criminal procedure which is dealt with by section 431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitra 's case, while as for the English case, it is only of persuasive value. Pranab Kumar Mitra vs The State of West Bengal, [1959] Supp. 1 S.C.R. 63 and Hodgson vs Lakeman, , distinguished. (ii).The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it. This principle applies in appeals, revisions, and in petitions under article 136 of the Constitution. A sentence of fine no doubt affects the property. In the present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become infructuous. In the present case the effect of the sentence imposed in this case being set aside would not directly entitle the legal representatives to the salary. They will have to obtain necessary orders from the Government for the purpose. 252 Held (Per Hidayatullah, J.): (i) This was an appeal against a sentence of imprisonment and an appeal of this character would normally abate on the death of the appellant because a criminal prosecution is concerned primarily with the punish ment of an offender and not with the trial of an abstract issue about the truth or falsity of a prosecution case. The same principle must apply to appeals after conviction, except in so far as a judgment already rendered touches assets which would come to the legal representative. In so far as personal punishment (other than a fine) is concerned that stands dissolved by the death of the offender and an appeal to get that punishment set aside becomes infructuous and abates. Pranab Kumar Mitra vs The State of West Bengal, [1959] Supp. 1 S.C.R. 63, Pritam Singh vs State, ; , distinguished. Hodgson vs Lakeman, [1943] L.R.K.B. 15, Baghis vs Rowes , referred to. (ii).The principle laid down in Pranab Kumar Mitra vs The State of. West Bengal and Another and in Pritam Singh vs The State has.no application to the present matter because there is no analogy between an appeal by special leave and a revision under the code. The present case is not a case where the legal representatives after the death of the offender have to meet the liability of a fine or are required to protect the assets which they claim should reach them. In the present case no claim of the petitioners is jeopardized directly, by the judgment. Their claim is dependent upon the administrative action of Government which may not proceed upon the result of criminal prosecution. This appeal was only concerned with the correctness or otherwise of the conviction and not with any monetary claims depending upon the result of the appeal. In such a situation the ordinary rule that a criminal proceeding against a person comes to an end on his demise must apply also to special appeals in this court, such as this, even though the provisions of the Criminal Procedure Code may not be directly applicable. Held (Per Mudholkar, J.): (i) The decision of this court in Pranab Kumar Mitra vs The State of West Bengal has no, bear ing upon an appeal brought to this court by special leave. It is no doubt true that the power confer red by section 435 of the Code on the High Court and certain other courts and by Article 136 of the Constitution on this Court is discretionary. Under section 439 of the Code the High Court can exercise any of the powers conferred on a court of appeal by sections 423, 426, 427 and 428 or on a court by section 338 and has also the power to enhance the sentence. Under Section 435 of the Code, the High Court can suo motu call for the record of any inferior court but this power cannot be exercised by this court under article 136 of the Constitution. Therefore there is a fundamental difference between the power of the High Court in revision and the power of this Court in article 136 of the Constitution. Pranab Kumar Mitra vs The State of West Bengal, [1959] Supp. 1 S.C.R. 63, distinguished. (ii).In a criminal matter the issue is personal between the accused person and the State and the right of appeal is also personal to the appellant. There is admittedly no express provision permitting the substitution of legal representatives of a decreased appellant in a criminal appeal brought to this Court by 253 special leave. The policy of the law discernible from section 431 of the Code has to be borne in mind. The policy under section 431 of the Code is that every criminal appeal under chapter XXXI will abate except an appeal from a sentence of fine. There is no provision which prescribes the continuation of the appeal on the death of the appellant in cases where the sentence is of imprisonment. The interest of the legal representatives in the present case is not a direct interest in the sense that it cannot arise out of the decision of this court even if it is in favour of the appellant. The only interest which the applicants have is a contingent one and is not one which could flow directly out of the ultimate decision of this Court. Hodgson vs Lakeman, (1943) L.R.K.B. 15, Regina vs Rowe, , Hesketh vs Atherton, Leach vs Wanstead School Board, Siberry vs Connolly, Constantine vs Illingworth, Jones vs Gallowfield, Rivers vs Glasse, (all cited in Short and Mellor, Practice on the Crown Side of the King 's Bench Division 2nd Ed. at p. 425), United States vs Mook, , The State of Kerala vs Narayani Amma Kamala Devi, [1962] Supp. 3 S.C.R. 943 and Imperatrix vs Dongali Andaji, , referred to and discussed. (iii). .The Legislature has by limiting in section 431 of the Code the survival of appeals to appeals against sentences of fine has chosen to recognise only one kind of interest and no other. This Court in exercise of its inherent powers or discretionary powers would not be acting according to correct legal principles in recognising a kind of interest which the legislature has not chosen to recognise. In the circumstances the applicants ought not to be granted special leave to prosecute the appeal.

^ HELD: (Per Sarkaria, J.) The records of this case be submitted to the Hon 'ble Chief Justice for C constituting a larger Bench which would resolve the doubts, difficulties and inconsistencies pointed out by Kailasam J. in his order, particularly in its last paragraph. (Per Kailasam, J.) 1. Before the amendment of Section 367(5) of the Code of Criminal Procedure by the Criminal Procedure Code (Amendment) Act 1955 (Act 26 of 1955) was introduced, the normal sentence for an offence of murder was death and the lesser sentence was the exception. After the introduction of the amendment it was not obligatory for the court to state the reasons as to why the sentence of death was not passed. By the amendment the discretion of the court in deciding whether to impose a sentence of death or imprisonment for life became wider. The court was bound to exercise its judicial discretion in awarding one or the other of the sentences. By the introduction of Section 354(3) of the Code of Criminal Procedure 1973, the normal sentence is the lesser sentence of imprisonment for life and if the sentence of death is to be awarded, special reasons will have to be recorded. In other words, the court, before imposing a sentence of death, should be satisfied that the offence is of such a nature that the extreme penalty is called for. [1203A C] 2. In a number of decisions, this court has reiterated the position that under section 354(3) of the 1973 Code, the court is required to state the reasons for the sentence awarded and in the case of sentence of death special reasons are required to be stated. [1203D] Balwant Singh vs State of Punjab [1976] 2 S.C.R. 684; Ambaram vs The State of Madhya Pradesh ; and Sarveshwar Prasad Sharma vs Slate of Madhya Pradesh [1978] I S.C.R. 560 referred to. In Jagmohan Singh vs State of U.P. ; in which the constitutional validity of imposition of death sentence was challenged, this Court held that the deprivation of life is constitutionally permissible if that is done according to the procedure established by law and that it cannot be held that capital sentence is per se unreasonable and not in the public interest. It was also held that the Judges are invested with very wide discretion in the matter of fixing the degree of punishment and that discretion in the matter of sentence is liable 20 409SCI/79 1194 to be corrected by superior courts, that exercise of judicial discretion on well recognised principles is, in the final analysis, the safest possible safeguard for the accused. [1204C D] 4. Section 367(5) of the Criminal Procedure Code which came into force on April 1, 1974, after the judgment in Jagmohan Singh 's case, provides that the judgment shall state the special reasons where a sentence of death is award ed for an offence punishable with death or in the alternative with imprisonments life or imprisonment for a term of years. The requirement that courts should state the special reasons for awarding the death sentence would indicate that the normal sentence for an offence punishable either with death or with imprisonment for life is imprisonment for life and that if the court considered that sentence of death is appropriate on the particular facts of the case it should give special reasons. [1204 G H] 5. But in Rajendra Prasad vs State of U.P. ; , the majority of a Division Bench of this Court held that "special reasons" necessary for imposing the death penalty must relate not to the crime as such but to the criminal. The death sentence can be awarded only in certain restricted categories where a crime holds out a durable And continuing threat to social security in the setting of a developing country and poses a grave peril to society 's survival and when an economic offender intentionally mixes poison in drugs and knowingly and intentionally causes death for the sake of private profit and so on. The decision is in many respects contrary to the law laid down by the Constitution Bench of this Court in Jagmohan Singh 's case. The court in this case has proceeded to make law as regards the conditions that are necessary for imposition of a sentence of death under section 302 I.P.C. and to canalisation of sentencing discretion and has embarked on evolving working rules on punishment bearing in mind the enlightened flexibility of social sensibility. In doing so the Court has exceeded its power conferred on it by law. Courts have no power to legislate and to frame rules to guide the infliction of death penalty. [1205C F] 6. So far as the enacted law is concerned, the duty of the court is to interpret and construe the provisions of the enactment. Courts must take it absolutely for granted that the Legislature has said what it meant and meant what it has said. Judges are not at liberty to add or to take from or modify the letter of the law simply because they have reason to believe the true sentence legis is not completely or correctly expressed by it. Though the courts are free to interpret, they are not free to overlook or disregard the constitution and the laws. [1207B D] 7. It is for the court to administer the law as it stands. In awarding sentence or death, the court has to take into consideration the various aspects regarding a crime and the reason for committing the crime and pass the appropriate sentence, and if it is death sentence, to give reasons as required by the Code of Criminal Procedure. If in deciding a case on particular facts a principle is stated, it would be binding as a precedent. If courts resort to rule making, it will not be binding as a precedent. If the courts are to embark on rule making the question arises whether the responsibility can be undertaken by a bench of three Judges with majority of 2: 1. There is no machinery by which the court could ascertain the views of the various cross sections of the society, which is a pre requisite before any law making is resorted to. 1195 Rajendra Prasad 's ease the court embarked on framing rules prescribing conditions for the imposition of death sentence. The view of the majority that in awarding a sentence the criminal is more important than the crime is not warranted by the law as it stands today. The general principles laid down in Rajendra Prasad 's case are not the ratio decidendi of the case. The enunciation of the reasons or the principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi ascertained on a consideration of the judgment in relation to the subject matter of the decision which alone bas the force of law and which, when it is clear what It was, is binding. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand have no binding authority on another court, though they may have merely persuasive efficacy. Decisions upon matters of facts are not binding on any other court [1207G H; 1202D F] Tribhuvandas vs Ratilal ; = 70 Bom. L. R. 73; Amritsar Municipality vs Hazara Singh A.I.R. ; and Quinn vs Leatham 1901 A.C. 495 at p. 506; referred to. In Rajendra Prasad 's case the conclusion of the majority was that as nothing on record suggested that the accused was beyond redemption and since the record did not hint that such an attempt was made inside the prison there was no special reason to award death sentence. The utmost to which this case can be considered as an authority is that if in similar circumstances when a person stabs two persons several times it would not furnish special reasons for inflicting the death penalty. In the second case (Kunjukunju) the majority was of the view that the test should be whether the accused was a social security risk altogether beyond salvage by therapeutic life sentence was neither in accordance with the requirements of the Code of Criminal Procedure nor law laid down by the Constitution Bench. Therefore, it cannot be followed as a precedent. Similarly, in the third case (Dubey 's case) also the majority view that it would be illegal to award capital punishment without considering the correctional possibilities inside the prison and that the accused being young and of malleable age and other circumstances bearing on the offender called for the lesser sentence is not in conformity with the decisions of this Court or the requirements of the law. [1213H; 1214A H] 9. In the instant case the appellant was released after undergoing a term of imprisonment for the murder of his wife. After release he lived with his cousin. When his cousin 's son and wife objected to his stay with the family he inflicted a fatal injury on the son and two daughters of his cousin when they were asleep and caused grievous injury on another daughter The courts below came to the conclusion that the appellant acted in a very cruel manner. They have rightly characterised the offence as heinous and held that the only appropriate sentence was the extreme penalty of death. The trial court and the High Court were right in their conclusions. [1215 C E] [Rajendra Prasad 's case cannot be treated as a binding precedent yet as it is a decision of a division bench of this Court. The papers were directed to be placed before the Hon 'ble the Chief Justice for constituting a larger bench to decide the case.]

minal Appeal No. 162 of 1959. Appeal by special leave from the judgment and order dated January 13, 1959, of the Rajasthan High Court in D. B. Criminal Revision No. 47 of 1957. 267 N. C. Chatterjee, J. L. Datta and C. P. Lal, for the appellant. Mukat Behari Lal Bhargava and Naunit Lal, for respondent No.2. April 24. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. On June 13,1950, the Municipal Committee, Ajmer, respondent 2, issued a notice against the appellant, the Durgah Committee, Ajmer, under section 153 of the Ajmer Merwara Municipalities Regulation, 1925 (VI of 1925) (hereafter called the Regulation) calling upon it to carry out certain repairs in the Jhalra Wall which was in a dilapidated condition. The appellant did not comply with the said requisition and so respondent 2 served another notice on the appellant under section 220 of the Regulation inti mating to it that the required repairs would be carried out at the expense of respondent 2 and that the cost incurred by it would be recovered from the appellant. This notice was served on July 3, 1950. Even so the appellant took no steps to make the repairs and so respondent 2 proceeded to get the repair work done at its expense which amounted to Rs. 17,414. Under section 222(4) of the Regulation this sum became recoverable from the appellant as a tax. A notice of demand in that behalf was issued on the appellant on April 1, 1952, and in pursuance of the said notice respondent 2 applied to the Additional Tehsildar and Magistrate II Class, Ajmer, for the recovery of the said amount under section 234 of the Regulation. In the proceedings before the learned Magistrate the appellant raised certain pleas. These pleas were rejected and an order was passed calling upon the appellant to pay the dues in question by August 30, 1956. Against this order the appellant preferred a criminal revision application in the Court of the Sessions Judge, Ajmer. The learned Sessions Judge considered the contentions raised by the appellant and held that the view taken by the Magistrate cannot be said to be incorrect and so there was no ground to interfere in revision. Feeling aggrieved by the dismissal of its 268 revision application the appellant moved the High Court of Judicature for Rajasthan in its revisional jurisdiction. Before the High Court, on behalf of respondent 1, the State of Rajasthan, as well as respondent 2, a preliminary objection was raised that the criminal revision application filed by the appellant was incompetent since the Magistrate who entertained respondent 2 's application made under section 234 ",as not an inferior criminal court under section 439 of the Code of Criminal Procedure. This preliminary objection was upheld by the High Court and the criminal revision application dismissed on that ground. It is against this order that the appellant has come to this Court by special leave; and the short question which the appeal raises for our decision is whether the Magistrate who entertained the application made before him by respondent 2 under section 234 was an inferior criminal court under section 439 of the Code of Criminal Procedure. Before dealing with this point it is relevant to refer to the scheme of the material provisions of the Regulation. Section 153 confers power on the Municipality to order removal or repair of buildings which may be found in a dangerous state. Under this section the Committee may by notice require the owner of the building, wall or structure to remove the same forthwith or cause such repairs as the Committee may consider necessary for the public safety. This section also empowers the Committee to take at the expense of the owner any steps which it thinks necessary for the purpose of averting imminent danger. If the owner on whom a notice is served under section 153 complies with the requisition nothing more need be done. If, however, the owner does not comply with the requisition served on him the Committee is empowered to cause the repairs to be made after six hours notice to the owner under section 220. This section provides that whenever the terms of any notice issued under this Regulation have not been complied with the Committee may, after six hours ' notice, cause the act to be done by its officers. As a corollary to this provision, and indeed as its consequence, section 222 empowers the Committee to recover the cost of the work done 269 under section 220. Section 222(1) authorises the Committee to recover the cost of the work from the person in default. Sub sections (2) and (3) of section 222 then deal with the question as to which person should be held to be in default, the owner or the occupier; with that question we are not concerned in the present appeal. Sub section (4) of section 222 provides that where any money recoverable by the Committee under this section is payable by the owner of the property, it shall be charged thereon and shall be recoverable as if it were a tax levied by the Committee on the property. By sub section (5) it is provided that the contract between the owner and the occupier is not affected by this section. It is under section 222(4) that a demand notice was served on the appellant by respondent 2. That takes us to section 234 which provides for the machinery of recovery of municipal claims. This section provides, inter alia, that any tax claimable or recoverable by a Committee under this Regulation, after demand has been made therefor in the manner prescribed by rule, be recovered on application to a Magistrate having jurisdiction within the limits of the Municipality or in any other place where the person by whom the amount is payable may for the time being reside, by the distress and sale of any movable property within the limits of such Magistrate 's jurisdiction belonging to such person. The proviso to this section prescribes that nothing in this section shall prevent the Committee at its discretion from suing for the amount payable in any competent Civil Court. It would thus be seen that the object of making an application to the Magistrate is to obtain an order from the Magistrate direct ing the recovery of the tax claimable or recoverable by distress and sale of any movable property belonging to the defaulter. It is under this section that tile Magistrate was moved by respondent 2. That in brief is the scheme of the material provisions of the Regulation. The main argument which Mt . Chatterjee, for the appellant, has pressed before us is that in determining the nature of the proceedings under section 234 and the character of the Magistrate who entertains an application made under the said section, it is important to 35 270 bear in mind that a person in the position of the appellant has no other opportunity to challenge the validity of the notice as well as the validity of the claim made against him by the Committee. The argument is that it would be open to the owner to contend that the notice issued under section 153 is invalid or frivolous. It would also be open to him to contend that the amount sought to be recovered from him is excessive and that even if the repairs were carried out they could not have cost as much, and since the scheme of the Regulation shows that it provides no opportunity to the owner to raise those contentions except in proceedings under section 234 the nature of the proceedings and the character of the Magistrate who entertains them should be liberally construed. The proceedings should be deemed to be judicial proceedings and the Magistrate should be held to be an inferior criminal court when he entertains the said proceedings. If the assumption on which the argument proceeds that the Regulation provides no other opportunity to the owner to challenge the notice or to question the amount claimed from him were sound then there would be some force in the contention that section 234 should be liberally construed in favour of the appellant. But is that assumption right? The answer to this question would depend upon the examination of three relevant provisions of the Regulation; they are sections 222(4), 93 and 226. We have already seen that section 222(4) provides that any money recoverable by the Committee under section 222(1) shall be recovered as if it were a tax levied by the Committee on the property and shall be charged thereon. Section 93 provides for appeals against taxation. Section 93(1) lays down, inter alia, that an appeal against the assessment or levy of any tax under this Regulation shall lie to the Deputy Commissioner or to such officer as may be empowered by the State Government in this behalf. The remaining five subsections of section 93 prescribe the manner in which the appeal should be tried and disposed of. If the amount recoverable by respondent 2 from the appellant is made recoverable as if it were 271 a tax levied by the Committee, then against the levy of such a tax an appeal would be competent under section 93(1). Mr. Chatterjee argues that section 93(1) provides for an appeal against the levy of a tax, and he draws a distinction between the amount made recoverable as if it were a tax and the amount recoverable as a tax. His contention is that the amount which is recoverable under section 222(1) is no doubt by fiction deemed to be a tax but against an amount thus deem.s. 93(1). We are not impressed by this argument. If by the fiction introduced by section 222(4) the amount in question is to be deemed as if it were a tax it is obvious that full effect must be given to this legal fiction; and in consequence just as a result of the said section the recovery procedure prescribed by section 234 becomes available to the Committee so would the right of making an appeal prescribed by section 93(1) be available to the appellant. The consequence of the fiction inevitably is that the amount in question can be recovered as a tax and the right to challenge the levy of the tax accrues to the appellant. This position is made perfectly clear by section 226. This section provides, inter alia, that where any order of a kind referred to in section 222 is subject to appeal, and an appeal has been instituted against it, all proceedings to enforce such order shall be suspended pending the decision of the appeal, and if such order is set aside on appeal, disobedience thereto shall not be deemed to be an offence. It is obvious that this section postulates that an order passed under section 222 is appealable and it provides that if an appeal is made against such an order further proceedings would be stayed. It is common ground that there is no other provision in the Regulation providing for an appeal against an order made under section 222(1); and so inevitably we go back to section 93 which provides for an appeal against the levy of a tax. It would be idle to contend that though section 226 assumes that an appeal lies against an order made under section 222(1) the Legislature has for. gotten to provide for such an appeal. Therefore, in our opinion, there can be no doubt that reading 272 sections 222, 93 and 226 together the conclusion is inescapable that an appeal lies under section 93(1) against the demand made by the Committee on the owner of the property under section 222(1). If that be so, the main, if not the sole argument, urged in support of the liberal construction of section 234 turns out to be fallacious. ow, looking at section 234 it is clear that the proceedings initiated before a Magistrate are no more than recovery proceedings. All questions which may legiti mately be raised against the validity of the notice served under section 153 or against the validity of the claim made by the Committee under section 222 can and ought to be raised in an appeal under section 93(1), and if no appeal is preferred or an appeal is preferred and is dismissed then all those points are concluded and can no more be raised in proceedings under section 234. That is why the nature of the enquiry contemplated by section 234 is very limited and it prima facie partakes of the character 'of a ministerial enquiry rather than judicial enquiry. In any event it is difficult to hold that the Magistrate who entertains the application is an inferior criminal court. The claim made before him is for the recovery of a tax and the order prayed for is for the recovery of the tax by distress and sale of the movable property of the defaulter. If at all, this would at best be a proceeding of a civil nature and not criminal. That is why, we think, whatever may be the character of the proceedings, whether it is purely ministerial or judicial or quasi judicial, the Magistrate who entertains the application and holds the enquiry does so because he is designated in that behalf and so he must be treated as a persona designata and not as a Magistrate functioning and exercising his authority under the Code of Criminal Proce dure. He cannot therefore be regarded as an inferior criminal court. That is the view taken by the High Court and we see no reason to differ from it. In the present appeal it is unnecessary to consider what would be the character of the proceedings before a competent Civil Court contemplated by the proviso. Prima facie such proceedings can be no more than execution proceedings. 273 Mr. Chatterjee also attempted to argue that the proceedings under section 234 taken against the appellant by respondent 2 were incompetent because a demand, has not been made by respondent 2 on the appellant in the manner prescribed by rule as required by section 234. It does appear that rules have not been framed under the Regulation and so no form has been prescribed for making a demand under section 222(1). Therefore the argument is that unless the rules are framed and the form of notice is prescribed for making a demand under section 222(1) no demand can be said to have been made in the manner prescribed by rules and so an application cannot be made under section 234. There are two obvious answers to this contention. The first answer is that if the revisional application made by the appellant before the High Court was incompetent this question could not have been urged before the High Court because it was part of the merits of the case and so cannot be agitated before us either. As soon as it is held that the Magistrate was not an inferior criminal court the revisional application filed by the appellant before the High Court must be deemed to be incompetent and rejected on that preliminary ground alone. Besides, on the merits we see no substance in the argument. If the rules are not prescribed then all that can be said is that there is no form prescribed for issuing a demand notice; that does not mean. that the statutory power conferred on the Committee by section 222(1) to make a demand is unenforceable. As a result of the notice served by respondent 2 against the appellant respondent 2 was entitled to make the necessary repairs at its cost and make a demand for reimbursement of the said cost. That is the plain effect of the relevant provisions of the Regulation; and so, an amount which was claimable by virtue of section 222(1) does not cease to be claimable just because rules have not been framed prescribing the form for making the said demand. In our opinion, therefore, the contention that the application made under section 234 was incompetent must be rejected. It now remains to consider some decisions to which 274 our attention was drawn. In Crown through Municipal Committee, Ajmer vs Amba Lal (1), the Judicial Commissioner Mr. Norman held that a Magistrate entertaining an application under section 234 of the Regulation is an inferior criminal court. The only reason given in sup port of this view appears to be that the Magistrate before whom an application under the said section is made is appointed under the Code of Criminal Procedure, and so he is a criminal court although he is not dealing with crime. That is why it was held that he had jurisdiction to decide whether the conditions under which the Municipality can resort to the Magistrate are fulfilled. Having come to this conclusion the learned Judicial Commissioner held that a revision against the Magistrate 's order was competent. In our opinion this decision does not correctly represent the true legal position with regard to the character of the proceedings under section 234 and the status of the Magistrate who entertains them. In Re Dinbai Jijibhai Khambatta (2) the Bombay High Court held that the order made, by a Magistrate under section 161(2) of the Bombay District Municipalities Act, 1901 (Bombay III of 1901) can be revised by the High Court under section 435 of the Code of Criminal Procedure. This decision was based on the ground that the former part of section 161 was purely judicial and it was held that the latter part of the said section though not clearly judicial should be deemed to partake of the same character as the former part. Thus the decision turned upon the nature of the provisions contained in section 161(2). In V. B. D 'Monte vs Bandra Borough Municipality(1) a Full Bench of the Bombay High Court, while dealing with a corresponding provision of the Bombay Municipal Boroughs Act XVIII of 1925, namely, section 110, has held that in exercising its revisional jurisdiction under section 110 the High Court is exercising a special jurisdiction conferred upon it by the said section and not the jurisdiction conferred under section 435 of the Code of Criminal Procedure. According to this (1) Ajmer Merwara Law journal, Vol. V, P. 92. (2) Bom. (3) I.L.R. 275 decision the matter coming before the High Court in such revision is of civil nature and so the revisional application would lie to the High Court on its civil side and not on its criminal side. It is significant that the decision in the case of Emperor vs Devappa Ramappa (1) which took a contrary view was not followed. In Re Dalsukhram Hurgovandas (2) the Bombay High Court had occasion to consider the nature of the proceedings contemplated by section 86 of the Bombay District Municipal Act III of 1901. Under the said section a Magistrate is empowered to hear an appeal specified in the said section; and it was held that in hearing the said appeals the Magistrate is merely an appellate authority having jurisdiction to deal with questions of civil liability. He is therefore not an inferior criminal court and as such his orders are not subject to the revisional jurisdiction of the High Court under section 435 of the Code of Criminal Procedure. The Madhya Bharat High Court had occasion to consider a similar question under section 153 of the Gwalior Municipal Act (1993 Smt.) in Municipal Committee, Lashkar vs Shahabuddin (3). Under the said section an application can be made by the Municipality for recovering the cost of the work from the person in default. It was held that the order passed in the said proceedings cannot be revised by the High Court under section 435 because the order is an administrative order and that there was no doubt that the Magistrate was not an inferior criminal court. In Mithan Musammat vs The Municipal Board of Agra & Anr., (4) the Allahabad High Court has held that a Magistrate passing an order under section 247(1) of the United Provinces Municipalities Act, 1926 does not do so as an inferior criminal court within the meaning of section 435 of the Code of Criminal Procedure. To the same effect is the decision of the Allahabad High Court in Madho Ram vs Rex (1). We have referred to these decisions only to illustrate that in dealing with similar provisions under the (1) (3) A.I.R. (39) 1952 M.B. 48. (2) (4) I.L.R. (1956) 2 All. (5) I.L.R. (1950) All. 276 municipal law different High Courts seem to have taken the view that Magistrates entertaining recovery proceedings under the appropriate statutory provisions are not inferior criminal courts under the Code of Criminal Procedure. Though we have referred to these decisions we wish to make it clear that we should not be taken to have expressed any opinion about the correctness or otherwise of the views taken by the different High Courts in regard to the questions raised before them. The result is the appeal fails and is dismissed. Appeal dismissed.

On the failure of the appellant to carry out the requisition by the Municipality to execute certain repairs to its property the Municipality carried out the said repairs after giving due notice, the cost of which became recoverable from the appellant as tax under section 222(4) of the Ajmer Merwara Municipalities Regulation. The Municipality applied under section 234 Of the Regulation to the Additional Tehsildar and Magistrate, II Class, Ajmer for the recovery of the amount of cost incurred by them, and the magistrate passed an order calling upon the appellant to pay the dues. Against this order the appellant preferred a criminal revision application in the court of Sessions judge which was rejected as there was no ground to interfere in revision. The appellant then moved the High Court in its revisional jurisdiction wherein the respondents raised preliminary objection that the criminal revision application filed by the appellant was incompetent since the Magistrate who entertained respondent No. 2 Municipal Committee 's application under section 234 was not an inferior criminal court under section 439 of the Criminal Procedure 266 Code, the said objection was upheld and the criminal revision application dismissed on that ground. The question was whether the Magistrate who entertained the application made before him by the Municipality under section 234 of the Regulation was an inferior criminal court under section 439 Of the Code of Criminal Procedure, and also whether an application under section 234 could be made unless the rules were framed and the forms of the notice for making a demand under section 222 were prescribed. Held, that the Proceedings initiated before a Magistrate under section 234 of the Ajmer Merwara Municipalities Regulation were merely in the nature of recovery proceedings and no other questions could be raised in the said proceedings. The nature of the enquiry contemplated by section 234 was very limited; it prima facie partook of the character of a ministerial enquiry rather than judicial enquiry and at the best could be treated as a proceeding of a civil nature but not a criminal proceeding and the Magistrate who entertained the application was not an inferior criminal court. Whatever may be the character of the proceedings, whether it was purely ministerial or judicial or quasi judicial, the Magistrate who entertained the application and held the enquiry did so because he was designated in that behalf and so he must be treated as a persona designate and not as a Magistrate functioning and exercising his authority under the Code of Criminal Procedure. He could not therefore be regarded as an inferior criminal court. Held, further, that if the rules were not prescribed as required by section 234 of the Regulation then all that could be said was that there was no form prescribed for issuing a demand notice, that did not mean that the statutory power conferred on the committee by section 222(1) to make a demand was unenforceable and an amount which was claimable by virtue of section 222(1) did not cease to be claimable just because rules had not been framed prescribing the form for making the said demand. Crown through Municipal Committee, Ajmer vs Amba Lal, Ajmer Merwara Law journal, Vol. V, 92, Re Dinbai Jijibhai Khambatta, Bom. 864, V. B. D 'Monte vs Bandra Borough Municipality, I.L.R. , Emperor vs Devappa Ramappa, , Re Dalsukhram Hurgovandas, and Municipal Committee, Lashkay vs Shahbuddin, A.I.R. 1952 M. B. 48, referred to.

In 1944 the respondent instituted a suit for the recovery of money due under an award dated July 31, 1935, whereby the appellant and his brother were directed to pay a certain amount to the respondent. The suit was dismissed by the trial Court 238 but on appeal the High Court passed a decree on March 9, 1951. During the pendency of the appeal in the High Court the Madras Agriculturists Relief Act, 1938, was amended by Act XXIII of 1948, which inter alia by adding sub section (2) to section 19 of the main Act enabled decrees passed after the commencement of the Act to be scaled down under the provisions of the Act. By cl. (ii) to section 16 of the amending Act, which came into force on January 25, 1949, it was provided that " that the amendments made by this Act shall apply to. . all suits and proceedings instituted before the commencement of the Act, in which no decree or order has been passed before such commencement ". On October 5, 1951, the appellant made an application to the trial court for scaling down the decremental debt under section 19(2) Of the Madras Agriculturists Relief Act, 1938, as amended, but the application was dismissed on the ground that the trial court had no jurisdiction to act under that sub section as the decree sought to be scaled down had been passed by the High Court. The appellant preferred an appeal to the High Court and also made a separate application for scaling down the decretal debt under section 19(2) Of the Act. The High Court took the view that section 19(2) was controlled by section 16 of the amending Act and that cl. (ii) of section 16 was applicable to the case, but that as the appellant whose appeal was pending at the commencement of the amending Act did not apply for scaling down before the decree was passed although he had the opportunity to do so, his application subsequent to the decree was barred by the principle of Yes judicature. Held, that the High Court erred in its view that in order to get relief under section 19(2) Of the Act, read with cl. (ii) of section 16 of the amending Act, the appellant must have made the application when the appeal was pending and before a decree had been passed. For the application of cl. (ii) of section 16 of the amending Act, the true test is whether the suit or proceeding was instituted before January 25, 1949, and whether no decree or order for repayment of a debt had been passed before that date, and it is not necessary that the suit or proceeding should be pending on the date of the application under section 19(2) Of the Act. In cases covered by that clause a party can ask for relief under the Act at two stages before a decree for repayment of the debt bad been passed, and also after such a decree had been passed, and since section 19(2) of the Act in express terms enables a debtor to claim a relief under the provisions of the Act after a decree had been passed, the appellant is entitled to the benefit of section 19(2) of the Act read with section i6, cl. (ii), of the amending Act. While cl. (ii) of section i6 applies to suits and proceedings which were instituted before January 25, 1949, but in which no decree or order had been passed, or the decree or final order passed had not become final, before that date, cl. (iii) applies to decrees or orders, which, though they had become final before January 25, 239 1949, were still in the state of unfinished execution and at the stage at which satisfaction had not been fully received. Venkataratnam vs Seshatnma, 1. L. R. , approved. The question whether cl. (ii) refers to decrees and orders of a declaratory nature, which are not executable but which have become final before January 25, 1949, left open. The opinion expressed in jagannatham Chetty vs Parthasarathy Iyengar, A.I.R. 1953 Mad. 777, that the word 'proceedings ' in section i6 of the amending Act must relate to proceedings instituted for repayment of a debt and not to execution proceedings which are for enforcement of a decree or order, doubted and the question left open.

The respondent served on the Railway Administration a composite notice under s 77 of the Indian Railways Act and under section So of the Code of Civil Procedure and sued for price of goods and for loss on account of nondelivery. The claim was resisted by the Railway Administration on pleas amongst others that the suit was not maintainable without an effective notice under section 77 of the Railway Act and that the suit was barred because at the date of the suit the period of limitation prescribed by article 31 of the Indian Limitation Act had expired. A full bench of the Allahabad High Court upheld the decree of the trial court in favour of the respondent holding that a claim for compensation for non delivery of goods was a claim distinct from the claim for compensation for loss, destruction or deterioration of the goods, and to the enforcement of a claim of the former variety by action in a court of law under section 77 was not a condition precedent. Held, that section 77 of the Indian Railways Act imposes a restriction on the enforcement of liability declared by section 72 of the Act and prescribes a condition precedent to the maintainability of a claim for compensation for goods lost, destroyed or deteriorated while in the custody of the railway Administration who are bailers and not insurer of goods. The section is enacted with a view to enable the railway administration to make enquiries and if possible to recover the goods and deliver them to the consignee and to prevent stale claims. Failure to deliver goods is the con sequence of loss or destruction and the cause of action for it is not distinct from the cause of action for loss or destruction, 83 648 Held, further, that merely because articles 30 and 3r of the Indian Limitation Act prescribe different points of time from which the limitation is to run for suits against carriers it cannot be inferred that the claim covered by either article is not for compensation for loss, destruction or deterioration of the goods; and the said articles 30 and 31 cannot be projected upon sections 72 and 77 of the Indian Railways Act for holding that suit for compensation for non delivery of goods does not fall within section 77. The Madras and Southern Mahratta Railway Co. Ltd. vs Haridoss Banmalidoss, Mad. 871, Hill Sawyers and Co. vs Secretary of State,, Lah. 133, Martab Ali vs Union of India, , Union of India vs Mitayagiri Pullappa, I.L.R. [1958] A.P. 323, Assam Bengal Railway Co. Ltd. vs Radhika Mohan Nath and Others, and Bengal Nagpur Railway Co. Ltd. vs Hamir Mull Chhagan Mull and Another Pat. 106, approved. Governor General in Council and Others vs Mahabir Ram and Another, (1953) I.L.R. I All. 64 and Jais Ram Ramrekha Das V. G.I.P. Railway and Another (1929) I.L.R. 8 Pat. 545, overruled.

Dismissing the appeal by special leave, the Court ^ HELD: (1) A bare reading of sections 68A to contained in Chapter IV A, which was added to the Act by Central Act 100 of 1956, makes it clear that they provide for nationalisation of road transport services. However, such nationalisation, in view of the provisions of section 68C, is not nationalisation for nationalisation 's sake but nationalisation with a view to the achievement of certain specified objects. Unless a scheme conforms to the two conditions referred to in section 68C, namely, (a) the S.T.U. is competent to prepare and publish a scheme under section 68C only after it has formed the opinion that it is necessary in the public interest that road transport services covered by the scheme should be run and operated by itself, whether to the exclusion, complete or partial, of other persons or otherwise; and (b) the necessity for the road transport services to be run and operated by the S.T.U. must flow, in its opinion, from the purpose of providing ar. efficient, adequate, economical and properly coordinated road transport service, it will fall outside the ambit of section 68C. [1012A, 1013H, 1014A C] Section 68D gives the right to certain persons, associations and authorities to file objections to a scheme published under section 68C within the specified period of thirty days of its publication and also lays down the procedure for the hearing and disposal of such objections by the State Government. The procedure provided in section 68D is designed to (a) enable parties affected by the scheme to point out flaws therein; (b) enable the State Government to find out which flaws, if any, the scheme suffers from, and (c) enable the State Government either to remedy the flaws by a suitable modification of the scheme or to rescind the scheme altogether. Under section 68(2), every objector or his representatives and the representatives of the S.T.U. have to be given an opportunity of being heard in the matter and it is only thereafter that the State Government has to exercise its power to approve or modify the scheme, which power includes the power not to approve the scheme at all and to drop it in its entirety. [1014D F] Malik Ram vs State of Rajasthan, ; at 981, followed. 1006 Section 68D does not specify the type of objections envisaged by it but then their purpose being to point out flaws in the scheme they must be confined to the matters covered by section 68C. If the opinion forming the basis of the scheme does not suffer from errors such as may render it abnoxious to the dictates of section 68C and on the other hand, conforms to the conditions laid down in that section, the scheme would be unobjectionable. Objections may thus be made to show: (a) that it is not necessary in the public interest for the concerned road transport services to be operated by the S.T.U.; (b) that it is not necessary in the public interest that such services be taken over by the S.T.U. to the complete exclusion (if such exclusion is envisaged by the scheme) of other persons and that their partial exclusion would suffice; (c) that it is not necessary in the public interest that such services shall be taken over by the S.T.U. even to the partial exclusion of others; (d) that the scheme is not calculated to provide an efficient road transport service; (e) that the scheme would not provide an adequate road transport service; (f) that the road transport service envisaged by the scheme would not be economical; or (g) that the road transport service provided for by the scheme would suffer from lack of proper coordination. [1014H, 1015A E] Objections falling outside these seven categories would not be admissible inasmuch as they would not have anything to do with any of the conditions which a scheme must satisfy in order to be covered by section 68C. [1015E F] 2. In order to find out if the scheme fulfils the requirements of section 68C a comparison of the attributes of the two services, such as quality, capacity, financial implications and coordination would certainly fall within the scope of the inquiry to be conducted by the State Government, although a comparison would not be permissible for the sole purpose of finding out whether the private operators should be given a preference over the State Transport Undertaking. If such a comparison as held to be permissible is ruled out, the result would be to shut out from the enquiry held by the State Government under section 68D most of the material relevant for determination of the validity of the scheme a result contemplated neither by section 68D nor by the decision of this Court in ; [1018A C] Objections calculated to show that a scheme does not provide a road transport service which can be considered efficient, adequate. economical o} properly coordinated would certainly lie; and the adjectives "efficient", "adequate", "economical" and "properly coordinated are not absolute but more or less comparative terms. [1017E F1]. Capital Multi Purpose Co operative Society, Bhopal and others vs The State of Madhya Pradesh and others; , , explained. Objections of a "personal" nature may be of two types. (i) those challenging the scheme on the ground that it harms an existing operator and, (ii) those which indicate the details of the services afforded by an existing operator for the purpose of showing that service envisaged by the scheme would in comparison not be efficient, adequate, etc. Objections of the second type would be admissible, while those of the first type, would be wholly irrelevant to the determination of the validity of the scheme in view of the postulates of section 68C and would, therefore, be inadmissible. [1018E G] Gullapalli Nageswara Rao and others vs Andhra Pradesh State Road Transport Corporation and Another, [1959] Suppl. 1 S.C.R. 319, distinguished. 1007 4. It is true that the State Government was acting in the discharge of its quasi judicial functions and it could devise its own procedure (in the absence of express provisions to the contrary) so that its functions could be effectively discharged. Further, when the statute gives the power to the State Government to afford to the objectors a reasonable opportunity of being heard and to take evidence, oral as well as documentary, in support of their objections, the power to send letters of request to witnesses to appear and give evidence or to produce documents is inherent in the situation and needs no statutory sanction, although the power to enforce their attendance or compel them to produce documents is lacking on account of absence of conferment thereof by a statute. [1021D F] Nehru Motor Transport Co operative Society Limited vs The State of Rajasthan, [1964] 1 S.C.R. 220, followed. Sub rule (5) of rule 5 of Uttar Pradesh State Transport Services (Development) Rules, 1958 serves a salutary purpose and, that is, that the inquiring authority may shut out all evidence which is sought to be brought on the record but which is either irrelevant or otherwise inadmissible. [1022G H, 1023A] 6. In the instant case, no right of the appellants can be said to be infringed when their applications for summoning witnesses and production of documents were rejected by the State Government and the rejection is not illegal. [1022E F] Capital Multi Purpose Co operative Society, Bhopal and Others vs The State of Madhya Pradesh and Others, ; ; applied.

The appellant was appointed as Store Keeper cum Accountant in one of the branches of the Madhya Pradesh Khadi and Village Industries Board, a body corporate constituted under the M.P. Khadi and Village Industries Act, 1959. His services were terminated by an Order dated 23.9.1964 after giving one month 's notice. The termination Was challenged before the Labour Court as amounting to retrenchment because it hat been passed without complying with provisions of the M.P. Industrial Relations Act, 1960, the charge sheet that was given to him on 27.4.1964 was based on false and baseless grounds and no enquiry was held prior to removal. The appellant claimed reinstatement with full wages. The Respondent Board contested the application contending that the Board was not an industry and that neither the M.P. Industrial Relations Act, 1960 nor the applied to it. The Labour Court held that the termination of the services of the appellant amounted to retrenchment, set aside the Order of termination and directed reinstatement with half salary from the date of the Order till reinstatement. The Board preferred a revision. The Industrial Court affirm ed the order of the Labour Court and dismissed the revision petition. 642 The Board filed a petition under article 225 and 227. The High Court allowed the writ petition, quashed the order of the Industrial Court and remitted the case to it to decide the facts afresh. The Industrial Court after taking fresh evidence, again held in favour of the appellant, reaffirming its previous decision to reinstate the appellant. The Board again moved the High Court, which set aside the orders of the Industrial Court and the Labour Court on the ground that they acted without jurisdiction. The appellant appealed to this Court by certificate which was resisted by the Board on two grounds: (i) that it is not an industry within the meaning of the Act and (ii) that it does not employ more than 100 persons. Allowing the appeal of the appellant employee, ^ HELD: 1. The order passed by the High Court is set aside and that of the Labour Court and the Industrial Court are restored. [651 B C] 2. The M.P. Industrial Relations Act, 1960 is a separate Act in the State of Madhya Pradesh to regulate the relations of employees in certain matters and makes provisions for settlement of Industrial disputes. Any concern, to become an industry, has to satisfy the definitions of "industry" and "undertaking" as contained in sections 2(19) and 2(33) thereof. Such concerns have to satisfy yet another condition to attract the provisions of the said Act which relates to the number of the employees the concern employs. Notification No. 9952 XVI dated 31st December, 1960 issued under sub 8. (3) of 8. 1 of the Act, makes the provisions of the Act applicable only to an undertaking in the industries specified in the Schedule wherein the number of the employees on any date during Twelve months preceeding or on the date of the notification or any day thereafter was or is more than one hundred. In the instant case, the evidence on record admits of no doubt that the Board employed more than 100 persons. [645 A H; 646 A 4; 647 C] 3. One of the functions of the Board under 8. 14 of the M.P. Khadi and Village Industries Act 1959 is "to support, encourage, assist and carry on Khadi and Village Industries and in the matters incidental to such trade or business". The evidence shows that the Board supplies raw wool to Co operative Societies, so 643 that the Societies can engage themselves in useful work. The Society after weaving raw wool, convert them into spun blankets and supply them to the Board. The blankets so spun are not the properties of the Societies. They have to be given back to the Board. The blankets so supplied from various centres to the Board, have necessarily to be sold in the open market. This act of sale would clearly come within the definition of the word 'trade ' or 'business ' as contemplated in Section 2(19) of the Act. m e conclusion is, therefore, irresistible that the Board engages itself in the business of selling blankets. It has, therefore, to be held that the Board is an 'industry ' within the meaning of the Act. [650 B D; 651 A B]

At the relevant time the appellant was in the service of the State of Bihar as officiating Inspector of police. After a departmental inquiry against him the report of the enquiry officer was submitted to the Inspector General of Police with the recommendation that the appellant should be given exemplary punishment. Under section 7 of the the Inspector General had power to impose in suitable cases penalty of dismissal, suspension and reduction. The Inspector General exonerated the appellant, from the charges laid against him but on the basis of certain adverse remarks in the confidential character roll of the appellant he passed an order reverting the appellant to the substantive rank of sub inspector of police for a period of one year. These adverse remarks had never been notified to the appellant nor was,any opportunity to explain them ever offered to him before the order of reversion was passed. In appeal the State Government set aside the order of reversion passed by the Inspector General on the ground that no opportunity had been given to the appellant to explain the adverse remarks, but the Government instead passed an order of dismissal disagreeing with the findings of the Inspector General and agreeing with the findings given by the enquiry officer by whom the appellant had been found guilty. On further appeal to the Governor having been dismissed by the Government the appellant filed a writ petition in the High Court. The High Court allowed the writ petition but directed that the appellant 's appeal should go back to the government for disposal according to law. The Government thereupon served notices on the appellant to show cause why he should not be dismissed from service. The notice was issued oh the strength of rr. 851(b) and 853 of the Bihar and Orissa Police Manual, 1930. The appellant thereupon gave his reply. About a year after the High Court 's order quashing the Government 's order of dismissal, the Government issued an order reinstating the appellant but at the same time suspending him from service. This was followed by an order dismissing the appellant from service. The appellant once more filed a petition in the High Court which was dismissed in liming. By special leave the present appeal, was filed. The question for consideration was, whether it was competent for the Government, in an appeal filed by the appellant against the order of reversion passed by the Inspect(* General of Police to set aside the findings of that officer by which he exonerated the appellant from charges against him, which findings were not appealed against by the department, and then pass an order of dismissal accepting the findings of the enquiry officer. HELD:(1) The Act itself confers on the Inspector General power to impose in suitable cases the penalty of dismissal, suspension and reduc L1100Sup. Cl/71 864 tion,subject to the provisions of article 311 and the rules made under the Act. The power of superintendence conferred, on the State Government by s.3 must, therefore, be read in the light of the provisions of section 7 under which the legislature has conferred specified powers to the officers mentioned therein. Further, an appeal before the Government having been provided for under r. 851 (b), presumably both by the delinquent police officer, as also the department, if aggrieved by an order passed by the Inspector General, there would also be no question of the Government exercising its general power of superintendence under section 3 of the Act. The exercise of such a power is ordinarily possible when there is no provision for an appeal unless there are other provisions providing for it. [867 D 869 A] (ii)Under r. 851(b) the only question before the Government was whether the order of revision should be sustained or not. There was no other matter by way of an appeal before the Government by the department or by anyone else being aggrieved against the order of the Inspector General by which he held that the charges against the appellant had not been established. That being so, the Government could pass in exercise of its appellate power, under r. 851 (b) such an order as it ' thought fit in the appeal filed by the appellant i.e., either upholding the order of reversion or setting it aside. In the absence of any other appeal, the Government could not sit in judgment over the findings of the Inspector General given by him under the power conferred on him by section 7 of the Act [868 E G] (iii)The order of the Govertunent could not also be defended under r. 853. Assuming that under r. 853 the Government could suo moto revise the order of the Inspector General, on appeal having been filed before it, it could not so act. The fact that the power of revision is conferred on the authority possessed of appellate power indicates that the power of revision is intended to be used when an appeal could not for some reason be filed and the appeuate authority felt that the order was so unjust or unreasonable that it should act under its revisional power. That wae not the case of the Government in the present case. [869 D E] [whether the order of the Government could be defended under r. 853A could not be considered because the existence of the rule was not proved.]

The appellant was elected to the Madras Legislative Council from the Madras District Graduates Constituency. His election was challenged by the Respondent, his nearest rival candidate by an election petition alleging, mainly, that a large number of cars had been employed for the conveyance of voters to the polling booths in violation of section 123(5) of the Representation of the People Act, 1951. The High Court held that the corrupt practice was established and set aside the appellant 's election. It also declared the respondent elected in his place. The original order passed by the High Court did not :name the appellant as guilty of corrupt practice but the Court, by a subsequent order reviewing its previous order, gave a declaration to that effect. In the appeal to this Court, it was contended by the appellant that the plea in the petition regarding violation of section 123(5) was vague and not sufficiently defined so as to give him notice of the charge he had to meet, and furthermore, that the learned Judge who tried the case improved both the pleading on the subject and the evidence led by the election petitioner by calling certain witnesses and looking into documents which he had no power to do. It was therefore contended that all the evidence which the learned Judge collected suo motu should not be looked at and if the case of the petitioner was confined to the bare plea raised, the petition would deserve to be dismissed because it was not clear in the plea and was lacking in proof. HELD: dismissing the appeal: On the facts, the High Court had rightly found that many cars were employed for the conveyance of voters in the constituency. The circumstantial chain of evidence was sufficient to show the connection between the appellant and the use of the cars for the conveyance of voters. The corrupt practice under section 123(5) was therefore brought home. A B] (i) The plea in the petition in essence was that cars were used for the purpose of conveying voters contrary to the prohibition contained in the Election Law. The names of the booths and the divisions in which the booths were situated together with the particulars of the cars and the persons primarily concerned with cars at the polling booths had been mentioned. The connection of the appellant with the use of the cars had been specifically pleaded. Sufficient particulars of the allegation had therefore been given and the rest were matters of evidence which did not require to be pleaded. (ii) The power of a Civil Court to summon court witnesses is contained in O. XVI r. 14 of the Co& of Civil Procedure. The Representation of People Act enjoins that all the powers under the Code can be exercised and all the procedure as far as may be ,applicable to the trial 1020 of civil suits may be followed in the trial of election petitions. The court trying an election petition therefore has the power to summon a Court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence. The policy of election law seem to be that for the establishment of purity of elections, investigation into to be that for the nasal factices including corrupt practices at elections all allegations of malpractices include corrupt practices at elections should be thoroughly made. In the present case a large number of cars were obviously used presumably for the purpose of carrying voters to the booths. In the face of this voluminous evidence it was open to the judge, if evidence was available to establish who had procured or hired judge, summon witnesses who could depose to the same. Such a vehicles, to exercised by the learned judge . [1028 B F] (iii) In the present case it was not possible to reach the conclusion the voters were brought to the polling booths in violation of that 23(5), the result de the election had been materially affected. In a single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which the appellant had got, had gone to one of the other candidates who were eliminated at the earlier counts, those candidates could have won. The declaration of the respondent 's election would be merely a guess or surmise as to the nature of the voting which would have taken place if the corrupt practice had not been perpetrated and the High Court 's direction declaring him elected must therefore be set aside. [1032 B D] (iv) The appellant was properly named as guilty of corrupt practice although the order was incorporated by the learned Judge through a review. It was his duty to have named persons who had been guilty of corrupt practice and he made this up later. There is no need 'for any specific power for review since the power to name any person guilty of corrupt Practice is already contained in the Act. Whether it comes in the original judgment or by a supplementary or complementary order, is not much to the purpose that order was correctly made. [1032 E]

The appellant had leased some land from the Government of Rajasthan for mining gypsum. A dispute .arose between the parties regarding the rate of royalty payable by the appel lant. The appellant 's revision petition against the les sor 's decision to charge at the higher rate was dismissed by the Central Government and then his writ petition was dis missed by the High Court on the grounds that the matter involved determination of disputed questions of fact, and that an alternative remedy has been availed of by the appel lant. Dismissing the appeal the Court,. HELD: The extent of purity of the gypsum won by the appellant is a question of fact. 'Furthermore, after the dismissal of the writ petition the appellant has filed a suit, in which he has agitated the same question which is the subject matter of the writ petition. The appellant cannot pursue two parallel remedies in respect of the same matter at the same time.

160 of 1952. Contempt of Court proceedings against the Editor, Printer and Publisher of the "Times of India" (Daily), Bombay and Delhi, for publishing a leading article in their paper of October 30, 1952, entitled A Disturbing Decision ". M. C. Setalvad, Attorney General for India (P. A. Mehta, with him) (amicus curiae). N. C. Chatterjee (Nur ud Din Ahmad and A. E. Dutt, with him) for the contemners. December 12. The Order of the Court was delivered by MAHAJAN J. In its issue of the 30th October, 1952, the " Times of India", a daily newspaper published in Bombay and New Delhi, a leading article was published under the heading " A disturbing decision ". The burden of it was that in a singularly oblique and infelicitous manner the Supreme Court had by a majority decision tolled the knell of the much maligned dual system prevailing in the Calcutta and Bombay High Courts by holding that the 217 right to practise in any High Court conferred on advocates of the Supreme Court, made the rules in force in those High Courts requiring advocates appearing on the Original Side to be instructed by attorneys inapplicable to them. The article concluded with the following passage: " The fact of the matter appears to be that in the higher legal latitudes at New Delhi and elsewhere the dual system is regarded as obsolete and anomalous. There is a tell tale note at the top of the rules framed by the Supreme Court for enrolment of advocates and agents to the effect that the rules were subject to revision and the judges had under consideration a proposal for abolishing the dual system. Abolish it by 'all means if the system has outgrown its usefulness and is found incongruous in the new setting of a democratic Constitution. But to achieve a dubious or even a laudable purpose by straining the law is hardly edifying. Politics and policies have no place in the pure region of the law; and courts of law would serve the country and the Constitution better by discarding all extraneous considerations and uncompromisingly observing divine detachment which is the glory of law and the guarantee of justice." No objection could have been taken to the article had it merely preached to the courts of law the sermon of divine detachment. But when it proceeded to attribute improper motives to the judges, it not only transgressed the limits of fair and bona fide criticism but had a clear tendency to affect the dignity and prestige of this Court. The article in question was thus a gross contempt of court. It is obvious that if an impression is created in the minds of the public that the judges in the highest court in the land 'act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater , mischief than that can possibly be imagined. It was for this reason that the rule was issued against the respondents. 218 We are happy to find that the Editor, Printer and the Publisher of the paper in their respective affidavits filed in these proceedings have frankly stated that they now realize that in the offending article they had exceeded the limits of legitimate criticism in that words or expressions which can be construed as casting reflection upon the court and constituting Contempt had crept into it. They have expressed sincere regret and have tendered unreserved and unqualified apology for this first lapse of theirs. We would like to observe that it is not the practice of this Court to issue such rules except in very grave and serious cases and it is never over sensitive to public criticism; but *hen there is danger of grave mischief being done in the matter of administration of justice,. the animadversion cannot be ignored and viewed with placid equanimity. In this 'matter we are of the same opinion as was expressed by their Lordships of the Privy Council in Andre Paul vs Attorney General of Trinidad (1), Where they observed as follows: "The path of criticism is A public way: the wrong headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men. " In view of the unconditional apology tendered by the respondents and the undertaking given by them to give wide publicity to their regret, we have decided to drop further proceedings and we accept the apology and discharge the rule without any order as to costs. Rule discharged. Agent for the contemners: Rajinder Narain. (1) A.I.R. 1936 P.C. 141.

It is not the practice of the Supreme Court to issue a rule for contempt of Court except in very grave and serious cases and it is never over sensitive to public criticism; but when there is danger of grave mischief being done in the matter of administration of justice, the animadversion will not be ignored and viewed with placid equanimity. A leading article in the " Times of India " on the judgment of the Supreme Court in Aswini Kumar Ghose vs Arabinda Bose and Another ([1953] S.C.R. 1) contained the following statements: "the fact of the matter is that in the higher legal latitudes in Delhi the dual system was regarded as obsolete and anomalous. . There is a, tell tale note at the top of the rules framed by the Supreme Court for enrolment of advocates and agents to the effect that the rules were subject to revision and the Judges had under consideration a proposal for abolishing the dual system. . To achieve a dubious or even a laudable purpose by straining the law is hardly 216 edifying. Politics and policies have no place in the pure region of the law and Courts of law would serve the country and the Constitution better by discarding all extraneous considerations and uncompromisingly observing divine detachment. . " In proceedings for contempt of Court: Held, that if the articles had merely preached to Courts of law a sermon of divine detachment no objection could be taken, but in attributing improper motives to the judges, the article not only transgressed the limits of fair and bona fide criticism but had a clear tendency to affect the dignity and prestige of the Court and it was therefore a gross contempt of court. If an impression is created in the minds of the public that the judges of the highest court in the land act on extraneous considerations in deciding cases the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined. [In view of the unconditional apology tendered by the Editor, Printer and Publisher and the undertaking given by them to give wide publicity to their regret, the proceedings were dropped.] Andrew Paul vs Attorney General of Trinidad (A.I.R. referred to.

Dismissing the defendant 's appeal and affirming the decree in favour of the plaintiffs, the Court. ^ HELD: A presumption of truth attaches to the entries in the Jamabandi for the year 1959 60 showing the defendant respondents as a tenant, in view of the provisions of Section 44 of the Punjab Land Revenue Act. That presumption is no doubt rebuttable, but, in the instant case, no attempt has been made to displace it. [407C D] Further, once that presumption is raised, still another comes to the aid of respondent No. 1 by reason of the rule contained in Section 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It may, therefore, be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit. [407D E]

Apprehending that the Government was considering a change of policy framed in 1964 for choosing an officer to become brigadier in charge of military farms the petitioner moved the High Court for the issue of a writ. On directions from the High Court to the Defence Department to select the best man for the post the Department reported that the petitioner and respondent were equal in merit, but since the respondent in the review petition was senior as colonel, he be chosen for the post. After considering the legal import of the 1964 policy the High Court allowed the petitioner to become a brigadier The respondent 's petition for special leave was granted by this Court. The Central Government was given one month 's time to evolve its policy, if necessary. That not having been done the respondent moved this Court again as to the non compliance and for consequential orders. On May 9, 1980 the Court passed orders that the respondent be appointed as brigadier. The petitioner sought review of that order. ^ HELD: A review is not a routine procedure. An earlier order cannot be reviewed unless the Court is satisfied that material error manifest on the face of the order undermines its soundness or results in miscarriage of justice. A review of a judgment is a serious step and resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. In the instant case the relief of review is not justified. [173G H] Chandra Kanta vs Sheikh Habib ; at 933 34, followed. From the affidavits filed by the Government in the Court on May 9. 1980 it is obvious that the Government had decided on abandoning the 1964 policy and was actually pursuing steps to fashion a new policy. Therefore, no rights on the old basis, if any, can enure to the benefit of the petitioner especially because he relied on his third rank in a selection for one vacancy made in 1971 That apart, a selection of 1979 turned out in favour of the respondent. The petitioner is postponed but by a few months and the respondent has been far senior as colonel and will retire in August, 1980. The conspectus of circumstances hardly persuades the Court that there is injustice in the order of May 7th or May 9th. [173D E]

This appeal was directed against an order of the Madras High Court issuing a writ of mandamus at the instance of the respondent restraining the appellants from giving effect to two circulars issued by the Railway Board reserving selection posts in Class III of the Railway service in favour of the members of the Scheduled Castes and Scheduled Tribes with retrospective operation. It was urged on behalf of the respondent that the Constitution made a clear distinction between backward classes on the one hand and Scheduled Castes and Scheduled Tribes on the other, and that article 16(4) applied only to reservation of posts at the stage of appointment and not to posts for promotions after appointment and, therefore, the circulars which fell 587 outside the scope of article i6(4) and contravened article i6(1). This was denied by the appellant who pleaded the contrary. The first circular, inter alia, prescribed a quota of reservation for( selection posts and gave retrospective effect to it and the second ' gave guidance and directions as to how the first should be implemented. A subsequent clarification issued by the Board stated that no reversion of staff already promoted to selection posts was contemplated. The High Court held that the expression "backward classes" in article 16(4) included members of the Scheduled Castes and Scheduled Tribes, but that the word ,appointments ' did not denote promotion and the word 'posts ' meant posts outside the civil services and thus the impugned circulars were not covered by article i6(4) and were ultra vires. Held, (per Gajendragadkar, Sarkar, and Das Gupta, JJ.), that the impugned circulars were well within the ambit of article 16(4) Of the Constitution and the appeal must succeed. Articles 16(i) and 16(2) of the Constitution are intended to give effect to article 14 and article 15(1) Of the Constitution and these Articles form parts of the same constitutional code of guarantees and supplement each other. Article 16(i) should, therefore, be construed in a broad and general, and not pedantic and technical way. So construed, "matters relating to employment" cannot mean merely matters prior to the act of appointment nor can 'appointment to any office ' mean merely the initial appointment but must include all matters relating to employment, whether prior or subsequent to the employment, that are either incidental to such employment or form part of its terms and conditions and also include promotion to a selection post. Although Art.16(4), which in substance is an exception to articles 16(1) and 16(2) and should, therefore, be strictly construed, the court cannot in construing it overlook the extreme solicitude shown by the Constitution for the advancement of socially and educationally backward classes of citizens. The scope of article 16(4), though not as extensive as that of article 16(1) and (2), and some of the matters relating to employment such as salary, increment, gratuity, pension and the age of superannuation, must fall outside its non obstante clause, there can be no doubt that it must include appointments and posts in the services. To put a narrower construction on the word 'posts ' would be to defeat the object and the underlying policy ' Article 16(4), therefore, authorises the state to provide for the reservation of appointments as well as selection posts. It is not correct to say that the legislative history of the word 'posts ' shows that it has invariably been used to mean posts outside the services, Neither the relevant provisions of the Constitution nor those of the Constitution Act of 1935 justify such a conclusion. It is the context in which that word is used that must determine its meaning. 588 But in exercising its powers under the Article it should be the duty of the State to harmonise the claims of the backward classes and those of the other employees consistently with the maintenance of an efficient administration as contemplated by article 335 of the Constitution. Per Wanchoo, J. Article 16(4) which is in the nature of an exception or proviso to article 16(1) cannot be allowed to nullify equality of opportunity guaranteed to all citizens by that Article. Article 16(4) implies, as borne out by article 335, that the reservation of appointments or posts for backward classes cannot cover all or even a majority of appointments and posts and the words "not adequately represented", which provide the key to the interpretation of article 16(4), do not convey any idea of quality but mean sufficiency of numerical representation in a particular service, taken not by its grades, but as a whole. Appointments must, therefore, mean initial appointments, and reservation of appointments, the reservation of a percentage of initial appointments. Posts refer to the total number of posts in the service and reservation of posts means reservation of a certain percentage of posts out of total posts in the service. Per Ayyangar, J. Article 16(4), concerned as it is with the right to State employment, has to be read and construed in the light of other provisions relating to services contained in Part XIV of the Constitution and, particularly, article 335. So construed, the word "post" in that Article must mean posts not in the services but posts outside the services. Assuming that was not so, and the word 'posts ' meant posts in the services, the inadequacy of representation sought to be redressed by article 16(4) means quantitative deficiency of representation in a particular service as a whole and not in its grades taken separately, nor in respect of each single post in the service. Read in the light of article 335, article 16(4) can only refer to appointments to the services at the initial stage and not at different stages after the appointment has taken place. Article 16(4) contemplates prospective reservation of appointments and posts and does not authorise retrospective reservation.

% The Deputy Assessor and Collector of the Assessment and Collection Department of the Municipal Corporation of Delhi, issued an order to the petitioners, demanding payment of Rs.14,07,328 as composite arrears of the property tax, fire tax, water tax, scavenging tax and education tax. The petitioners moved this Court under Article 32 of the Constitution for the issuance of a writ of certiorari, quashing the demand order. Disposing of the Writ Petition, without expressing any opinion on the merits of the case, and allowing liberty to the petitioners to file, if so advised, a writ petition before the High Court under Article 226 of the F. Constitution, the Court, ^ HELD: The scope of the powers of the High Courts under Article 226 of the Constitution is wider than the scope of the powers of this Court under Article 32 of the Constitution. The relief prayed for in the petition is one which may be granted by the High Court. Any party aggrieved by the decision of the High Court can appeal to this Court. That some case involving the same point of law is pending in this Court, is no ground for this Court to entertain a petition, by passing the High Court. If the parties get relief in the High Court, they need not come to this Court, and, to that extent, the burden on this Court is reduced. This Court has no time today even to dispose of cases which have to be decided by it alone. A large number of cases have been pending in this Court for ten to fifteen years. If no fresh cases are filed in this Court thereafter, this Court, with its present strength of Judges, may take more than 15 years to dispose of all the pending cases. If the cases, which can be filed in the High Courts, are filed there and not in this Court, the work of this Court in its original Jurisdiction, which is a time consuming process, can be avoided, and the time saved by this 733 Court by not entertaining the case which may be filed in the High Courts, can be utilized to dispose of the old matters, [734E H; 735A E] This Court will also have the benefit of the decisions of the High Courts when it deals with an appeal against such a decision. The High Courts have judges of eminence, who have initiative, skill and enthusiasm. Their capacity should be harnessed to deal with every type of cases, arising from their respective areas, which they are competent to dispose of. If the cases, which may be filed in the High Courts are filed in this Court, this will affect the initiative of the High Courts. The dignity, majesty and efficiency of the High Courts should be preserved. The taking over by this Court of the work which the High Courts can handle, may undermine the capacity and efficiency of the High Courts, which should be avoided. [735E F] The hearing of a case at the level of a High Court is also more convenient from several angles and will be cheaper to the parties. That saves a lot of time too. It is easier for the clients to give instructions to the lawyers. There are eminent lawyers practising in the High Courts, with wide experience in handling different kinds of cases. The lawyers there are fully aware of every legislation in their States. [734G]

Where the High Court dismisses a writ petition under article 226 of the Constitution after hearing the matter on the merits on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified, a subsequent petition to the Supreme Court under article 32 of the Constitution on the same facts and for the same reliefs filed by the same party would be barred by the general principle of res judicata. There is no substance in the plea that the judgment of the High Court cannot be treated as res judicata because it cannot 575 under article 226 entertain a petition under article 32 of the Constitution. Citizens have ordinarily the right to invoke article 32 for appropriate relief if their fundamental rights are illegally on unconstitutionally violated and it is incorrect to say that article 32 merely gives this Court a discretionary power as article 226 does to the High Court. Basheshar Noth vs Commissioner of Income tax, Delhi and Rajasthan, [1959] SUPP. 1 S.C.R. 528, referred to. Laxmanappa Hanumantappa jamkhandi vs The Union of India; , , and Diwan Bahadur Seth Gopal Das Mohla vs The Union of India, ; , considered. The right given to the citizens to move this Court under article 32 is itself a fundamental right and cannot be circumscribed or curtailed except as provided by the Constitution. The expression "appropriate proceedings" in article 32,(1), properly construed, must mean such proceedings as may be appropriate to the nature of the order, direction or writ the petitioner seeks from this Court and not appropriate to the nature of the case. Romesh Thappar vs The State of Madras, ; , referred to, Even so the general principle of res judicata, which has it. ; foundation on considerations of public policy, namely, (1) that binding decisions of courts of competent jurisdiction should be final and (2) that no person should be made to face the same kind of litigation twice over, is not a mere technical rule that cannot be applied to petitions under article 32 of the Constitution, Duchess of Kingston 's case, 2 Smith Lead. 13th E d. 644, referred to. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under article 226 passed after a hearing on merits as aforesaid must bind the parties till set aside in appeal as provided by the Constitution and cannot be circumvented by a petition under article 32. Pandit M. section M. Sharma vs Dr. Shree Krishna Sinha, and Raj Lakshmi Dasi vs Banamali Sen, [1053] S.C.R. 154, relied on. Janardan Reddy vs The State of Hyderabad, ; , Syed Qasion Rezvi vs The State of Hyderabad, [1953] S.C.R. 589 and Bhagubhai Dullabhabhai Bhandari vs The District magistrate, Thana; , , referred to. It was not correct to say that since remedies under article 226 and article 32 were in the nature of alternate remedies the adoption of one could not bar the adoption of the other, Mussammat Gulab Koer vs Badshah Bahadur, (1909) 13 1197 held inapplicable. 576 Consequently, (1) where the petition under article 226 is considered on the merits as a contested matter and dismissed by the High Court, the decision pronounced is binding on the parties unless modified or reversed by appeal or other appropriate proceedings under the Constitution; (2) Where the petition under article 226 is dismissed I not on the merits but because of laches of the party applying for the writ or because an alternative remedy is available to him, such dismissal is no bar to a subsequent petition under article 32 except in cases where the facts found by the High Court may themselves be relevant even under article 32; (3) Where the writ petition is dismissed in limine and an order is pronounced, whether or not such dismissal is a bar must depend on the nature of the order; (4) if the petition is dismissed in limine without a speaking order, or as withdrawn, there can be no bar of res judicata.

In the election to Parliament from a constituency in Punjab the respondent was declared elected. The appellant filed an election petition alleging, inter alia, (i) that at least 15,000 invalid and void votes had been included and counted in favour of the respondent, and (ii) that the Chief Minister of Punjab, who was the brother of the respondent, directed, (a) the distribution to Harijans of large sums of money for construction of Dharamshalas, and (b) the issue of a large number of gun licences, as gratification for inducing voters to vote for the respondent and that thereby, the corrupt practice of bribery under section 123(1), Representation of the People Act, 1951, was committed. The High Court dismissed the election petition Dismissing the appeal to this Court, ^ HELD: (1) On the evidence, the High Court was right in holding that the appellant had not succeeded in establishing the allegation regarding the 15,000 votes. [889F] (a) Rule 56 of the Conduct of Elections Rules as amended in 1971, provides that only a ballot paper which did not contain both the mark and the signature of the polling officer would be invalid. Even then it does not automatically become invalid. If the Returning Officer was satisifed that the failure to affix the stamp or signature was due to the fault of the polling officer but the ballot paper was itself genuine he could include it among the valid ballot papers, because, under pressure of work, the polling officer might have failed either to affix the stamp or his signature. [887F H] (b) The evidence adduced on behalf of the appellant is not consistent as to the ground of invalidity of the ballot papers; as to how the number of 15,000 was arrived at; and as to whether they were counted in favour of the respondent or both the appellant and the respondent. [889E F] (c) There cannot be any hard and fast rule as to the circumstances when an order of recount would be permissible and it always depends upon the circumstances of the case. On the facts of the present case, there is not the slightest justification for ordering a recount. [889G H] (2) In the case of both the allegations regarding Dharamshalas and gun licences, there was no gratification offered and there was no bargaining for votes, and hence there was no corrupt practice. [896B] (a) The word 'gratification ' in section 123(1) should be deemed to refer only to cases where a gift is made of something which gives a material advantage to the recipient. There is a distinction between licences which give a material advantage and those which do not. For example, a licence in a prohibition area to deal in liqueur confers a material advantage on the licensee, whereas a licence enabling a person to imbibe liqueur in such an area gives him no material advantage. It is only the grant of the former that might amount to gratification. Arms licence is a licence for regulatory purposes. Its possession give no material advantage to its possessor. [893C G] (b) To constitute the corrupt practice of bribery under section 123(1) there must be a bargain for votes. But a bargain for the purposes of the section does not mean that the candidate or his agent makes an offer and the voter accepts it in the sense that he promises to vote. It is not necessary that the 885 voter should say that he would vote and that thereafter only the candidate or his agent should pay the money. It is enough if the candidate or his agent makes the gift or promise on that condition. [889G 890A] (c) In the present case, the State Government had set apart a sum of Rs. 50 lacs for the purpose of construction of Dharamshalas for Harijans. A sum of Rs. 3 lacs was spent towards the end of the financial year, in the district in which this particular parliamentary constituency was situate. Punjab has 11 districts and it cannot, therefore, be said that, the amount is disproportionately large. [889H 890A] (d) The anxiety to spend the money towards the end of financial year is also natural. [890A B] (e) It may not be setting up a high standard and it may be very desirable that whatever is done for the people should be done by persons in authority throughout the period of their office and not when election time is approaching. But where a large section of the people get an amentiy which they ought, in any case to get, and which they got probably a little more easily because it was election time, it cannot be said that the person in authority making a promise and holding out that he would carry out many remedial measures to benefit the people was resorting to bribery or bargaining for votes. [890B D] (f) The issue of the unusually large number of gun licences may be an improper use of power. But, there is no evidence regarding bargaining for votes by the promise of gun licences. [890D G, 893G] (g) Maganlal Bagdi vs Hari Vishnu Kamath, Khadar Sheriff vs Munnuswami Gounder & Ors. A.I.R. 1955 S.C. 775, Ghasi Ram vs Dal Singh ; , Radha Krsihna Shukla vs Tara Chand Maheshwar , amirchand vs Surendra Lal Dha E.L.R. 57, Om Prabha Jain vs Abnash Chand & Anr. ; ,Bhanu Kumar vs Mohan Lal ; , referred to.

In an ejectment suit under the Delhi & Ajmer Rent Control Act, 1952, the trial Judge decreed the suit and on appeal under s.34 of the Act the Additional District Judge confirmed 934 the decision. The Act did not provide for a second appeal, and under section 35 (1) a revision was filed against the Order of the Additional District Judge The single Judge of the Punjab High Court following a previous decision of the same High Court, was of opinion that in assessment as all the evidence was not considered it was competent for him to reconsider the concurrent findings of the courts below. The question is whether the High Court in exercise of its revisional powers is entitled to re assess the value of the evidence and to substitute its own conclusions of facts in place of those reached by the courts below. ^ Held, (per Sinha, C. J., Hidayatullah and shah, JJ, that though section 35 of the Delhi and Ajmer Rent Control Act is worded in general terms, but it does not create a right to have the case re heard. The distinction between an appeal and revision is a real one. A right to appeal carries with it right of re hearing on law as well as fact, unless the statute conferring the right to appeal limits the re hearing in some way. The power to hear a revision is generally given to a superior court so that it may satisfy, itself that a particular case decided according to law. The phrase "according to law" in section 35 of the Act refers to the decision as a whole, and is not to be equated to errors of law or of fact simplicitor. All that the High Court can see is that these has been no miscarriage of justice and that the decision is according to law in the sense mentioned. per Kapur, J. The power under section 35 (1) of the Act of interference by the High Court, is not restricted to a proper trial according to law or error in regard to onus of proof or proper opportunity of being heard. It is very much wider than that when in the question of the High Court the decision is erroneous on a question of law which affects the merits of the case or decision is manifestly unjust the High Court is entitled to interfere. Bell and Co. Ltd. vs Waman Hemraj approved.